Opinion
No. 05-10-01059-CR
03-01-2012
CHADWICK DALE COLLINS, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed March 1, 2012.
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F08-61130-I
OPINION
Before Justices Lang, Murphy, and Myers
Opinion By Justice Myers
Appellant, Chadwick Dale Collins, was convicted of aggravated robbery and sentenced to fifty years in prison. In three issues, he argues the trial court abused its discretion by refusing his request for a continuance, erred by admitting extraneous offense evidence at punishment, and the evidence is legally insufficient to support the allegations in the State's notice of intent to enhance punishment. We affirm.
Discussion
Continuance
In his first issue, appellant argues the trial court erred by denying his request for a continuance "by retained trial counsel of appellant's own choice[,] to prepare for trial." Prior to voir dire, appellant's appointed trial counsel, Paul Johnson, told the trial court that appellant had retained new counsel and the newly retained attorney was en route to the court. After the court took a brief recess, the record reads in part as follows:
MR. ORESUSI: My name is Tola Oresusi, last name O-R-E-S-U-S-I, Tola, and Adio Olajide with the Law Offices of Haughton. That's H-A-U-G-H-T-O-N.
We attempt to enter an appearance and seek maybe 90 days' delay on this trial with respect to Mr. Collins, Chadwick D. Collins this morning--we were just retained less than a week ago. And we knew it was set for trial. We try and attempt to seek a delay so that justice can be served, Your Honor.
THE COURT: The case is set for trial today. We have a jury out in the hallway. Mr. Johnson has been appointed on this case. If you want to represent this man, you're more than free to do so. And, Mr. Johnson--he'll sit here and help you, but--if you don't want to represent him, then that's fine.
MR. JOHNSON: Okay, Your Honor. We are not going to be able to represent him. Thank you, Your Honor.
THE COURT: That will conclude the hearing.
The reporter's record states that this statement was made by Johnson, but both appellant and the State agree that the context of the statement indicates that it was made by Oresusi, not Johnson.
Article 29.03 of the Texas Code of Criminal Procedure provides in relevant part "[a] criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (West 2006). Furthermore, article 29.08 provides that "[a]ll motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance." Tex. Code Crim. Proc. Ann. art. 29.08 (West 2006). The Texas Court of Criminal Appeals has concluded that oral motions for continuance preserve nothing for appellate review. See, e.g., Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App. 1999); Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995). Appellant does not dispute that his motion for continuance was not in writing and was not sworn to as required by the rules of criminal procedure. See Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08. But he suggests the oral motion for continuance was sufficient because it implicated the constitutional right to counsel. The court of criminal appeals has concluded that "[w]hen rules of procedural default come into play, courts must identify the type of rule involved and then determine whether it is subject to forfeiture." Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009). In the context of the denial of a motion for continuance, when the right at issue is forfeitable, the defendant must comply with the procedural requirements of articles 29.03 and 29.08 in order to preserve error for appellate review. See id. at 280. The right of a defendant for whom counsel has been appointed to retain a different attorney of his choosing is one that may be forfeited if not asserted. See McGee v. State, 124 S.W.3d 253, 257 (Tex. App.--Fort Worth 2003, pet. ref'd) ("While the right to counsel is a 'waivable only' right, the right to specific counsel is not."); see also King v. State, No. 05-09-00164- CR, 2010 WL 1268176, at *10 (Tex. App.--Dallas April 5, 2010, no pet.) (not designated for publication). Therefore, since appellant's motion for continuance was neither sworn nor in writing, he failed to preserve error. See Anderson, 301 S.W.3d at 280-81; Dewberry, 4 S.W.3d at 756; Shavers v. State, 881 S.W.2d 67, 75 (Tex. App.--Dallas 1994, no pet.); see also Ricketts v. State, 89 S.W.3d 312, 317 (Tex. App.--Fort Worth 2002, pet. ref'd) ("language in Dewberry does not permit equitable review of an oral motion for continuance"). We overrule appellant's issue.
Extraneous Offense
In his second issue, appellant argues the trial court erred by admitting extraneous offense evidence at punishment because the State failed to give appellant timely written notice of the extraneous offense.
