Opinion
No. 05-15-01126-CR No. 05-15-01127-CR No. 05-15-01128-CR No. 05-15-01129-CR No. 05-15-01130-CR No. 05-15-01131-CR No. 05-15-01132-CR No. 05-15-01133-CR No. 05-15-01134-CR No. 05-15-01135-CR No. 05-15-01136-CR No. 05-15-01138-CR
05-23-2016
William Chad Coleman, Appellant v. The State of Texas, Appellee
Greg Willis Criminal District Attorney Collin County, Texas John R. Rolater, Jr. Asst. Criminal District Attorney Chief of the Appellate Division SBT#00791565 2100 Bloomdale Rd., Ste. 200 McKinney, Texas 75071 (972) 548-4323 (214) 491-4860 fax jrolater@co.collin.tx.us Lindsey Wynne Asst. Criminal District Attorney
On Appeal from Cause Numbers 366-80672-2104, 366-80673-2014, 366-80674-2014, 366-81074-2014, 366-81075-2014, 366-81076-2014, 366-81077-2014, 366-81078-2014, 366-81192-2014, 366-81193-2014, 366-81194-2014, and 366-81195-2014 in the 366th District Court Judicial District Court of Collin County, Texas, the Honorable Ray Wheless, Judge Presiding.
State's Brief
Greg Willis
Criminal District Attorney
Collin County, Texas
John R. Rolater, Jr.
Asst. Criminal District Attorney
Chief of the Appellate Division
SBT#00791565
2100 Bloomdale Rd., Ste. 200
McKinney, Texas 75071
(972) 548-4323
(214) 491-4860 fax
jrolater@co.collin.tx.us
Lindsey Wynne
Asst. Criminal District Attorney
Table of Contents
Index of Authorities .................................................................................................. ii Statement of the Case ................................................................................................. 1 Statement Regarding Oral Argument ........................................................................ 1 Statement of Facts ...................................................................................................... 2 Summary of the State's Arguments ........................................................................... 2 State's reply to Appellant's sole point of error .......................................................... 2
Appellant's claim is not preserved for review because he did not object to the trial court's poll of the jury. He was not harmed because the record reflects that the jury's verdicts were unanimous ........................................................................ 2
Standard of review .................................................................................................. 2
Argument and authorities ....................................................................................... 3 Prayer ......................................................................................................................... 6 Certificate of Service ................................................................................................. 6 Certificate of Compliance .......................................................................................... 7
Index of Authorities
Cases
Barnett v. State, 189 S.W.3d 272 (Tex. Crim. App. 2006) ............................................................... 3 Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013) ............................................................... 5 Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997) ............................................................... 3 Darcy v. State, No. PD-1094-15, 2016 WL 1697708 (Tex. Crim. App. Apr. 27, 2016) (not yet reported) .................................................................................................................. 2 Hardeman v. State, 1 S.W.3d 689 (Tex. Crim. App. 1999) ................................................................... 4 Locke v. State, No. 06-06-00210-CR, 2007 WL 1890689 (Tex. App.—Texarkana July 3, 2007, no pet.) (mem. op., not designated for publication) ............................................... 3 Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) ............................................................... 3 Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005) ............................................................... 2
Statutes
Tex. Code Crim. Proc. art. 37.05 ............................................................................... 3
Rules
Tex. R. App. P. 33.1(a) .......................................................................................... 2, 3 Tex. R. App. P. 44.2(b) .............................................................................................. 5 Tex. R. App. P. 9.4(i)(2) ........................................................................................ 7 To the Honorable Court of Appeals:
Statement of the Case
Appellant pleaded guilty to a jury in multiple cases and received punishment as follows:
| Appeal No. | Trial No. | Offense | Sentence |
|---|---|---|---|
| 05-15-01126-CR | 366-80672-2014 | evading arrest | 20 years |
| 05-15-01127-CR | 366-80673-2014 | theft | 20 years |
| 05-15-01128-CR | 366-80674-2014 | aggravated assaultwith a deadly weapon | 20 years |
| 05-15-01129-CR | 366-81074-2014 | credit card abuse | 2 years |
| 05-15-01130-CR | 366-81075-2014 | arson | 20 years |
| 05-15-01131-CR | 366-81076-2014 | Unauthorized use of amotor vehicle | 2 years |
| 05-15-01132-CR | 366-81077-2014 | Burglary of ahabitation | 15 years |
| 05-15-01133-CR | 366-81078-2014 | credit card abuse | 2 years |
| 05-15-01134-CR | 366-81192-2014 | aggravated assaultwith a deadly weapon | Life |
| 05-15-01135-CR | 366-81193-2014 | cruelty to animals | 2 years |
| 05-15-01136-CR | 366-81194-2014 | arson | Life |
| 05-15-01138-CR | 366-81195-2014 | Unlawful possessionof a firearm by a felon | 10 years |
Statement Regarding Oral Argument
Oral argument is not requested.
Statement of Facts
The State will adduce facts as necessary in its argument.
Summary of the State's Arguments
Appellant's claim is not preserved for review because he did not object to the trial court's polling of the jury. In any event, he suffered no harm because the record otherwise demonstrates the jury's verdicts were unanimous.
State's reply to Appellant's sole point of error
Appellant's claim is not preserved for review because he did not object to the trial court's poll of the jury. He was not harmed because the record reflects that the jury's verdicts were unanimous.
