Opinion
No. 05-07-01623-CR
Opinion filed March 9, 2009. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court, No. 2 Dallas County, Texas, Trial Court Cause No. F06-01153-I.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT. Opinion By Justice LANG-MIERS.
MEMORANDUM OPINION
Adeniyi Mojeed Adepegba appeals from a jury verdict convicting him of tampering with a governmental record, specifically a Texas Motor Vehicle Inspection Certificate. The trial court assessed appellant's punishment at three years in prison. On appeal, appellant contends that the trial court erred by denying his motion for directed verdict and by overruling his Batson challenge. We affirm.
See Batson v. Kentucky, 476 U.S. 79 (1986).
Background
The Texas Department of Public Safety conducted an undercover investigation of appellant's motor vehicle inspection practices at his business, Metro Lube Tire, in July 2006. It sent employee Cornelius Hardy to Metro Lube on July 12, 2006 in a 1989 Chevrolet truck for the purpose of having the truck inspected. DPS knew the truck would not pass the emissions test because it had removed the "guts" from the catalytic converter. Appellant personally conducted the inspection, and the truck failed. Hardy asked appellant if he knew anyone that could help him get an inspection sticker because he needed the truck for work. Appellant suggested using a bottle of Gumout and, if that did not work, they would "go to step number three." Hardy asked what step number three consisted of, and appellant said, "We'll take care of that when you get here. It will cost you a little extra, but we'll take care of that." He told Hardy to bring the truck back at a later date after 4 p.m. Hardy returned to Metro Lube in the truck on July 27, 2006. A few minutes after Hardy arrived, appellant told him to drive the truck into the bay. A Metro Lube employee, Jerome Daniels, began performing the inspection on the truck. It failed. Hardy told appellant how badly he needed the truck for work, and appellant said, "Well, don't worry about it. We're going to do something else." Appellant left the bay, got into another vehicle, referred to as the green car at trial, and backed that vehicle in behind the truck. Appellant got out of the green car and took the emissions test probe out of the tailpipe of the truck and stuck it into the tailpipe of the green car. After talking to Daniels, appellant walked back to the green car and gave Daniels a hand signal. Appellant got inside the green car, Daniels started the truck, and they began the test. Hardy testified that when Daniels got the speed of the truck to a certain point, he honked the horn and appellant got out of the green car and he and Daniels looked at the analyzer machine. They repeated this process. After they looked at the analyzer machine the second time, appellant walked back to the green car, removed the probe, and drove the green car back to the parking lot. Daniels gave Hardy an inspection certificate and report showing the truck had passed the inspection. Hardy took the paperwork to the office where appellant told him the charge was $40. Hardy paid the $40 and left. As he was leaving, he stated the license plate of the green car into his body microphone. The incident was recorded, and the State played the videotape for the jury. Although the video was shot from across the street and the voices are not clear, Hardy described the incident as the videotape was played for the jury, pointing out when appellant inserted the probe into the green car and each time appellant entered and exited the green car. The State also introduced into evidence the reinspection report on the truck conducted on July 27 showing the truck passed the inspection. The indictment alleged that appellant, with intent to defraud and harm another, sold a governmental record, namely a motor vehicle inspection certificate, with intent that it be used unlawfully and with knowledge that it was obtained unlawfully. See Tex. Penal Code Ann. § 37.10(a)(4) (6) (Vernon Supp. 2008).Discussion
Appellant's Motion for Directed Verdict In his first issue, appellant challenges the trial court's decision to deny his motion for directed verdict. A challenge to the denial of a motion for a directed verdict is essentially a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996); Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App. 1993). We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v. State, No. PD-1276-07, 2009 WL 80226, at *2 (Tex.Crim.App. Jan. 14, 2009). We view all of the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Laster, 2009 WL 80226, at *2 (citing Jackson, 443 U.S. at 318-19). It is the jury's responsibility to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from the evidence. Threadgill v. State, 146 S.W.3d 654, 653 (Tex.Crim.App. 2004). Appellant argues that the State did not prove that Hardy left Metro Lube with an illegal inspection sticker or that appellant knew the results of any inspection taken on July 27, 2006. He also argues that the trial court erred by denying his motion for directed verdict because Hardy's testimony was uncorroborated, conflicting, and fabricated. We cannot agree. Hardy testified that the truck was used in numerous undercover operations and that DPS had removed certain parts to ensure that it would fail an emissions test. Hardy testified that the truck failed the inspection at Metro Lube on July 27, 2006, but that appellant offered a solution. He described how appellant inserted the emissions probe into the green car while Daniels operated the truck. They checked the analyzer machine and had to repeat the procedure. After the second time, appellant moved the green car and Daniels gave Hardy an inspection report reflecting that the truck "passed." Hardy took the report to the office where appellant told him the cost was $40. Hardy paid the bill and left. The inspection certificate number on the inspection report matched the inspection certificate introduced into evidence. Even though the audio and video recordings are difficult to understand and see, Hardy's testimony did not need to be corroborated because he was not an accomplice witness. See Druery v. State, 225 S.W.3d 491, 500 (Tex.Crim.App. 2007). And it was up to the jury to resolve any conflicts in the evidence. See Threadgill, 146 S.W.3d at 663. We conclude that the trial court did not err by denying appellant's motion for directed verdict. We resolve appellant's first issue against him. Appellant's Batson Challenge In his second issue, appellant argues that the trial court erred in overruling his Batson challenge in response to the State's peremptory strike of prospective juror number ten. The State argues that appellant has not adequately briefed this issue for appellate review, or, alternatively, that appellant has not met his burden on appeal. Appellant does not cite the record to support his contention that the trial court clearly erred in overruling his Batson challenge to prospective juror number ten. Instead, he appears to contend that we should automatically reverse his conviction because the voir dire record is incomplete:The record did not provide a record of the jury members or detail the process that lead [sic] to their selection. Required information regarding the jury members is missing from the record. This lack of information caused an inability to fully evaluate the voir dire process.Appellant does not explain what "[r]equired information" he contends is missing from the record, nor does he cite any authority to support his apparent contention that he is entitled to a new trial because it is missing. The rules of appellate procedure require citation to appropriate authority to support contentions made on appeal. Tex. R. App. P. 38.1(h). We conclude that appellant has not adequately briefed this issue for appellate review. Moreover, even if we assume that by "[r]equired information" appellant means the juror information cards and questionnaires, that assumption would not allow us to conclude that appellant is entitled to a new trial. An appellant is entitled to a new trial only if "the lost or destroyed exhibit, is necessary to the appeal's resolution." Tex. R. App. P. 34.6(f)(3). In this case, the jury questionnaires and information cards are not part of the record, and appellant states only that the required information regarding the jurors is "missing." He does not state that the information was made a part of the trial court record, nor does he argue that the information was "lost or destroyed" "without [his] fault." Tex. R. App. P. 34.6(f)(2)-(3). Consequently, we must presume the missing record supports the trial court's judgment. See Gaitan v. State, 905 S.W.2d 703, 706 (Tex.App.-Houston [14th Dist. 1995, pet. ref'd). We resolve appellant's second issue against him.