The State's notice of intent to enhance punishment, filed on July 7, 2010, alleged as follows:
[P]rior to the commission of the aforesaid offense by same said Defendant, Defendant under the name Chadwick Collins, was convicted of Distribution of a controlled substance to wit: Cocaine under Louisiana Statute section 40:967 on January 18, 1995 in Baton Rouge, Natchitoches Parish, Louisiana under State ID# LA164608. Defendant was found guilty and sentenced to 5 years in the department of corrections.The State's notice certified that it was faxed to appellant's trial counsel on July 6, 2010. At a July 19, 2010 hearing on appellant's omnibus pretrial motion, appellant reminded the court of paragraph six of his motion, which requested "notice of any extraneous transactions the State has previously entered." One day later, after appellant was arraigned on the allegations in the State's notice of intent to enhance punishment, appellant objected to the Louisiana pen packet that the State intended to offer because it showed two separate drug convictions, but appellant was provided notice of only one prior conviction. Appellant's trial counsel asked, "I think we were only given notice of one prior conviction out of Louisiana. Is that correct?" The prosecutor replied, "Yes." A few moments later, the court ruled that it would admit State's exhibit number twenty-three, the Louisiana pen packet containing the prior convictions. The relevant portion of the record reads as follows:
THE COURT: The Court will go ahead and let it [the Louisiana pen packet] in with the exception of what happened in the penitentiary.
[DEFENSE COUNSEL]: Well, Judge, what about the allegations of the separate conviction that we've been given no notice of?
THE COURT: Does the State have any response to that?
[PROSECUTOR] MS. GRANADO: What's--what are you--can you show me where you're talking about?
THE COURT: There are two cases.
[DEFENSE COUNSEL]: There are two cases in there. We were only given notice of one.
[PROSECUTOR] MS. GRANADO: Judge, I mean, my only response would be that I never received notice or request for notice of extraneous until Friday of last week, Friday afternoon.
[PROSECUTOR] MS. JONES: Which is prior to when Ms. Granado filed her notice of extraneous offenses.
[DEFENSE COUNSEL]: No. She's filed that a while back.
[PROSECUTOR] MS. JONES: Correct. I'm sorry. I meant prior to the request for notice, Ms. Granado had filed her notice, and the formal request came-
THE COURT: The Court will go ahead and admit it then.
Only the first page of appellant's omnibus pretrial motion, which contains the beginning but not the entirety of his request for notice of extraneous transactions, is included in the Clerk's record.
Article 37.07, 3(a)(1) of the code of criminal procedure provides that a trial court may admit any matter it deems relevant to sentencing, including the prior criminal record of the defendant:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West. Supp. 2011). Article 37.07, 3(g) requires State to give notice of extraneous offenses it intends to introduce during the punishment phase in the same manner as rule of evidence 404(b):
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.Id. art. 37.07, § 3(g) (emphasis added).
Rule 404(b) provides in relevant part that other-crimes evidence may be admissible for limited, non-character conformity purposes provided that the prosecution gives the accused reasonable notice in advance of trial of its intent to use this evidence during its case-in-chief. Tex. R. Evid. 404(b).
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Section 3(g)'s notice provision is mandatory, but failure to comply does not automatically constitute grounds for reversal. See Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002); Luna v. State, 301 S.W.3d 322, 326 (Tex. App.--Waco 2009, no pet.). The erroneous admission of extraneous offense evidence in violation of section 3(g) is nonconstitutional error; therefore, we analyze it to determine whether the error affected a substantial right of the defendant. Tex. R. App. P. 44.2(b); James v. State, 47 S.W.3d 710, 714 (Tex. App.--Texarkana 2001, no pet.); Luna, 301 S.W.3d at 326; see also Gray v. State, 159 S.W.3d 95, 97-98 (Tex. Crim. App. 2005) (erroneous admission or exclusion of evidence is nonconstitutional error). Under rule 44.2, nonconstitutional error that does not affect the substantial rights of the defendant must be disregarded by the appellate court. See Tex. R. App. P. 44.2. A substantial right is affected when the error has a "substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the error had no or only a slight influence on the verdict, the error was harmless. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
We evaluate the effect of error in admitting extraneous offense evidence without adequate notice in light of the purpose of section 3(g), which is to prevent unfair surprise to the defendant and to enable him to prepare to answer the extraneous offense evidence. Luna, 301 S.W.3d at 326; Roethel v. State, 80 S.W.3d 276, 281.82 (Tex. App.--Austin 2002, no pet.); see also Burling v. State, 83 S.W.3d 199, 202-03 (Tex. App.--Fort Worth 2002, pet. ref'd). .This analysis requires examining the record to determine whether the deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing for trial.. Luna, 301 S.W.3d at 326 (citing Roethel, 80 S.W.3d at 282). .In determining the latter, appellate courts look at whether the defendant was surprised by the substance of the testimony and whether that affected his ability to prepare cross-examination or mitigating evidence.. Id. (citing Roethel, 80 S.W.3d at 282).
