Carroll v. State

Full title: THOMAS C. CARROLL, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Jun 7, 2006

No. 4-05-00150-CR (Tex. App. Jun. 7, 2006)

Opinion

No. 4-05-00150-CR

Delivered and Filed: June 7, 2006. DO NOT PUBLISH.

Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-4911, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.

Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.

MEMORANDUM OPINION

Opinion by: CATHERINE STONE, Justice.

Thomas C. Carroll pled no contest to the offense of arson pursuant to a plea bargain. He was sentenced to 30 years imprisonment and fined $1200. Carroll now appeals. We affirm.

Factual and Procedural Background

On July 1, 2004, Carroll was charged by indictment with arson. The indictment included a hate crime enhancement which reads: And it is further presented in and to said Court that Defendant intentionally selected the person against whom the offense was committed, namely, Nishat Harani and the property damaged and effected as a result of the offense, namely: one building owned and occupied by Nishat Harani, because of the Defendant's bias and prejudice against a group identified by national origin and ancestry, to which the victim, Nishat Harani belonged, to wit: foreign born individuals. Generally, the offense of arson is a second degree felony; however, the addition of the hate crime enhancement raises the offense level to a first degree felony. Before trial began, Carroll filed several pretrial motions, the relevant one being Carroll's Motion to Quash Indictment. Within the motion, Carroll states that the indictment should be quashed because it "does not set forth the offense in plain and intelligible words, but is vague, indefinite and incomprehensible. . . ." Furthermore, he complains the vagueness of the indictment amounts to a violation of the Texas Constitution because it "does not properly notify [him] of the nature and the cause of the accusation." The trial court denied Carroll's Motion to Quash. Pursuant to a plea bargain, Carroll pled guilty and the trial court sentenced him to 30 years in the penitentiary to be served concurrently with two other convictions. On appeal Carroll argues: 1) the Hate Crimes Statute is unconstitutionally vague; and 2) the hate crime enhancement paragraph in the indictment was unreasonably vague. We overrule both of Carroll's issues.

Jurisdiction

The State argues that Carroll has waived his appeal pursuant to the plea bargain; thus this court should dismiss the case for a lack of jurisdiction. We disagree. "In a plea bargain case . . . a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court's permission to appeal." Tex.R.App.P. 25.2(a)(2). In the instant case, Carroll has not received permission to appeal from the trial court, but he did file pretrial motions which the trial court denied. In Stanley v. State, 111 S.W.3d 773 (Tex.App.-Fort Worth 2003, no pet.), Stanley filed a pretrial motion to suppress, which was denied. Id. at 773-74. Subsequently, he entered into a plea bargain, but the plea bargain included an agreement that Stanley waived any pretrial written motions. Id. at 774. Despite the agreement, Stanley appealed the trial court's judgment based on its denial of his motion to suppress. Id. The Stanley court held that the knowing and intelligent waiver was binding despite the language of Rule 25.2 of the Texas Rules of Appellate Procedure. Id.; see also Francis v. State, No. 2-03-335-CR, 2004 WL 915020, at *1-2 (Tex.App.-Fort Worth April 29, 2004, pet. ref'd) (mem. op.) (concluding that the defendant's ability to appeal the pretrial motion according to Rule 25.2 was waived pursuant to the specific wording in the defendant's waiver). In the instant case, Carroll's ability to appeal pretrial written motions was not waived. In fact, the plea bargain follows the wording of Rule 25.2. The agreement reads: If the punishment assessed does not exceed the punishment recommended by the prosecuting attorney (plea bargain), the trial court must give its permission to appeal any matter in the case except for those matters raised by written motion filed prior to trial and ruled upon by the Court. If a plea bargain is followed, this Court will not give permission to appeal. (Emphasis added). Unlike Stanley, Carroll has not waived his right to appeal his pretrial motions. We overrule the State's argument that this court lacks jurisdiction.

