Opinion
NO. 01-16-00511-CR
07-18-2017
CURT DANIEL CROWDER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court Harris County, Texas
Trial Court Case No. 1509559
MEMORANDUM OPINION
A jury found appellant, Curt Daniel Crowder, guilty of the offense of possession with intent to deliver a controlled substance, namely 3,4-Methylenedioxy-N-Methacathinone, weighing more than four grams but less than 400 grams. After he pleaded true to the allegation in an enhancement paragraph that he had been previously convicted of a felony offense, the trial court assessed his punishment at confinement for twenty-five years. In three issues, appellant contends that the trial court's judgment should be modified and the trial court erred in excluding the testimony of two witnesses, who purportedly violated "the Rule," and in not holding a hearing on his motion for new trial.
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.103(a)(4)(B), 481.116(a), (d) (Vernon 2017).
See TEX. R. EVID. 614 (the Rule); see also TEX. CODE CRIM. PROC. ANN. art. 36.06 (Vernon 2007).
We modify the trial court's judgment and affirm as modified.
Background
Harris County Sheriff's Office ("HCSO") Sergeant G. Wilke, a member of the U.S. Marshal's Gulf Coast Violent Offender Task Force, testified that on March 20, 2014, he executed a felony arrest warrant for appellant. After learning that appellant was located at a certain apartment complex, Wilke and other law enforcement officers proceeded to the apartment where appellant was staying and knocked on the front door. Wilke noted that when he knocked, the door, which was not completely closed, opened. He then saw appellant lying on a couch in the apartment's living room and instructed him to stand up. Wilke placed appellant under arrest and noted that the apartment smelled of marijuana. Other law enforcement officers completed "a sweep" and "secure[d]" the apartment for safety reasons.
HCSO Deputy B. Katrib testified that in 2014, as a member of the "special investigations division," he received information that appellant was "involved with narcotics activities." He then sought the help of the U.S. Marshal's Gulf Coast Violent Offender Task Force to assist with apprehending appellant, who had "an open felony warrant for aggravated assault." On March 20, 2014, Katrib went with Sergeant Wilke and other law enforcement officers to the apartment where appellant was purportedly located. Katrib was the last officer to enter the apartment after appellant had been found, and he assisted in conducting "a protective sweep" of the apartment. In addition to appellant, Brittny Ham and her daughter were also inside the apartment. Ham told the officers that they were "welcome to stay," and she consented to a search of her apartment. Katrib noted that appellant had been "staying" at the apartment and his belongings, including his clothing, were in a closet near the kitchen.
Deputy Katrib further testified that during a search of the apartment, in the closet next to the kitchen, he found a "black Century safe," which had "a distinct strong odor of marijuana." The safe did not belong to Ham, and Katrib obtained a warrant to search the safe and appellant's sport utility vehicle ("SUV"), which was parked at the apartment complex. Katrib noted that the key for the safe was located on the same key ring as the key for appellant's SUV, and the key ring with the keys was sitting on the dining room table "next to where [appellant] was standing in handcuffs" when Katrib entered the apartment.
Upon opening the safe, Deputy Katrib found money, documents, a narcotics ledger, weights to calibrate a digital scale, a "heat strength plastic bag" containing "high-grade marijuana," a "[Z]iploc bag" of marijuana, and an "[o]ff white pinkish colored crystal like substance," admitted into evidence as State's Exhibit 43. In appellant's SUV, in the driver's side door panel, Katrib found "14 grams of marijuana," "a baby bottle which is . . . commonly used to package codeine syrup," and medication bottles containing pills. Katrib also found "marijuana residue on the driver's seat" and a digital scale in the SUV's center console.
Donna Williams, an analyst for the Harris County Institute of Forensic Sciences, testified that she analyzed State's Exhibit 43, the "[o]ff white pinkish colored crystal like substance," which tested positive for 3,4-Methylenedioxy-N-Methacathinone, otherwise known as methylone, and had "a net weight of 8.599 grams plus or minus .006 gram."
Violation of the Rule
In his second issue, appellant argues that the trial court erred in excluding the testimony of two witnesses, Ham and Christopher Brazil, who purportedly violated the Rule, because the record does not show that either party invoked the Rule, the witnesses' testimony "could have shown that the consent [given by] Ham . . . to search [her] apartment was coerced and not voluntary and potentially that the [narcotics] in question were not [a]ppellant's as he had no knowledge of them," and the trial court's ruling prevented appellant from "call[ing] [any] witnesses in support of his defense." See TEX. R. EVID. 614 (the Rule); see also TEX. CODE CRIM. PROC. ANN. art. 36.06 (Vernon 2007).
