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concluding that appellant failed to show that his conviction should have been reversed on speedy trial issue because his brief merely listed four factors set forth in Barker but presented no argument about how those factors applied to his case
Summary of this case from Barnes v. StateOpinion
No. 05-02-00523-CR.
Opinion Issued March 13, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-00470-LV. AFFIRMED.
Before Justices JAMES, FITZGERALD, and LANG.
MEMORANDUM OPINION
William Robert Barnes appeals his conviction for unauthorized use of a motor vehicle, enhanced by two prior convictions. After the jury found appellant guilty and the alleged enhancement convictions true, the jury assessed appellant's punishment at twenty-five years' imprisonment. Appellant brings eighteen points of error asserting the evidence is legally and factually insufficient to support appellant's conviction and challenging various rulings of the trial court. We affirm the trial court's judgment. In his first and third points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim. App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim. App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim. App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim. App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). Appellant argues the evidence is legally and factually insufficient to show his operation of the vehicle was without the effective consent of the owner. Eldon Armstrong testified his Chevrolet Suburban was stolen from his driveway. After appellant led the police on a long chase, Texas Department of Public Safety troopers shot out the tires of the Suburban and arrested appellant who was driving the vehicle. Armstrong testified he did not give appellant permission to drive the Suburban. The steering column of the Suburban was broken. Grand Prairie Police Officer Stephen Courson testified appellant said he had stolen the Suburban. Appellant testified he borrowed the Suburban from a friend, that he did not know the Suburban was stolen, and that he ran from the police because his passenger told him to do so. We conclude the evidence is legally and factually sufficient to show appellant knew he did not have the effective consent of the Suburban's owner to drive the vehicle. We overrule appellant's first and third points of error. In his second and fourth points of error, appellant contends the evidence is legally and factually insufficient to support the jury's finding appellant used the Suburban as a deadly weapon. A deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(17)(B) (Vernon 1994). The evidence shows appellant drove the Suburban at speeds of over one hundred miles per hour, ran red lights, tried to force other vehicles off the road, tried to cause other vehicles to wreck, swerved toward a sheriff's car in an attempt to force it off the road, and caused an accident between vehicles trying to avoid appellant. Police officers testified that the manner of appellant's driving the Suburban showed he used it as a deadly weapon. A videotape taken by a television station's helicopter of the last portion of the police chase showed appellant swerving the Suburban at one of the squad cars. Appellant testified he did not speed, he did not run any red lights, he did not swerve toward other vehicles, and he did not cause a collision. Applying the appropriate legal and factual sufficiency standards of review, we conclude the evidence is legally and factually sufficient to show appellant used the Suburban as a deadly weapon. We overrule appellant's second and fourth points of error. In his fifth point of error, appellant contends the trial court erred in allowing appellant to represent himself at trial without properly admonishing him. In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court ruled the right to the effective assistance of counsel guaranteed in the Sixth Amendment includes the right not to be represented by counsel and to be allowed to proceed pro se. Faretta, 422 U.S. at 819; see Blankenship v. State, 673 S.W.2d 578, 582 (Tex.Crim.App. 1984). As long as the defendant's decision to represent himself is knowingly and intelligently made, "his choice must be honored." Faretta, 422 U.S. at 834; Blankenship, 673 S.W.2d at 583. The trial court's role is to advise the defendant of the dangers and disadvantages of self-representation so that the record will establish that "he knows what he is doing and his choice is made with eyes open." Blankenship, 673 S.W.2d at 583 (quoting Faretta, 422 U.S. at 835). No matter how wrong the trial court may believe the defendant is in choosing to represent himself, the trial court is not permitted to substitute its judgment on this issue for that of a defendant who has knowingly and voluntarily chosen to proceed pro se. That decision is the defendant's, who "must be allowed to represent himself `if he truly wants to do so.'" Id. at 584 (quoting Faretta, 422 U.S. at 817). "The decision is made `voluntarily' if it is uncoerced." Collier v. State, 959 S.W.2d 621, 626 (Tex.Crim.App. 1997). In this case, the trial court observed appellant was well spoken. Appellant told the trial court he had a law degree and had taken and passed the Tennessee