Assuming the State's notice failed to substantially comply with the notice requirements and that the trial court erred in admitting the challenged evidence, the error, if any, was harmless. Appellant does not argue that the State's alleged failure to comply with the notice requirements was the result of prosecutorial bad faith, nor does the record show that the lack of notice surprised appellant or affected his ability to prepare a defense. He did not move for a continuance based on notice, inform the court he was unprepared to address the evidence, or otherwise indicate he could not conduct an adequate defense.
The State did not emphasize the prior Louisiana conviction during the punishment phase. During its examination of Deputy Richard Hamb of the Dallas County Sheriff's Department, who compared the fingerprints he took of appellant with the fingerprints in the Louisiana pen packet, the prosecutor noted the extraneous Louisiana conviction:
Q. [PROSECUTOR:] Okay. And just so we're clear, Deputy Hamb, this penitentiary packet deals with, like you testified earlier, the same--one and the same Chadwick Collins; is that correct?In addition, the prosecutor referred to the Louisiana conviction when cross-examining appellant's sister, later in the punishment phase:
A. [HAMB:] That's correct.
Q. And in this penitentiary packet, he was actually sent to the penitentiary for two different offenses; is that correct?
A. Yes.
Q. [PROSECUTOR:] Okay. Back in 1993, were you guys in Louisiana?
A. [SHAMEKA COLLINS:] '93? Yes.
Q. Okay. And would that have been--what city?
A. Natchitoches, Louisiana.
Q. Okay. And so you--back then, I know you were young, but you knew that your brother was getting back--getting in trouble back then?
A. Not really.
Q. Well, he picked up a drug charge. You know that, right?
A. Yeah.
Q. And then he was put on probation?
A. Uh-huh.
Q. And then he revoked it by picking up another drug charge?
A. I suppose. I mean, me being the youngster, I was doing other things, going fishing. So they sort of kept me out of their business, whatever they may have done, you know.
Most of the State's punishment evidence, however, was devoted to three unadjudicated aggravated robberies as well as a charge of unauthorized use of a motor vehicle concerning a pickup truck that was stolen and used in the commission of the aggravated robberies. In each of the unadjudicated aggravated robberies, the victims were robbed after withdrawing large amounts of money from a bank. The three victims--Eun Park, Leticia Vasquez, and Ghizala Khan--testified and told the jury they were traumatized by the events.
The robberies involving Park and Vasquez occurred in late August and early September of 2008, shortly before appellant's arrest in the instant case. The offenses were similar to the facts of the instant case. In both instances, the victims had just withdrawn large amounts of money from a bank located on Harry Hines Boulevard, when their cars were struck from behind by a vehicle occupied by appellant. Vasquez testified that appellant broke the passenger's side window of her Lincoln Navigator, pointed a gun at her, and said, "[G]ive me the money, bitch." Fearing for her life, Vasquez gave appellant her purse, which held approximately $140,000 intended for a check cashing business owned by Vasquez and her husband. Appellant fled in a pickup truck that another person was driving.
The punishment evidence also showed that, when Park was robbed, appellant pushed her to the ground as she struggled with him for control of her purse, which contained approximately $7,500. Park stood in front of appellant's vehicle in an attempt to prevent him from escaping, but she was struck and knocked to the ground when he drove away. An eyewitness recalled seeing two people in appellant's vehicle, a pickup truck. He followed the truck long enough to get its license plate number.