Hate Crimes Statute

Carroll contends that the Hate Crimes Statute is unconstitutional because it is vague when applied. The statute states:

In a trial of an offense . . . [for arson], the judge shall make an affirmative finding of fact and enter the affirmative finding in the judgment of the case if at the . . . trial, . . . the trier of fact determines . . . that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.

Tex. Crim. Proc. Code Ann. art. 42.014(a) (Vernon Supp. 2006). Carroll argues that the vagueness results in the failure to provide actual notice of what conduct is prohibited by the statute's terms and that it fails to establish minimal guidelines for law enforcement. See Cotton v. State, 686 S.W.2d 140, 141 (Tex.Crim.App. 1985) (holding that a statute is void for vagueness if it fails to provide a person fair notice that his conduct is prohibited by the statute or if it encourages arbitrary arrests and convictions). The State argues that this argument has been waived, and we agree. As previously mentioned regarding jurisdiction, a defendant may appeal matters raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal. Tex.R.App.P. 25.2(a)(2). While Carroll filed several pretrial motions which were ruled upon, none of his motions address the constitutionality of the Hate Crimes Statute. Even at the pretrial hearings on Carroll's motions, his counsel said, "Your Honor, we're not challenging the constitutionality of the statute, we're challenging the indictment. The indictment is vague." Thus, we overrule Carroll's first issue.

Vagueness of the Indictment

Carroll did preserve error concerning the vagueness of the indictment in his Motion to Quash. The vagueness, Carroll argues, is due to the indictment's allegation that Carroll's crime was motivated by bias and prejudice against a specific group identified by national origin or ancestry, namely "foreign born individuals." In a criminal case, the defendant is guaranteed the right to demand the nature and cause of the action against him. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App. 1988). Thus, the charging instrument itself must convey adequate notice from which the accused may prepare his defense. State v. Carter, 810 S.W.2d 197, 199 (Tex.Crim.App. 1991). A trial court should grant a motion to quash only where the language regarding the accused's conduct is so vague or indefinite that it fails to give the accused notice of the criminal act he allegedly committed. DeVaughn, 749 S.W.2d at 67. When a complaint regarding notice is claimed, the question is whether the defendant was provided with adequate notice to prepare his defense. Adams v. State, 707 S.W.2d 900, 903 (Tex.Crim.App. 1986). The first step is to determine whether the indictment failed to convey some requisite item of notice. Id. If notice was sufficient, the inquiry is finished; however, if insufficient, the second step is to determine whether the error was harmful. Id. "Subject to rare exceptions, an indictment which tracks the language of the . . . statute will be legally sufficient and the State need not allege facts which are merely evidentiary in nature." DeVaughn, 749 S.W.2d at 67. An appellate court will review a trial court's denial of a motion to quash under an abuse of discretion standard. Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App. 1981). An abuse of discretion occurs when a trial court's decision is so clearly wrong as to lie outside the zone of reasonable disagreement and when the trial court acts in a manner deemed arbitrary and unreasonable without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Here, the indictment stated that Carroll intentionally selected the victim, Nishat Harani, due to Carroll's bias and prejudice against a group identified by national origin and ancestry to which the victim belongs. The indictment follows, almost verbatim, the Hate Crimes Statute, but it does further limit the group from national origin and ancestry to foreign-born individuals. The trial judge stated that the State's limitation may present "proof problems" during the case, but any problems created would be imposed on the State because it is their burden to prove at trial. We do not believe the trial court's judgment is outside the zone of reasonable disagreement. The indictment charges Carroll with arson and alleges that this crime was committed against the victim because of Carroll's bias and prejudice towards the victim's group. This group is the victim's national origin or ancestry, and this group is explicitly recognized by the statute. See Tex. Crim. Proc. Code Ann. art. 42.014(a). The trial court did not abuse its discretion in rejecting Carroll's claim that the indictment is so vague and indefinite that it failed to place Carroll on notice of the charge against him. DeVaughn, 749 S.W.2d at 67. We overrule Carroll's second issue.¹

Conclusion

Because Carroll was provided adequate notice of the charges against him in the indictment, we affirm the trial court's judgment.