bar exam. The trial court informed appellant of the pitfalls of failing to follow the rules of procedure and evidence, of how those rules may prevent appellant from getting evidence before the jury if he fails to present it correctly, of how those rules may allow the State to present certain evidence if appellant fails to make timely and correct objections, and of how appellant could accidently open up a subject he had wished to keep closed. The trial court also admonished appellant there would be no one to advise him of whether he should testify. The trial court sought to insure the record would show "I told you everything bad I could." Appellant does not explain what additional admonishments the trial court should have given or why the admonishments given were insufficient. The trial court's admonishments were sufficient for this Court "to make an assessment that the defendant was made aware of the dangers and disadvantages of the self-representation." Goffney v. State, 843 S.W.2d 583, 585 (Tex.Crim.App. 1992). Considering all the trial court's admonishments, we conclude the record shows the trial court sufficiently admonished appellant. See Collier, 959 S.W.2d at 626. We overrule appellant's fifth point of error. In his sixth point of error, appellant contends the trial court erred in denying appellant's request for a transcript of the prior aggravated kidnaping trial in which appellant was acquitted. The aggravated kidnaping case arose out of the same facts; the complainant in that case was a woman who was in the Suburban with appellant during the chase. Appellant was acquitted of aggravated kidnaping in a trial held before this trial. Appellant asserted that, in his first trial under this indictment, the State had used transcriptions of witnesses' testimony from the aggravated kidnaping trial. However, the prosecutor in this case told the trial court those transcriptions were no longer in the State's possession. The record does not contain a written request by appellant for a transcription of the aggravated kidnaping trial, and the record does not contain an oral request for the transcriptions before the day of trial. Appellant relies on three cases in support of his motion for the transcriptions: Britt v. North Carolina, 404 U.S. 226 (1971); Armour v. State, 606 S.W.2d 891 (Tex.Crim. App. [Panel Op.] 1980); and Billie v. State, 605 S.W.2d 558 (Tex.Crim.App. 1980). In each of those cases, the defendant timely filed written motions requesting the transcriptions. See Britt, 404 U.S. at 226 (written request within one month of first trial); Armour, 606 S.W.2d at 891 (written request within fifteen days of first trial); Billie, 605 S.W.2d at 559 (written request within eleven days of first trial). In this case, the record does not show appellant ever made a written request for the transcriptions, and the only oral request on the record was not made until March 2002, about four years after his aggravated kidnaping trial. We hold the trial court did not abuse its discretion in denying appellant's motion for transcriptions of the aggravated kidnaping trial. We overrule appellant's sixth point of error. In his seventh point of error, appellant contends the trial court erred in denying appellant a hearing on his Batson objections. Appellant argues in his brief, "Appellant submits that the trial court sua sponte denied the defense's right to hear the State's proffered reasons for the use of its peremptory strikes." In fact, the trial court asked the prosecutor to respond to appellant's Batson objections, and the prosecutor stated his reasons for peremptorily striking certain prospective jurors. The trial court offered appellant the opportunity to question the prosecutor about the reasons for the State's peremptory strikes, and appellant declined the opportunity to question the prosecutor. Appellant's assertion that he was denied a hearing on his Batson objections is not supported by the record. We overrule appellant's seventh point of error. In his eighth point of error, appellant contends the trial court erred in overruling appellant's Batson objections. To overcome a prima facie case of racial discrimination in jury selection, the prosecutor must proffer a race-neutral explanation. Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam); Batson v. Kentucky, 476 U.S. 79, 97 (1986). Although the explanation must be race neutral, it need not be persuasive or even plausible. See Purkett, 514 U.S. at 768. On appeal, the trial court's decision on the issue of purposeful discrimination is given great deference because a determination of this issue requires an assessment of the credibility and the content of the striking party's explanation and all other relevant facts and circumstances. See Alexander v. State, 866 S.W.2d 1, 8 (Tex.Crim.App. 1993). The reviewing court will not disturb the trial court's decision unless it is clearly erroneous. See Hernandez v. New York, 500 U.S. 352, 369 (1991); Whitsey v. State, 796 S.W.2d 707, 727 (Tex.Crim.App. 1989) (op. on reh'g). In other words, a reviewing court must not reverse a trial court's Batson decision unless the reviewing court is left with a firm conviction that a mistake has been committed. See Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim. App. 1992); Whitsey, 