Andika v. State

Full title: ERIC ANDIKA, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Jun 22, 2005

No. 10-04-00278-CR (Tex. App. Jun. 22, 2005)

Opinion

No. 10-04-00278-CR

Opinion delivered and filed June 22, 2005. DO NOT PUBLISH.

Appeal from the 13th District Court, Navarro County, Texas, Trial Court No. 29,543. Affirmed.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

MEMORANDUM OPINION

BILL VANCE, Justice.

Appellant, Eric Andika, was indicted for the third-degree-felony offense of escape enhanced by two prior convictions. Andika was found guilty by a jury. The court found the punishment-enhancement paragraphs to be true and sentenced Andika to 45 years in prison. Andika appeals in eight issues: (1) denial of due process when the trial judge required him to be restrained by handcuffs during the trial; (2) harm when a witness violated his Motion in Limine; (3) error in refusing to allow the jury to view the crime scene; (4) harm by the prosecutor's improper closing argument that video tape was available upon defense filing a proper motion/subpoena; (5) harm by the prosecutor's improper closing argument injecting his personal feelings into the case; (6) legal sufficiency of enhancement paragraph for federal conviction; (7) denial of due process by use of federal conviction to enhance charge; and (8) allowing an unqualified witness to testify as a fingerprint expert. We will affirm the judgment.

BACKGROUND

Andika was arrested for the offense of escape by Detective Mark Nanny. Detective Nanny transported Andika to the Navarro County Justice Center, and Andika was booked. Detective Nanny prepared an original felony complaint against Andika, which was later filed with the District Clerk of Navarro County. Four days after his arrest, two jailers released Andika from the Justice Center. The jailers testified that they thought they were releasing Tony Harvey. Harvey was being held at the Justice Center on fines only, and Harvey's alleged cousin, Gloria Ward, came to the Justice Center to pay off his fines allowing Harvey's release. Andika was mistakenly released instead of Harvey,¹ and Ward gave Andika a ride to Arlington. After the Justice Center realized it released Andika instead of Harvey, a warrant was issued for Andika's arrest for escape. Months later, Andika was re-arrested and returned to the Justice Center. A jury found Andika guilty of escape. The court found two enhancement paragraphs to be true and sentenced Andika to 45 years in prison. Andika appeals his conviction and sentence.

ISSUE ONE: RESTRAINTS DURING TRIAL

Andika argues that the trial judge abused his discretion in ordering him to be restrained during trial. He argues this was a denial of due process and allowed the jury to infer his guilt and deny him the presumption of innocence. The State argues that, in chambers, Andika's own attorney requested that Andika be restrained due to his behavior during the weeks leading up to trial. It argues there was a manifest need for the restraints and the trial judge made a clear record regarding this issue. The harm a defendant suffers when the jury sees him in handcuffs or shackles is that his constitutional presumption of innocence is infringed, and all efforts should be maintained to prevent the jury from seeing the defendant in shackles, except where there has been a showing of exceptional circumstances or a manifest need for such restraint. Long v. State, 823 S.W.2d 259, 282 (Tex.Crim.App. 1991). It is within the discretion of the trial judge as to whether a defendant shall be tried in handcuffs or shackles. Id. On appeal, the appellate court determines whether the trial court abused its discretion by requiring the defendant to appear in restraints. Id. To assist the appellate court in this determination, the record must clearly and affirmatively reflect the trial judge's reasons therefor.² Id. The State made an offer of proof, and Andika's counsel agreed, that the State could provide testimony that Andika had been in possession of potential weapons and implements of escape during his pre-trial confinement. The State made a motion to have Andika wear handcuffs and a leg brace during the trial. Andika's counsel objected to the motion because it might prejudice the rights of Andika before the jury. The trial judge ordered that Andika's hands be kept cuffed in front of him and stated:

Now, I'm going to need help from bailiffs and deputy bailiffs and security personnel which assist me in keeping that particular fact as unobtrusive as possible. What I would suggest is that the defendant be brought in to the courtroom early, that he be seated during the voir dire proceedings on my side of the counsel table, so that the counsel table would be available to block at least some view of handcuffs. And we'll do our best to avoid any overt display of restraints in the courtroom. But, nonetheless, my ruling will be that he remain handcuffed. And law enforcement may need to coordinate on how to get that done as unobtrusively as possible.