Khan was robbed in October of 2008, shortly after appellant had been arrested for the instant offense and released on bond. According to the testimony of Khan and her husband, they withdrew approximately $100,000 from a bank, then drove back to the Garland food store they owned and operated. Khan was carrying the money in her purse. They parked in front of the store and Khan's husband got out of the car. As Khan got out of the passenger side, a tall Black male walked up to her and grabbed her purse. Khan and her husband struggled with this individual, but he took the purse from them and fled in a pickup truck. Khan remembered that there were two people in the truck. Khan and her husband suffered minor injuries: she recalled that her thumb nails were broken and bleeding and her husband's neck was cut.
Other punishment evidence indicated that, after he was arrested, appellant was interviewed by the Garland police. Detective I.C. Hale of the Garland Police Department testified that appellant did not confess during their two-hour interview, which was recorded. But appellant told the officer he had been taught not to steal from blacks, whites, or Hispanics, and that he "was sick and tired of the U.S. Government giving foreigners money and aide to come over here and work."
In her closing argument at the end of the punishment phase, the prosecutor mentioned that appellant had two prior Louisiana drug offenses:
Mr. Collins started his criminal rampage when he was 17 years old by selling drugs. In 1993, he picks up a drug case in Louisiana and gives him a chance and put him on probation. And what does he do? He picks up another drug case. He keeps selling drugs.
And so what do they do? They sent him to prison for five years. And when he gets out and gets another chance, what does he decide to do? He moves to Dallas to our county where he decides in 2004, not long after he had gotten out, to steal a car. And when they were trying to catch him, he evaded the police and tried to get away.
But most of the State's argument focused on the aggravated robberies and their impact on the victims, not the Louisiana drug offenses. We also note that the sentence imposed by the jury was lower than the State requested. Appellant's counsel urged the jury to assess a sentence of fifteen or twenty years. He argued that such a sentence would be like "a lifetime" to appellant, and that "we're not talking about cases in which people were brutalized and murdered, raped." The State asked for a life sentence. The jury assessed a fifty-year prison sentence. See Brooks v. State, 76 S.W.3d 426, 436 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (State's failure to give notice did not have substantial and injurious effect where appellant was sentenced to 40 years, State requested sixty years, and maximum sentence was life in prison).
After carefully reviewing the record, we conclude that the trial court's error, if any, did not have a substantial and injurious effect or influence in determining the jury's verdict. We overrule appellant's second issue.
Notice of Intent to Enhance Punishment
In his third issue, appellant argues the evidence is legally insufficient to support the allegations in the State's notice of intent to enhance punishment. In conducting such a sufficiency analysis, we review the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the enhancement paragraph true beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Roy v. State, 813 S.W.2d 532, 543 (Tex. App.--Dallas 1991, pet. ref'd). We must defer to the fact finder's credibility and weight determinations. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
"To establish that a defendant was convicted of an enhancement offense, the State must (1) prove the existence of the conviction and (2) link the conviction to the defendant." Davis v. State, 268 S.W.3d 683, 715 (Tex. App.--Fort Worth 2008, pet. ref'd); see also Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). "No specific document or mode of proof is required to prove these two elements" so long as they are proved beyond a reasonable doubt. Flowers, 220 S.W.3d at 921. The State may prove that the defendant is the same person named in the alleged prior conviction in various ways, including (1) the defendant's admission or stipulation, (2) testimony by a person who was present when the person was convicted of the specified crime and can identify the defendant as that person, or (3) documentary proof (such as a judgment) that contains sufficient information to establish both the existence of a prior conviction and the defendant's identity as the person convicted. Id. at 921-22.
The State may prove the existence of a prior conviction with a certified judgment and sentence or any document that is the functional equivalent of the judgment and sentence. See Martin v. State, 227 S.W.3d 335, 337 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (citing Langston v. State, 776 S.W.2d 586, 588 (Tex. Crim. App. 1989)); see also Flowers, 220 S.W.3d 925. The State must then link the prior conviction to the defendant with independent evidence, such as expert testimony identifying the fingerprints from the documentary evidence of the prior conviction with the known fingerprints of the defendant. See Banks v. State, 158 S.W.3d 649, 652 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd); Fontenot v. State, 704 S.W.2d 126, 127 (Tex. App.-- Houston [1st Dist.] 1986 no pet.).
