Opinion
No. 05-10-00305-CR
01-25-2012
ERICK DRAKE CHARETTE, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed as Modified; Opinion Filed January 25, 2012.
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80729-09
OPINION
Before Justices Lang, Murphy, and Myers
Opinion By Justice Myers
Appellant, Erick Drake Charette, was convicted of failure to appear and sentenced to four years in prison. In two points of error, he argues the judgment should be modified and the evidence was insufficient to support the trial court's rejection of his defense. As modified, we affirm the trial court's judgment.
Background and Procedural History
On March 4, 2008, appellant was indicted for aggravated assault with a deadly weapon. The case was cause number 401-80524-08, appeal number 05-09-01387-CR, styled The State of Texas v. Erick Drake Charette. On August 27, 2008, the prosecutor and appellant's court-appointed attorney signed a "pass slip" setting a January 26, 2009 trial date for the aggravated assault case. At the time, appellant was still incarcerated.
The appeal in 05-09-01387-CR is also pending before this Court, and will be addressed in a separate opinion.
In his testimony during the trial of the instant failure to appear case, appellant's attorney did not specify whether he sent a copy of the slip to appellant, but he testified that, after signing a pass slip, he would normally return to his office and "generate a notice on the computer and send it to the client." In a handwritten letter to his attorney dated October 20, 2008, appellant indicated knowledge of the January trial date: "I do not want any delays on our part to prevent my trial on January 26th of 2009 from happening on that date or sooner."
On December 3, 2008, "Act Now Bail Bonds" (Act Now) posted a $1,500 felony surety bond to secure appellant's release in the aggravated assault case. Kathy Ellis, a supervisor and private investigator with Act Now, testified that as part of the bond process, appellant was required to fill out and sign the bond application paperwork. Under the part of the form that asked for a "present address," appellant listed a California street address, and he stated on the form that he was "going to" that address. According to Ellis, Act Now's "bond tracker" also showed that appellant provided them with a Texas address, and that he indicated he was "staying at" that address.
Among the documents appellant signed were a "Promise to Appear" and "Bond Conditions" form. Both documents contained specific warnings about the consequences of failing to check in with the bonding company or failing to appear for court settings. Ellis testified that the bonding company highlighted in yellow marker specific portions of the bond conditions form to emphasize to appellant that he was obligated to call the District Clerk's Office to check on his upcoming court dates, and that a warrant would be issued for his arrest if he breached the bond conditions or failed to appear in court. In addition, the bond conditions form noted that appellant was required to "check in" with the bonding company on a weekly basis--every Tuesday by telephone--via an automated telephone line. Appellant separately initialed that part of the form. Ellis testified that appellant was given a copy of the bond conditions and the promise to appear forms after signing them.
Ellis testified that appellant contacted the bonding company during the first week he was released from jail, but he did not "check in" for two weeks in December of 2008. After he missed his weekly check-in, the bonding company tried to reach appellant, but appellant did not return the bonding company's telephone calls. When appellant eventually spoke to the bonding company, he told them he had "moved out of the state to California," was "having financial issues," and did not know if he could "make it to court." After learning that appellant was living in California, the bonding company attempted to remove itself from the bond by filing an application to surrender the principal. This application was filed on January 23, 2009, three days before trial.
Shortly before the January 26 trial date, appellant spoke with his attorney about getting the aggravated assault trial reset because, according to the attorney's testimony, appellant said he was in California and "did not have the financial resources to get back to Texas." On January 26, 2009, the bailiff called appellant's name three times for trial on the aggravated assault charge. When appellant failed to answer, his bond was forfeited. Appellant called his attorney on the following day, and the attorney told appellant that the prosecutor "would not reset the case without [appellant's] presence to sign the pass slip." A warrant was issued for appellant's arrest, and he was subsequently arrested and brought back to Collin County. On April 9, 2009, appellant was indicted for failing to appear for trial.
Appellant testified that he lived "on the streets in Dallas" for "a week and a half or so" after being released on bond on December 4, 2008, prior to signing the bond paperwork. Appellant recalled that he signed the paperwork at the bonding company accompanied by a "witness" named "Sky" from his "AA group." According to appellant, no one told him he could not leave the state. He also claimed that he never received a copy of the bond application, the promise to appear, or the actual bond that was posted. He returned to California "sometime around" January 10, 11, or 12, 2009, using money (for bus fare) that he borrowed from his brother. Appellant testified that he learned about the January 26, 2009 trial date from one of the "pod guards" at the jail shortly before his release on bond. He did not remember discussing the trial date with anyone at the bonding company. He later admitted on cross-examination that he discussed the January 26 trial date with his attorney and with "Julio" at the bonding company, in addition to learning about the trial date from "one of the pod guards" at the jail.
Appellant testified that he spoke with his attorney in December 2008 and requested that the trial be continued because he was in California by that point, and "had very limited funds." According to appellant, the attorney told him that "he would see what he could do," but appellant "never heard back from him again after that."Appellant recalled that he may have spoken to his attorney about the trial date "very early" in January of 2009, and that he called the attorney's office "frequently" because of the continuance. He claimed that he "checked in" with Julio at the bonding company for all but one week in December, and that he spoke to Julio again on January 13, 2009, before the start of trial. In that conversation, according to appellant, Julio asked him if he "had gotten a bus ticket yet," and appellant told him that his attorney "was supposed to have gotten me a continuance and I would have [counsel] contact him if something was different." Appellant stated that he learned about the warrant for his arrest "on the internet." He was subsequently arrested in California on February 16, 2009. On cross-examination, appellant admitted that he was a convicted felon. He acknowledged that he knew about the January 26 trial date for the aggravated assault charge, that the conditions of his bond required him to show up for court settings, and that he failed to appear in court on the scheduled trial date. Appellant also testified that, other than his attorney, he did not contact the district clerk's office, the court, his bondsman, or anyone else to let them know he could not afford to return to Texas for the trial.