We note that the name "Brazil" is spelled differently throughout the record and the parties' briefing in this case.
"At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own." Id. The purpose of the Rule is to prevent the testimony of one witness from influencing the testimony of another. Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005); Martinez v. State, 867 S.W.2d 30, 40 (Tex. Crim. App. 1993); Phillips v. State, 64 S.W.3d 458, 459 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Once the Rule is invoked, the trial court instructs the witnesses that they may not converse with one another or with any other person about the case, except by permission from the court. TEX. CODE CRIM. PROC. ANN. art. 36.06; Russell, 155 S.W.3d at 180. Further, pursuant to the Rule, the trial court must exclude witnesses from the courtroom during the testimony of other witnesses. TEX. R. EVID. 614. If a witness violates the Rule, the testimony of that witness may be admitted or excluded at the trial court's discretion. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). On appeal, the trial court's decision to admit or exclude testimony will not be disturbed absent an abuse of that discretion. Id.; see also Phillips, 64 S.W.3d at 460.
At trial, outside the presence of the jury, the trial court announced that it would "discuss possible allegations of the [R]ule violation." After which, the State explained:
I was told [that] . . . [appellant], Chris Brazil, and Brittny Ham [were] all in the witness room talking to [appellant's trial] attorney. I was told later by [appellant's trial attorney] . . . that he was, in fact, talking about the case with Brittny Ham, Chris Brazil, and [appellant] all present in the same room, which would be a violation of the Rule.The trial court then asked appellant's trial attorney whether he had been "talking about the case with [appellant], Mr. Brazil, and Ms. Ham." And appellant's attorney responded: "Yes, I was, Judge." The trial court then questioned, "And you accept that you were in violation of the [R]ule"? To which appellant's attorney stated, "I did not think about it at the time, but yes, I was."
When I came back out and talked to Brittny Ham again she said that the officers had said [that] as long as she cooperate[d] and t[old] officers where all of [appellant's] . . . items [were] that nothing bad would happen to her and I asked her how she knew that. She said, I was very scared. I didn't want them to take my baby. That is inconsistent with what she had told me over the last two days.
The State then moved to exclude the testimony of Brazil "in the [defense's] case in chief and any subsequent hearings and motions throughout th[e] trial based on the fact [that] the [R]ule was violated and that [a] witness was in the same room as [appellant] and a [S]tate's witness, [Ham], discussing th[e] case." The State asserted that it would not call Ham to testify on its behalf and requested that the trial court exclude her testimony should the defense seek to call her as a witness due to the "same [Rule] violation." The trial court granted the State's requests and excluded the testimony of both Brazil and Ham from trial.
To preserve error for appeal, a party must make a timely, specific objection or request in the trial court and obtain a ruling on the objection. TEX. R. APP. P. 33.1(a); Garza v. State, 126 S.W.3d 79, 81-82 (Tex. Crim. App. 2004). The rationale of rule 33.1 is that if objections are raised before the trial court as soon as error becomes foreseeable, they may be addressed and the error possibly corrected or avoided. Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009). Notably, the record must show that the complaining party gave the trial court an opportunity to rule on the complaint by presenting that complaint to the trial court in a specific and timely objection. TEX. R. APP. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). A reviewing court will not consider errors, even those of constitutional magnitude, that were not called to the trial court's attention. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd).
At trial, appellant did not object to the trial court's exclusion of the testimony of Ham or Brazil, did not raise the arguments that he now advances on appeal, including his argument that the Rule was not invoked by either party, and actually agreed with the trial court and the State that the Rule had been violated when appellant, Ham, Brazil, and appellant's trial attorney met together to discuss the case during trial. See, e.g., Thomas v. State, Nos. 13-14-00049-CR, 13-14-00050-CR, 2014 WL 4658719, at *1-2 (Tex. App.—Corpus Christi Sept. 18, 2014, no pet.) (mem. op., not designated for publication) (complaint about Rule not preserved where defendant "acquiesced"). Having never made his complaint to the trial court about its exclusion of the testimony of Ham or Brazil, appellant cannot now make his complaint for the first time on appeal. See TEX. R. APP. P. 33.1(a); see also Harper v. State, No. AP-76452, 2012 WL 4833834, at *4-5 (Tex. Crim. App. Oct. 10, 2012) (Rule complaint not preserved where defendant did not object); Bryant v. State, 282 S.W.3d 156, 161-62 (Tex. App.—Texarkana 2009, pet. ref'd); Caron v. State, 162 S.W.3d 614, 618-19 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (error not preserved where defendant did not object to trial court's ruling about Rule); Acuna v. State, No. 03-03-00203-CR, 2004 WL 2732255, at *4 (Tex. App.—Austin Dec. 2, 2004, pet. ref'd) (mem. op., not designated for publication). Accordingly, we hold that appellant has not preserved his second issue for our review.