796 S.W.2d at 721. In this case, the prosecutor explained he struck prospective jurors 23, 26, and 37 because they had criminal backgrounds. The prosecutor struck prospective juror 20 because "he at first indicated he had a problem with the one witness rule. He was confused at several of the scenarios that I posed to him." Appellant did not cross-examine the prosecutor about his proffered explanations. Appellant presents no argument asserting the trial court erred in overruling appellant's Batson objection to prospective jurors 23, 26, and 37. As for prospective juror 20, appellant argues, "The State improperly struck juror no. 20 on the pretense of a violation of the `one witness rule' which does not exist. Zinger v. State, 932 S.W.2d 511 (Tex.Crim.App. 1996)." In Zinger, the court of criminal appeals held a prospective juror's refusal to find the testimony of one witness could constitute proof beyond a reasonable doubt was not a legitimate ground for a challenge for cause. Id. at 514. However, the prosecutor's reason is a race-neutral one, and Batson and its progeny do not prohibit the State from exercising a peremptory challenge on a prospective juror on that ground. We overrule appellant's eighth point of error. In his ninth point of error, appellant contends "the trial court erred in overruling appellant's objection to the proffered testimony of Detective Knisley concerning factual observations in regard to Vivian Harrison who was in the vehicle with appellant due to collateral estoppel." Appellant objected to various portions of Knisley's testimony on the grounds it constituted evidence of an "extraneous offense," it was non-responsive, and it was hearsay, but he did not object to Knisley's testimony on the ground of collateral estoppel. Because appellant's objections at trial to Knisley's testimony do not comport with his complaint on appeal under this point of error, no error is preserved for our review. See Tex. R. App. P. 33.1; Trevino v. State, 991 S.W.2d 849, 854-55 (Tex.Crim. App. 1999); Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim. App. 1997). We overrule appellant's ninth point of error. In his tenth point of error, appellant contends "the trial court erred in overruling appellant's requested sua sponte limiting instruction on the admissibility of evidence of extraneous offense." During the testimony of Jack Downs, a sergeant with the Texas Department of Public Safety, Downs referred to the passenger in the Suburban with appellant during the police chase as a "hostage" and a "victim." During the guilt/innocence phase of the trial, the trial court considered whether to submit an oral instruction to the jury that Downs's references to "hostage" and "victim" were not evidence. Appellant did not request this instruction. Appellant insisted that if the trial court submitted that instruction, then the trial court had to instruct the jury that evidence of all extraneous offenses was irrelevant. The trial court decided not to present any oral instruction to the jury. Because appellant did not request this instruction and did not object to the trial court's refusal to present only the instruction about the witnesses' use of the words "hostage" and "victim," no error is preserved for review. Tex. R. App. P. 33.1. Even if appellant had preserved error, appellant's argument on appeal is that the instruction was required by Huizar v. State, 12 S.W.3d 479 (Tex.Crim.App. 2000). In Huizar, the court of criminal appeals ruled that a trial court is statutorily required at the punishment phase to instruct the jury that it must find beyond a reasonable doubt the defendant committed extraneous offenses before it can consider those extraneous offenses. Id. at 481. Huizar does not concern the necessity of limiting instructions for extraneous offenses during the guilt/innocence phase of the trial, which appears to be the issue under this point of error. Because any error was not preserved and appellant's sole authority on appeal does not support his argument, appellant's argument lacks merit. We overrule appellant's tenth point of error. In his eleventh point of error, appellant contends "the trial court erred in failing to charge the jury on the issue of double jeopardy." Appellant argues, "The issue of a fact issue on the legal issue of double jeopardy was raised by Appellant and the trial court erred in not charging the jury on this defense." Appellant does not point out in his brief what fact issue existed for the jury to determine, and our review of the record has not disclosed the existence of a fact issue. Appellant's point of error is not supported by adequate argument or by the record. Tex. R. App. P. 38.1(h). We overrule appellant's eleventh point of error. In his twelfth point of error, appellant contends the trial court erred in denying appellant's special plea of double jeopardy. Appellant asserted in his special plea he has been prosecuted for the same offense in Hood County in cause number 7377 and that the former prosecution was improperly terminated in a trial before the court after jeopardy had attached. See Tex. Code Crim. Proc. Ann. art. 27.05 (Vernon 1989) (defendant's special plea). Appellant's special plea of double jeopardy was based on the fact a mistrial was declared after jeopardy