Opinion
No. 07-19-00430-CR
08-25-2020
DONALD RAY MCCRAY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court Potter County, Texas
Trial Court No. 70,652-C, Honorable Abe Lopez, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Donald Ray McCray, appellant, acting pro se, appeals from a final conviction for retaliation against a public servant, that is, he threatened to kill a Texas judge. In his brief, he complains about, among others, the change of venue, Judge Abe Lopez sitting by assignment in violation of court orders and his request for recusal, being denied the right to have a jury assess punishment, sufficiency of the evidence and statute of limitations. We affirm for the following reasons.
First, appellant tendered his initial appellant's brief to this court on January 6, 2020, prior to the filing of the clerk's and reporter's records. Both records were subsequently filed on January 7, 2020 and February 25, 2020, respectively. On May 7, 2020, we notified appellant via letter that his January 6th writing "did not comply with the briefing requirements of Rule of Appellate Procedure 38.1, as it did not state concisely the issues presented for review, provide a statement of facts supported by record references, or state a clear and concise argument with citations to the record and legal authorities. See TEX. R. APP. P. 38.1(f), (g), (i)." So too was he told to file a brief in compliance with the Rules of Appellate Procedure and that the "[f]ailure to do so will result in the submission of appellant's original, noncompliant brief to the court and may result in waiver of appellant's arguments."
On June 5, 2020, appellant tendered another appellant's brief. Though divided into points of error and statements of fact, it generally consisted of rather incomprehensible conclusions lacking comprehensible, substantive legal analysis. We find it to be deficient, as well.
Pro se litigants are obligated to comply with the aforementioned appellate rules. Shamam v. State, 280 S.W.3d 271, 275 (Tex. App.—Amarillo 2007, no pet.). If this were not so, then they would be afforded unfair advantage. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Furthermore, one of those rules requires an appellant to include within his brief appropriate citations to legal authority and substantive analysis. TEX. R. APP. P. 38.1(i). Failing to comply with that directive results in the waiver of the issue urged. Shelley v. Colorado Bd. Gov., No. 07-15-00410-CV, 2016 Tex. App. LEXIS 7688, at *1-2 (Tex. App.—Amarillo July 19, 2016, pet. denied) (mem. op.). Because appellant's brief consists of conclusions lacking comprehensible, substantive analysis, it fails to comply with Texas Rule of Appellate Procedure 38.1(i). Consequently, appellant waived the issues posited therein. See In re Rampley, No. 07-15-00426-CV, 2016 Tex. App. LEXIS 12307, at *1-5 (Tex. App.—Amarillo Nov. 16, 2016, no pet.) (per curiam) (mem. op.). Yet, straining to understanding what was said, we also say the following.
To the extent he complains about the trial judge not recusing himself, we note that a party seeking to recuse a judge must do so by filing a timely motion. The motion must be verified, aver the grounds relied on, and "must not be filed after the tenth day before the date set for trial or other hearing unless, before that day, the movant neither knew nor reasonably have known: (i) that the judge whose recusal is sought would preside at the trial or hearing; or (ii) that the ground stated in the motion existed." See TEX. R. CIV. P. 18a. Appellant, orally, requested that Judge Lopez recuse himself on the first day of trial. We found no explanation as to why he so waited. Nor did we encounter explanation as to why the motion was oral, as opposed to written. So, appellant failed to comply with Rule 18a. See Harris v. State, 160 S.W.3d 621, 624 n.3, 625 (Tex. App.—Waco 2005, pet. dism'd) (noting that "[t]he recusal procedures set out in Rule of Civil Procedure 18a apply in criminal cases," and that appellant failed to preserve his complaint because his motion was filed less than 10 days prior to trial).
As for his potential complaint about the trial court, as opposed to the jury, assessing punishment, the appellate record contains a discussion had between appellant and the trial court on the topic. During that discussion, the court advised appellant: "[y]ou have to file a motion to have the jury assess punishment . . . which, apparently you failed to do." Our review of the record did not uncover such a motion or other document encompassing appellant's election to have the jury determine punishment. This is of import since a defendant in Texas has no constitutional right to have a jury assess punishment; the right is statutory. Ex parte Pete, 517 S.W.3d 825, 827 n.1 (Tex. Crim. App. 2017). In failing to request the jury to assess punishment, he also failed to comply with the applicable statutory mandate. See TEX. CODE CRIM. PROC. ANN. § 37.07(2(b) (West Supp. 2019) (which governs punishment election and states that it shall be the responsibility of "the judge to assess the punishment applicable to the offense, provided, however that . . . the defendant so elects in writing before the commencement of voir dire . . . the punishment shall be assessed by the same jury.").
As for his possible attack implicating the sufficiency of the evidence underlying his conviction, we note that the State indicted him for intentionally or knowingly threatening to harm another, namely Janna Whatley, "by an unlawful act, to-wit: threaten to kill Janna Whatley or her family, in retaliation for or on account of the status of Janna Whatley as a public servant, to-wit: a State District Judge." See TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (West 2016) (stating that a "person commits an offense if [he or she] intentionally or knowingly harms or threatens to harm another by an unlawful act . . . in retaliation for or on account of the service or status of another as a . . . public servant . . . ."). Admitted into evidence was a letter appellant sent to the Hon. Janna K. Whatley, 343rd District Court, dated March 13, 2015 and named her as a "target." So too did he state therein 1) "your [sic] dead at your position"; 2) "[w]e know what you look like and where you live"; 3) "get the chick and the child, the dog and the hog out the house cause . . . we coming in"; 4) "the area has been scanned"; 5) "we are going to see if the Attorney General Office is going to protect you . . . the way you did them"; and 6) "as a judge your [sic] dead." Appellant not only admitted to investigating authorities that he wrote the letter but also reaffirmed that he had a grudge against Judge Whatley. This is more than some evidence satisfying the standard of review concerning the sufficiency of the evidence underlying a conviction. See Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018) (discussing that standard of review).
As for the allegation about the "statute of limitations" having lapsed, we again note that the letter was dated March 13, 2015. The State indicted appellant for the crime in June of 2015. This three-month period between threat and indictment satisfied the applicable statute of limitations. See TEX. CODE CRIM. PROC. ANN. art. 12.01(8) (West Supp. 2019) (assigning a three-year limitations period from commission of the crime to crimes not otherwise assigned another period).
As for appellant's possible complaint about venue, the record indicates that 1) appellant was imprisoned in the Clements Unit when threatening Judge Whatley; 2) the Clements Unit was and is located in Potter County; and 3) trial was had in Potter County. That satisfied applicable statutory requirements. See id. art. 13.18 (stating that "[i]f venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed").
Accordingly, we affirm the trial court's judgment.
Per Curiam Do not publish.