The trial judge then went back on the record out of the presence of counsel and the defendant:

THE COURT: We're back on the record in the case styled State vs Andika. I am dictating this statement to the court reporter without the presence of counsel or the defendant and it affects a matter taken up in chambers by both counsel with me before the pre-trial hearing this morning.

Mr. Fulbright indicated that he believed his client was unpredictable and he could not rely on his client to avoid confrontational behavior in the courtroom even as against Mr. Fulbright, his own attorney. And I elected not to bring that matter up in the courtroom while counsel, and at the time defendant were present, because I thought it might additionally chill the relationship between Mr. Fulbright and his client at a time when best representation is needed in the trial of the case. I do want the record to reflect that the conversation I had with counsel in chambers had an impact on my decision to leave Mr. Andika handcuffed during the trial of the case. That will conclude this time. After voir dire examination, the trial judge issued a memorandum order:

On this date the Court conducted a pre-trial hearing in the above-entitled and numbered case. One issue raised was that of courtroom security. The State's attorney made an offer of proof that the defendant had engaged in making weapons and implements of escape during his confinement. The State further requested that Mr. Andika be restrained by handcuffs during trial proceedings. Additionally, during a conference in chambers just prior to the pre-trial hearing, defense counsel, Paul Fulbright, advised the Court and opposing counsel that his client was intelligent, manipulative, and unpredictable; that he could not assure the Court that his client would not refrain from confrontation or even violent behavior; and that he (Mr. Fulbright) felt some personal risk from the defendant.

The Court finds that the preservation of security and the safety of those in the courtroom require that the defendant remain handcuffed, as unobtrusively as possible. The same was so ordered in open court and security personnel directed to assist the court in avoiding displays of the defendant in restraints. During voir dire proceedings, it appeared to the Court that the defendant made a conscious decision to display his handcuffs, although he first kept these restraints under the counsel table and effectively concealed the same from view. The Court believes that any prejudice to the defendant is offset by security concerns in this case. We find that the trial judge did not abuse his discretion in ordering Andika to wear handcuffs during the trial. Specific findings were made on the record to justify the use of handcuffs and to ensure that the handcuffs would be unobtrusive. See Long, 823 S.W.2d at 282-83. We overrule issue one.

ISSUE TWO: MOTION IN LIMINE

Andika's motion in limine to prevent the State from eliciting evidence from Andika's underlying forgery charge was granted. Andika argues that he was harmed when Detective Nanny violated the motion in limine by testifying that he was assigned to the fraud division of the Corsicana Police Department. Andika's counsel did not object. To preserve error for appellate review, a timely and specific objection must be made and a ruling obtained. TEX. R. APP. P. 33.1(a)(1)(A). The granting of a motion in limine will not preserve a complaint of error. Wilkerson v. State, 881 S.W.2d 321, 326 (Tex.Crim.App.), cert. denied, 513 U.S. 1060, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994). Therefore, it is necessary that an objection be made when the subject is raised during trial. Id. (citing Gonzales v. State, 685 S.W.2d 47, 50 (Tex.Crim.App.), cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985)). Thus, we find that Andika did not preserve this issue for appeal. We overrule issue two.