had attached in appellant's Hood County trial for aggravated assault on a peace officer. The record shows that offense allegedly occurred during the police chase of appellant while he was driving the Suburban. However, aggravated assault on a peace officer and unauthorized use of a motor vehicle share none of the same elements. Compare Tex. Pen. Code Ann. § 22.02(b)(2) (Vernon 1994) with id. § 31.07(a). The two offenses involve separate and distinct acts. Accordingly, no double-jeopardy violation occurred. See Vick v. State, 991 S.W.2d 830, 833 (Tex.Crim.App. 1999). We overrule appellant's twelfth point of error. In his thirteenth point of error, appellant contends the trial court erred in denying his motion to dismiss for failure to conduct a speedy trial, citing Barker v. Wingo, 407 U.S. 514 (1972). Appellant lists the four factors in Barker, but he presents no argument of how they apply to his case. Accordingly, appellant's brief does not show his conviction should be reversed on this ground. See Tex. R. App. P. 38.1(h); Holberg, 38 S.W.3d at 141. We overrule appellant's thirteenth point of error. In his fourteenth point of error, appellant contends the trial court erred in denying appellant's motion to quash the indictment. Appellant's argument in his brief does not discuss the grounds included in appellant's motion to quash. Accordingly, appellant has not shown the trial court erred in denying appellant's motion to quash. To the extent the arguments appellant asserts on appeal may have been presented orally to the trial court, an oral motion to quash does not preserve error for appeal. See Tex. Code Crim. Proc. Ann. art. 27.10 (Vernon 1989); Stoutner v. State, 36 S.W.3d 716, 719 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd); State v. York, 31 S.W.3d 798, 803 (Tex.App.-Dallas 2000, pet. ref'd). Also, because appellant's argument on appeal differs from his motion to quash at trial, appellant failed to preserve any error for our review. Tex. R. App. P. 33.1; Schultz v. State, 725 S.W.2d 411, 413 (Tex.App.-Houston [1st Dist.] 1987), aff'd, 771 S.W.2d 549 (Tex.Crim.App. 1989). We overrule appellant's fourteenth point of error. In his fifteenth point of error, appellant contends "the trial court erred in allowing the district attorney to present and introduce remote offenses committed by appellant during cross examination." Appellant cites to the record for his objection to the admission of his prior convictions for unauthorized use of a motor vehicle. Appellant objected to the evidence of these convictions "on the grounds that the UUMVs are similar offenses and their prejudicial effect would clearly, because of the similarity of the offenses and the length, would be clearly more prejudicial than probative." Because appellant's argument on appeal, remoteness, differs from his objection at trial, similarity to the charged offense, no error is presented for our review. Tex. R. App. P. 33.1; Winslow v. State, 742 S.W.2d 801, 804 (Tex.App.-Corpus Christi 1987, pet. ref'd). Also, appellant's argument in his brief makes no application of the facts to the controlling law to show admission of the convictions was error. Accordingly, this point is inadequately briefed. See Tex. R. App. P. 38.1(h); McCarthy v. State, 65 S.W.3d 47, 49 n. 2 (Tex.Crim.App. 2001), cert. denied, 122 S.Ct. 2693 (2002); Holberg, 38 S.W.3d at 141. We overrule appellant's fifteenth point of error. In his sixteenth and eighteenth points of error, appellant contends the trial court erred in admitting State's exhibits 6 and 10, penitentiary packets. In his seventeenth point of error, appellant contends the evidence is legally insufficient to support a finding of true to the second enhancement paragraph. Appellant's brief merely repeats the purported objections at trial. Appellant's brief contains no argument explaining why the exhibits were inadmissible, and it does not contain any citation to authority showing the exhibits are inadmissible. See Tex. R. App. P. 38.1(h). Accordingly, these points of error present nothing for our review. McCarthy, 65 S.W.3d at 49 n. 2; Holberg, 38 S.W.3d at 141. We overrule appellant's sixteenth, seventeenth, and eighteenth points of error. We affirm the trial court's judgment.
This Court reversed appellant's conviction from his first trial and remanded for a new trial. See Barnes v. State, No. 05-98-01076-CR (Tex.App.-Dallas Oct. 11, 2000, pet. ref'd) (not designated for publication).
Appellant includes additional argument in the appendix to the brief. Argument must be presented in the brief itself and not in an appendix. See Tex. R. App. P. 38.1(h). It appears the additional argument was placed in the appendix in an attempt to avoid the page limits for the brief, which is prohibited. Id. 38.1(j)(2). Accordingly, we do not consider the argument included in the appendix.
Furthermore, appellant cites only one case, Theus v. State, 863 S.W.2d 489 (Tex.Crim.App. 1993), in support of his argument. This opinion holds a court of appeals must allow an appellant the opportunity to file another appellant's brief when a cause has been remanded to the court of appeals for further proceedings. Id. at 490. Because this cause is not before us on remand from the court of criminal appeals, the cited opinion is inapplicable.