At the beginning of the punishment phase of trial, the State introduced a certified Louisiana pen packet. This packet includes documentation regarding several convictions and is accompanied by an affidavit from the custodian of records of the Office of Probation and Parole at the Louisiana Department of Public Safety and Corrections, authenticating the documents regarding "Chadwick Collins" and referencing the document number for the conviction records, which is 349826. Included in the pen packet is a "Certificate of Release Completion of Sentence" that references document 349826 and certifies that "Chadwick Collins" completed the "hard labor custody requirements" for case number 0938035 from parish "NAT." The certificate includes personal information such as race and sex ("B/M"), and date of birth (January 8, 1976). Also included in the packet is a "Bill of Information" for case number 093-8035 alleging that "Chadwick D. Collins" committed the crime of "distribution of schedule II drugs being crack cocaine," in the Parish of Natchitoches, Tenth Judicial District Court, on August 5, 1993. A January 18, 1995 letter from the District Attorney's Office of Natchitoches Parish to the Louisiana Department of Corrections regarding "State of Louisiana vs Chadwick D. Collins, #93-8035A Distribution of Schedule II drugs DOB: 01/08/76," states that "On January 18, 1995, Mr. Collins . . . entered a plea of guilty as charged . . . . He was sentenced by Judge John B. Whittaker to five (5) year Imprisonment [sic] with the Louisiana State Department of Corrections."
The pen packet includes a fingerprint card displaying the name "Chadwick D. Collins" along with identifying information such as date of birth ("01/08/1976"), the State identification number ("001646080"), height ("5' 09""), weight ("168"), sex ("M"), race ("B"), eye and hair color, and social security number. The packet also includes a "Suspect Rap Sheet" for "Collins, Chadwick," together with a photograph and other identifying information, including date of birth ("01/08/1976"), the State identification number ("001646080"), social security number, and other identifying information. Deputy Hamb testified that he compared the fingerprints he took of appellant earlier that day with the fingerprints in the Louisiana packet, and concluded the fingerprints in the Louisiana pen packet belonged to appellant.
Appellant argues the evidence is insufficient to link him to the January 18, 1995 Louisiana conviction because the State's notice of intent to enhance punishment does not contain a cause number for the Louisiana conviction, and because the fingerprints in the pen packet are not specifically tied to any of the several convictions contained within it. But as noted earlier, there is no specific document or mode of proof required to establish the link between a defendant and a prior conviction. See Flowers, 220 S.W.3d at 921. In general, "the proof that is adduced to establish that the defendant on trial is one and the same person that is named in an alleged prior criminal conviction or convictions closely resembles a jigsaw puzzle." Id. at 923 (quoting Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988)). "The pieces standing alone usually have little meaning." Id. "However, when the pieces are fitted together, they usually form the picture of the person who committed that alleged prior conviction or convictions." Id.
In this case, the State proved the existence of the prior conviction and linked it to the information set forth in the notice of intent to enhance punishment. Although there is no cause number in the State's notice of enhancement, it alleges other identifying information such as the offense, date of conviction, parish, identification number, and sentence. The various documents in the Louisiana pen packet reference each other and show that "Chadwick Collins" was convicted of distribution of cocaine in case number 93-8035 on January 18, 1995, and that the fingerprints included in the pen packet belong to "Chadwick Collins." Hamb's testimony indicates that appellant is the same "Chadwick Collins," State identification number 001646080, who was convicted in Natchitoches Parish, Louisiana, of distribution of cocaine on January 18, 1995.
Viewing the evidence in the light most favorable to the trier of fact's findings, we believe a rational trier of fact could have found the enhancement allegation true beyond a reasonable doubt. Accordingly, the evidence is sufficient to support the enhancement allegation. See Andrus v. State, No. 05-08-00703-CR, 2010 WL 797196, at *7 (Tex. App.-Dallas March 10, 2010, no pet) (not designated for publication) (information in Louisiana penitentiary packet legally sufficient to link defendant with convictions). We overrule appellant's third issue.
We affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101059F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CHADWICK DALE COLLINS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01059-CR
Appeal from the Criminal District Court No. 2 of Dallas County, Texas. (Tr.Ct.No. F08- 61130-I).
Opinion delivered by Justice Myers, Justices Lang and Murphy participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 1, 2012.
LANA MYERS
JUSTICE