ISSUE THREE: JURY VIEW OF CRIME SCENE

Andika argues that the trial judge abused his discretion in refusing to allow the jury to view the crime scene. He argues that the availability of recordings was central to his defense of a cover-up by jailers, and would disprove the element of his unauthorized absence from jail. The State argues that the trial judge did not abuse his discretion in denying the jury to look at cameras at the crime scene because there is no dispute as to whether cameras existed at the crime scene. The question of whether to grant or deny a request for a jury view rests within the trial court's sound discretion. Jones v. State, 843 S.W.2d 487, 499 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). A trial court, in exercising its discretion to grant or deny a request for a jury view, must consider the totality of the circumstances of the case, including, but not limited to, the timing of the request for the jury view, the difficulty and expense of arranging it, the importance of the information to be gained by it, the extent to which that information has been or could be secured from more convenient sources ( e.g., photographs, videotapes, maps, or diagrams), and the extent to which the place or object to be viewed may have changed in appearance since the controversy began. Mauricio v. State, 153 S.W.3d 389, 393 (Tex.Crim.App. 2005). In addition, the trial court, in exercising its discretion to grant or deny a request for a jury view, must give opposing counsel an opportunity to be heard on the question. Id. We find that it is not clear from the testimony of the officers that (1) the cameras even existed at the time of Andika's alleged escape, (2) that if the cameras did exist that day that they were recording 24 hours a day, or (3) that any video tapes were made the day of Andika's alleged escape. See id. at 393. Thus, we find that the trial judge did not abuse his discretion by denying the request for a jury view. See Jones, 843 S.W.2d at 499. We overrule issue three.

ISSUE FOUR: PROSECUTOR'S COMMENTS ABOUT VIDEO TAPE IN CLOSING ARGUMENT

Andika argues that he was harmed by the prosecutor's closing argument suggesting that a video tape was available to the defense upon the filing of a proper motion. He argues that a Motion for Discovery was made, and the State denied the existence of any tapes. Andika's counsel did not object to the prosecutor's argument. A defendant must show he objected and pursued his objection to an adverse ruling in order to be permitted to complain on appeal about an alleged erroneous jury argument. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Failure to object or pursue an objection to an adverse ruling forfeits a defendant's right to complain about the jury argument on appeal. Id. Thus, we find that Andika forfeited his right to complain about the prosecutor's jury argument. See id. We overrule issue four.

ISSUE FIVE: PERSONAL FEELINGS IN PROSECUTOR'S CLOSING ARGUMENT

Andika argues that the prosecutor's statement in closing argument that he had personal feelings about this case harmed him because it urged the jury to convict out of consideration for the prosecutor's personal feelings and suggested that the prosecutor had additional information not available to the jury to warrant the conviction. Andika's counsel did not object to the prosecutor's argument. We find that Andika forfeited his right to complain about the prosecutor's jury argument. See id. We overrule issue five.

ISSUE SIX: LEGAL SUFFICIENCY OF ENHANCEMENT FOR FEDERAL CONVICTION

Andika argues that the evidence is legally insufficient to establish that the federal conviction in the enhancement paragraph was a felony conviction because the offense carries a punishment range that could result in a fine only, which would be a misdemeanor in Texas. The State argues that the prior federal conviction was a felony in the federal system and was sufficient to establish that Andika has a prior felony conviction for enhancement purposes. Whether a prior conviction is a felony is a question of law; it is not subject to a "legal sufficiency" review. A federal conviction can be used for enhancement in Texas if the federal conviction carries confinement in a penitentiary as a possible punishment. Ex parte Blume, 618 S.W.2d 373, 375-76 (Tex.Crim.App. 1981) (relying on Texas Penal Code section 12.41 for the classification of offenses outside the Texas Penal Code). Penal Code section 12.41 states that a conviction not obtained from a prosecution under this code shall be classified as a "felony of the third degree" if imprisonment in a penitentiary is affixed to the offense as a possible punishment. TEX. PEN. CODE ANN. § 12.41(1) (Vernon 2003). Andika was convicted of the federal offense of Uttering Counterfeit Obligations or Securities:

Whoever, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C.A. § 472 (West Supp. 2005). Because the federal offense for which Andika was convicted carried confinement in the penitentiary as a possible punishment, we find no error in the trial court's determination that this conviction could be used for punishment-enhancement purposes. See Ex part Blume, 618 S.W.2d at 375-76. We overrule issue six.