Standard of review
To preserve error for appellate review, the record must show that: (1) a complaint was made by a timely request, objection, or motion; (2) sufficiently specific to make the trial court aware of the complaint; (3) and the trial court ruled on the complaint, either expressly or implicitly. Tex. R. App. P. 33.1(a); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005). Preservation of error is a systemic requirement that must be examined for all appellate claims. Darcy v. State, No. PD-1094-15, 2016 WL 1697708 at *2 (Tex. Crim. App. Apr. 27, 2016) (not yet reported).
Argument and authorities
Appellant claims in his sole issue that the trial court erred by not polling the jurors individually as to each verdict in the case. Appellant's brief at 19-21. But Appellant did not object to the form of the poll when the trial court sua sponte polled the jury after receiving their verdicts. 5 RR 204-07. Accordingly, Appellant failed to preserve his claim that the form of the poll was improper. Tex. R. App. P. 33.1(a).
Not all errors are subject to forfeiture by inaction of the defense at trial. See Marin v. State, 851 S.W.2d 275, 278-9 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). Some aspects of the criminal justice system may only be relinquished by express acts of an accused, such as the right to counsel and the right to a jury trial. Marin, 851 S.W.2d at 278-79. Other aspects of the criminal justice system may not be relinquished at all, most notably subject-matter jurisdiction of a court. Marin, 851 S.W.2d at 279. But a jury poll is a forfeitable right because the statute requires that a party request a poll. See Tex. Code Crim. Proc. art. 37.05. Thus, a jury poll is unlike rights that require an affirmative waiver based in statute, such as the right to jury trial, as well as systemic rights such as subject matter jurisdiction. Moreover, the Court of Criminal Appeals has held that a claim of an improper jury poll is forfeitable by a failure to timely object. Barnett v. State, 189 S.W.3d 272, 277 (Tex. Crim. App. 2006). See also Locke v. State, No. 06-06-00210-CR, 2007 WL 1890689 at *3 (Tex. App.—Texarkana July 3, 2007, no pet.) (mem. op., not designated for publication) (claim that jury not properly polled was forfeited by failure to contemporaneously object or raise claim in motion for new trial).
Appellant claims he was not afforded an opportunity to object to the trial court's poll and thus his failure to object is excused. Appellant's brief at 21. But the record indicates he had an opportunity to object to the trial court's method of polling. 5 RR 204-07. First, the trial court explained how the verdicts would be received outside the presence of the jury. 5 RR 204. Then, the jury returned and the verdicts were received. According to the time codes in the record, it took almost two minutes for the foreman of the jury to read the verdicts. 5 RR 204-07. The trial court then asked the jurors to raise their hands if the verdicts announced were unanimous verdicts and stated for the record that all jurors indicated it was their unanimous verdict. 5 RR 207. The trial court then spent at least one minute—approximately one full page in the record—thanking the jury, explaining what would happen next, and informing them they could observe. 7 RR 207-08. The trial court then heard information regarding restitution, victim impact statements, and pronounced sentence. 5 RR 210. The trial court interrupted pronouncement to ask whether there were any reason sentence should not be pronounced, and Appellant's attorney said there was not. 5 RR 210. The court then completed sentencing. 5 RR 210. Thus, contrary to Appellant's claim, there was ample opportunity after the trial court polled the jury to object to the manner of that polling, both while the jury was still in the jury box being addressed by the trial court as well as during the subsequent proceedings. Accordingly, he was not denied an opportunity to object, and this Court should summarily overrule his sole claim on appeal. See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (defendant had opportunity to object when trial court enquired whether there was a reason sentence should not be imposed); cf. Burt v. State, 396 S.W.3d 574, 578-79 (Tex. Crim. App. 2013) (defendant had no opportunity to object and preserve error when the error was contained within the trial court's written judgment issued after any opportunity to object).
Finally, even if Appellant's failure to object is excused, the record does not demonstrate that he was harmed. This Court must disregard any non-constitutional error that does not affect a substantial right. See Tex. R. App. P. 44.2(b). In this case, while the trial court did not poll the individual jurors by name, it did inquire of them collectively whether their verdict was unanimous. 5 RR 207. No juror dissented when given the opportunity by the trial court or while the foreman announced the verdicts. 5 RR 205-07. Nothing else in the record shows that the jurors were not unanimous. Accordingly, in the absence of a request by Appellant that the jurors be individually polled and in light of a record that demonstrates that the verdicts were unanimous, Appellant's substantial rights were not affected. See Tex. R. App. P. 44.2(b). Appellant's sole issue should be overruled.
Prayer
The State prays that Appellant's conviction and sentence be affirmed.
Respectfully submitted,
Greg Willis
Criminal District Attorney
Collin County, Texas
/s/ John R. Rolater, Jr.
John R. Rolater, Jr.
Assistant Criminal District Attorney
Chief of the Appellate Division
SBT#00791565
2100 Bloomdale Rd., Ste. 200
McKinney, TX 75071
(972) 548-4323
(214) 491-4860 fax
jrolater@co.collin.tx.us
Certificate of Service
A copy of the State's brief has been sent by electronic service to counsel for Appellant, Niles Illich, at niles@appealstx.com, on this, the 23 day of May, 2016.
/s/ John R. Rolater, Jr.
John R. Rolater, Jr.
Certificate of Compliance
This brief complies with the word limitations in Texas Rule of Appellate Procedure 9.4(i)(2). In reliance on the word count of the computer program used to prepare this brief, the undersigned attorney certifies that this brief contains 1,153 words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).
/s/ John R. Rolater, Jr.
John R. Rolater, Jr.