In response to questions from the court, appellant stated that he told his attorney he could be in court on the day of trial but "just needed to know . . . for sure . . . if there was going to be a continuance," or if the trial would take place as scheduled. Appellant acknowledged that he did not tell Julio he had no money for a return bus trip or that this was the reason for requesting a continuance of the trial date. Asked by the court whether defense counsel ever said he was "going to get you a continuance and you don't need to come," appellant replied that his attorney "didn't say I won't need to come. He said "he would see what he could do." Appellant also recalled that after he spoke to his attorney about the continuance, "the only person I could get on the phone" at his attorney's office was his attorney's assistant, "Chad." In response to the court's further questions, appellant testified that he spoke with "Chad" on six or seven occasions, and that the assistant repeatedly assured appellant the continuance had been granted. Chad never told appellant "don't come back," but when the assistant said the continuance had been granted, appellant "assumed that meant I didn't have to go."Appellant did not ask "when the continuance was set for." He called his attorney's office on January 27, the day after the scheduled trial setting, "to find out when the continuance would be," and his attorney told him the case could not be continued because appellant needed to be "there in order to sign the pass slip." Appellant added that "no one told me that before." During his trial testimony, appellant's attorney denied telling appellant that he did not have to appear in court on January 26, and that he would, in fact, have gotten in trouble for telling a client to disregard a court appearance.
In a letter to the court that was written after his 2009 extradition to Texas, appellant accused his attorney of lying to him and giving him erroneous legal advice. Appellant contended he was given permission to move to California by a bond agent at Act Now because, at the time the bond was issued, appellant "was living on the streets of Dallas." According to appellant, he asked his attorney in December of 2008 to get the January trial date continued so that he could raise enough money to return to Texas, and his attorney assured him "that a single continuance would be no problem." Appellant contended he was surprised to learn from his attorney on the day after the trial setting, January 27, that the case had not been continued, and that a warrant had been issued for appellant's arrest.
The trial court found appellant guilty of felony failure to appear. After the State presented punishment evidence, the judge sentenced appellant to four years in prison. Discussion
The sentence was ordered to run concurrently with the sentence in 05-09-1387-CR.
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Modification of the Judgment
In his first point of error, appellant argues the judgment should be modified because it incorrectly recites the name of the "Judge Presiding." The State agrees this issue should be sustained.
The record shows that the Honorable Richard Mays presided over the trial of this case, but the judgment incorrectly states that the Honorable Mark Rusch was the "Judge Presiding." We may modify a trial court's written judgment to correct a clerical error when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.--Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to reflect that the name of the "Judge Presiding" was the Honorable Richard Mays, not the Honorable Mark Rusch.
Reasonable Excuse
In his second point of error, appellant argues that the evidence is insufficient to support the court's rejection of appellant's "reasonable excuse" defense.
A person commits the offense of failure to appear if he has been .lawfully released from custody, with or without bail, on condition that he subsequently appear. and then he .intentionally or knowingly fails to appear in accordance with the terms of his release.. Tex. Penal Code Ann. § 38.10 (West 2011). A defense to prosecution for this offense exists if .the actor had a reasonable excuse for his failure to appear in accordance with the terms of his release.. Id. § 38.10(c). An offense is a third degree felony .if the offense for which the actor's appearance was required is classified as a felony.. Id. § 38.10(f). A reasonable excuse is one that an ordinary and prudent person would rely on under the same circumstances to justify his or her failure to make a court appearance. See Gallegos v. State, 828 S.W.2d 577, 579 (Tex. App.--Houston [1st Dist.] 1992, no pet). Whether an excuse is reasonable is generally a matter for the trier of fact. See Luce v. State, 101 S.W.3d 692, 694 (Tex. App.--Texarkana 2003, no pet.). In this case, the indictment alleged that, after appellant had been lawfully released from custody for a felony offense, cause number 401- 80524-08, appeal number 05-09-01387-CR, on the condition that he subsequently appear in court, he intentionally and knowingly failed to appear in court for a docketed court setting on January 26, 2009, in accordance with the terms of his release.
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the trier of fact is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. The defendant has the burden of producing some evidence to support his defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces some evidence, the State bears the burden of persuasion to disprove the raised defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). This burden does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. at 913-14. A guilty verdict is an implicit finding rejecting the defendant's defensive theory. See Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.
In this case, appellant does not dispute he was lawfully released from custody on a surety bond, based on the condition he subsequently appear in court on that charge, or that he knowingly failed to appear in court pursuant to the terms of the release. He also does not dispute that he knew about the January 26, 2009 trial date. Appellant argues he presented sufficient evidence showing he had a "reasonable excuse" for failing to appear on January 26. But the evidence supporting the contention that appellant's excuse was reasonable consisted of appellant's testimony. The trial court, as the trier of fact and, therefore, the judge of the weight and credibility of the evidence, could choose to believe some, all, or none of the testimony presented by the parties. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The trial court, for example, could have concluded that appellant's testimony regarding Chad's statements was not credible, or that, assuming the conversations with Chad occurred as described by appellant, it was not reasonable for appellant to skip a scheduled court appearance--and appellant's knowledge of that court appearance was not in dispute--based on those statements. Viewing all of the evidence under the appropriate standard, we conclude the evidence is sufficient to support the trier of fact's rejection of appellant's defense that he had a reasonable excuse for his failure to appear. We overrule appellant's second point of error.
As modified, we affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100305F.U05