Summary
holding that the State was not required to allege in its petition to revoke that the defendant committed a recent offense to allow the trial court to consider that offense for sentencing purposes
Summary of this case from Howardjohnson v. StateOpinion
No. 05-11-00426-CR
07-24-2012
WILLIE JAMES MORELAND, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed July 24, 2012.
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F04-21401-L
OPINION
Before Justices O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
Appellant Willie James Moreland appeals the trial court's judgment revoking community supervision and sentencing him to five years' imprisonment. In one issue, appellant contends the trial court abused its discretion by permitting evidence of an extraneous DWI offense to be used during the punishment phase of his trial. We affirm the trial court's judgment.
BACKGROUND
On June 30, 2004, appellant was indicted for the offense of driving and operating a motor vehicle in a public place while intoxicated (DWI) after being convicted of DWI on two previous occasions. Appellant waived a jury trial and pleaded guilty. The trial court accepted appellant's plea and set punishment at ten years' imprisonment. Pursuant to a plea agreement, the trial court placed appellant on community supervision for seven years, imposed a fine of $2,000, and ordered appellant to serve ten days in the Dallas County jail. On May 21, 2009, the State filed a motion to revoke appellant's community supervision. The motion alleged appellant had violated seven conditions of his probation by, among other things, committing the offense of DWI on April 10, 2009. On August 20, 2010, the State withdrew this motion.
On January 7, 2011, the State filed a second motion to revoke appellant's community supervision, alleging appellant had violated four conditions of his probation. The violations alleged included appellant's failure to pay restitution, fines, and fees (technical violations), and appellant's failure to pass a breath-alcohol-content test. At the hearing on the State's motion, appellant pleaded true to the three technical violations and the State waived the breath-alcohol-content test violation. The trial court ruled that appellant had violated three conditions of his community supervision and revoked his probation. The State then called witnesses on the issue of punishment.
The State called three witnesses who testified regarding appellant's traffic stop and arrest for DWI in Angelina County, Texas, on April 10, 2009 (the extraneous DWI offense). These witnesses included Sabrina Guererro, dispatcher for the City of Lufkin Police Department, Jeff Taylor, a sergeant with the Texas Narcotic Beverage Commission, and Keith Hearnd, a senior corporal with the Texas Department of Public Safety. The State then called Mary Jefferson, the victim of the January 1, 2004, automobile collision that led to appellant's indictment for DWI on June 30, 2004. The State also called Okande Okpa, a Dallas County Probation Department employee, who testified that appellant would not admit he has a problem with alcohol, even though he has had several DWIs in the past. Mr. Okpa stated that appellant continued using alcohol in violation of his probation and was a difficult probationer who became belligerent when asked to comply with the conditions of his probation.
At the conclusion of the evidence presented during the sentencing phase of the hearing, the trial court assessed punishment at five years' imprisonment. This appeal followed. ADMISSION OF EXTRANEOUS DWI EVIDENCE
In his sole issue, appellant asserts the trial court abused its discretion by admitting into evidence, over appellant's objection, testimony and other evidence of the extraneous DWI offense. We review a trial court's decision to admit or exclude evidence of extraneous offenses under the abuse of discretion standard of review. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). As long as the trial court's ruling is within the “zone of reasonable disagreement,” there is no abuse of discretion and the trial court's ruling will be upheld. Devoe, 354 S.W.3d 469. Pursuant to article 37.07 of the Texas Code of Criminal Procedure:
[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including . . . 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). The State's duty to give advance notice of its intent to introduce such evidence is triggered by the defendant's timely request. Id. § 3(g).
Although appellant's argument is not entirely clear, he appears to have three complaints: (1) the State's failure to list the extraneous DWI offense as a violation of the conditions of community supervision in the State's January 2011 motion to revoke; (2) the State's withdrawal of its original motion to revoke that alleged the extraneous DWI offense; and (3) the absence of the police car video recording of appellant's April 2009 DWI arrest. Appellant argues the State failed to provide notice to appellant of the State's intent to introduce evidence of the extraneous DWI offense during the punishment phase by not listing the extraneous offense as a violation of the conditions of community supervision in its January 2011 motion to revoke. Appellant contends the trial court erred in allowing the extraneous DWI evidence due to this failure to provide notice, coupled with the withdrawal of the State's original motion to revoke, and the absence of the police car video of the April 2009 DWI.
According to the record, the State did not seek to revoke appellant's probation on the ground that he committed a recent DWI. The State is not required to allege the DWI within its motion to revoke in order to allow the trial court to consider it for sentencing purposes. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Appellant fails to provide a clear and concise argument with appropriate citation to authorities to support his argument that the State was required to provide notice of intent to introduce evidence of the extraneous DWI offense and failed to do so. See Tex. R. App. P. 38.1(i). Notably, appellant does not contend that he made a timely request that the State provide notice. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g). Nor does appellant provide a clear and concise argument with appropriate citation to authorities to support his argument that the State was required to provide notice notwithstanding appellant's failure to make a timely request for such notice. See Tex. R. App. P. 38.1(i); see also Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g). The record does not contain any indication that appellant requested notice of the State's intent to offer extraneous evidence of the April 2009 DWI offense at the punishment phase of the hearing. Therefore, the State's duty to give advance notice of its intent to introduce such extraneous DWI evidence was not triggered and no notice was required. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g); see Webber v. State, 21 S.W.3d 726, 731 (Tex. App.-Austin 2000, pet. ref'd).
Citing Ex parte Byrd, 752 S.W.2d 559, 563 (Tex. Crim. App. 1988), appellant acknowledges that the State's withdrawal of its original motion to revoke does not implicate the doctrine of collateral estoppel with respect to the extraneous DWI evidence. Appellant provides no further discussion, analysis, or appropriate citation to authorities to support his contention that the State should not have been allowed to introduce the extraneous DWI evidence because it had withdrawn its original motion to revoke that included the April 2009 DWI arrest as a violation of appellant's community supervision. See Tex. R. App. P. 38.1(i).
With respect to the missing police car video of appellant's April 2009 DWI arrest, appellant cites the case of Yates v. State, 1 S.W.3d 277 (Tex. App.-Fort Worth 1999, pet. ref'd), in support of his contention that the State should not have been allowed to introduce the extraneous DWI evidence once it became apparent that the police car video recording of appellant's April 2009 DWI arrest was not available. However, appellant acknowledges that the Yates court determined that under the specific facts in that case, reversal was not required even though a videotape of the appellant taken following his arrest and introduced into evidence during trial was lost following the trial. See Yates, 1 S.W.3d at 280. Appellant cites no authority to support his position that in this case the absence of the police car video of his DWI arrest requires reversal. Instead, appellant specifically acknowledges that the missing police car video is not, per se, sufficient grounds for reversal. We also note that during the hearing on the State's motion to revoke, appellant failed to make a specific objection to the extraneous DWI evidence based on absence of the police car video. Thus, appellant failed to preserve error for appellate review with respect to the missing video. See In re Estate of Miller, 243 S.W.3d 831, 837 (Tex. App.-Dallas 2008, no pet.); see also Tex. R. App. P. 33.1(a)(1).
CONCLUSION
Based on the analysis above, we conclude the trial court did not abuse its discretion in permitting evidence of the extraneous DWI offense to be introduced during sentencing.
See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1), (g). We affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110426F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WILLIE JAMES MORELAND, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00426-CR
Appeal from the Criminal District Court No. 5 of Dallas County, Texas. (Tr.Ct.No. F-04- 21401-L).
Opinion delivered by Justice Richter, Justices O'Neill and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 24, 2012.
MARTIN RICHTER
JUSTICE