ISSUE SEVEN: OVERBROAD AND VAGUE PUNISHMENT RANGE FOR FEDERAL CONVICTION IN ENHANCEMENT

Because the federal conviction in Andika's enhancement paragraph had a punishment range of a fine only or up to 20 years in prison, he argues that this range is so broad and vague that it makes it impossible to classify it as a felony or misdemeanor for purposes of enhancement. He argues this was a denial of due process. The State argues that Andika's argument is without merit. The United States Code classifies Andika's offense as a Class C felony because the maximum term of imprisonment authorized is less than twenty-five years but ten or more years. 18 U.S.C.A. § 3359(a)(3) (West 2000). We have already decided that for purposes of enhancement in Texas, Andika's federal conviction is a felony based on the possible penitentiary punishment. Thus, it is irrelevant whether the federal classification statute is overbroad and/or vague. We overrule issue seven.

ISSUE EIGHT: FACTUAL SUFFICIENCY OF EVIDENCE TO SHOW SAME PERSON

Andika argues that the evidence is factually insufficient to prove that Andika is the same person convicted in the cases alleged in the enhancement paragraph. He argues that the purported fingerprint expert, who was called to connect him to the pen packets for the prior felony convictions, was not established as an expert on fingerprint identification. The State argues that the expert was qualified to testify as a fingerprint expert. We conduct factual sufficiency reviews of the evidence of an offense — not of all disputed fact issues. See Hanks v. State, 137 S.W.3d 668, 670 (Tex.Crim.App. 2004). Thus, we cannot review the factual sufficiency of the enhancement to Andika's punishment. See id. However, we will review the evidentiary issue of whether the State's witness was qualified as a fingerprint expert. A prior conviction alleged for enhancement may be established by certified copies of a judgment and sentence and authenticated copies of the Texas Department of Criminal Justice records, including fingerprints, supported by expert testimony matching them to the known prints of the defendant. Beck v. State, 719 S.W.2d 205, 209 (Tex.Crim.App. 1986). Rule of Evidence 702 states: "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." The burden of establishing a witness's qualifications lies with the party offering the testimony. Matson v. State, 819 S.W.2d 839, 851 (Tex.Crim.App. 1991). No rigid formula exists for determining whether a particular witness is qualified to testify as an expert. Id. at 851 n. 10. Consequently, the question of whether a witness offered as an expert possesses the required qualifications rests largely in the trial court's discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); see also TEX. R. EVID. 702. Absent an abuse of discretion, the trial court's decision to admit or exclude testimony will not be disturbed. Wyatt, 23 S.W.3d at 27. Andika's attorney objected to the qualifications of Bob McQuary as a fingerprint expert. Testimony by McQuary on direct examination by the State and voir dire by Andika's attorney evidenced the following qualifications: (1) independent civilian consultant in the area of fingerprint identification for approximately 15 years; (2) engages in independent fingerprint expert type work about 25-30 times per year; (3) initial training was on-the-job training with the Navarro County Sheriff's Department; (4) attended the Department of Public Safety training academy and took a one-week course in fingerprint identification; (5) attended a two-week course in advanced fingerprint identification taught by the Department of Public Safety using the FBI training material; (6) is a certified instructor for the Texas Commission on Law Enforcement Education and Standards and teaches basic and advanced fingerprint identification and advanced crime scene investigation; (7) has testified in court on many occasions as a fingerprint expert; and (8) has not received any training by the FBI. The judge overruled Andika's objection that McQuary was not qualified. Based on the foregoing recitals, we find that the trial court did not abuse its discretion in permitting McQuary to testify as a fingerprint expert. See TEX. R. EVID. 702; Matson, 819 S.W.2d at 851; Wyatt, 23 S.W.3d at 27. We overrule issue eight.

CONCLUSION

Having overruled all of Andika's issues, we affirm the judgment.