Motion for New Trial Hearing
In his first issue, appellant argues that the trial court erred in not holding a hearing on his motion for new trial because "the affidavit attached to [his] motion raised matters not determinable from the record upon which [he] could be entitled to relief."
We review a trial court's denial of a hearing on a new-trial motion for an abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). The purposes of a new-trial hearing are (1) to determine whether the case should be retried or (2) to complete the record for presenting issues on appeal. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). A defendant does not have an absolute right to a hearing on his motion for new trial. Id. However, a trial court abuses its discretion in not holding a hearing if the new-trial motion and accompanying affidavits (1) raise matters that are not determinable from the record and (2) establish reasonable grounds showing that the defendant could potentially be entitled to relief. Id. Notably, it is a defendant's burden to ensure that a hearing on his motion is set on a date within the trial court's jurisdiction. Keen v. State, 85 S.W.3d 405, 411 (Tex. App.—Tyler 2002, pet. ref'd); Sexton v. State, 51 S.W.3d 604, 610 (Tex. App.—Tyler 2000, pet. ref'd); Crowell v. State, 949 S.W.2d 37, 38 (Tex. App.—San Antonio 1997, no pet.); Ryan v. State, 937 S.W.2d 93, 97 (Tex. App.—Beaumont 1996, pet. ref'd); see also Lara v. State, No. 01-15-00472-CR, 2016 WL 2342769, at *3-4 (Tex. App.—Houston [1st Dist.] May 3, 2016, no pet.) (mem. op., not designated for publication); Bailey v. State, No. 05-12-00634-CR, 2013 WL 3974047, at *4 (Tex. App.—Dallas Aug. 2, 2013, no pet.) (mem. op., not designated for publication) ("Courts have repeatedly held that it is the [movant]'s burden to timely set a hearing on a motion for new trial."); Mendez v. State, No. 14-99-00810-CR, 2000 WL 1228698, at *1 (Tex. App.—Houston [14th Dist.] Aug. 31, 2000, no pet.) (not designated for publication).
Here, appellant was sentenced on May 26, 2016. Appellant then timely filed his motion for new trial on June 24, 2016. See TEX. R. APP. P. 21.4(a). A hearing on his motion needed to occur on or before August 9, 2016. See TEX. R. APP. P. 21.8 (trial court must rule on motion for new trial within seventy-five days after sentence imposed, otherwise motion overruled by operation of law); State v. Moore, 225 S.W.3d 556, 569 (Tex. Crim. App. 2007). Although the trial court, in response to appellant's motion for new trial, signed an order stating that he was "entitled to a hearing" on his motion, it, in its order, did not set a date for a hearing, and the record does not reflect that appellant requested that a hearing be set or obtained a hearing on or before August 9, 2016. See Lara, 2016 WL 2342769, at *3-4 ("When a defendant presents a motion for new trial to the trial court, the burden rests upon [him], as the party presenting the motion, to ensure that the hearing on the motion is set . . . ."); Poitinger v. State, No. 14-07-00155-CR, 2008 WL 1838981, at *2 (Tex. App.—Houston [14th Dist.] Apr. 24, 2008, no pet.) (mem. op., not designated for publication) (defendant must develop record to demonstrate efforts to schedule hearing before expiration of trial court's jurisdiction); Tello v. State, 138 S.W.3d 487, 496 (Tex. App.—Houston [14th Dist.] 2004), aff'd on other grounds, 180 S.W.3d 150 (Tex. Crim. App. 2005) (same); Hernandez, 2003 WL 1735136, at *1-2 (trial court did not err in not conducting hearing where defendant did not secure hearing before motion overruled by operation of law); Poitinger v. State, No. 14-97-00512-CR, 1999 WL 816249, at *3 (Tex. App.—Houston [14th Dist.] Oct. 14, 1999, no pet.) (not designated for publication) ("Although a hearing on the motion [for new trial] was granted-the burden was on [movant] to continue to see that a hearing [was] properly set before the motion for new trial [was] overruled by operation of law."); see also Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006) ("It is usually the appealing party's burden to present a record showing properly preserved, reversible error.").
Because appellant did not secure a hearing on his motion for new trial before it was overruled by operation of law, we hold that the trial court did not err in not conducting a hearing on appellant's motion.
We overrule appellant's first issue.
Modification of Judgment
In his third issue, appellant argues that the trial court's judgment should be modified to reflect that he pleaded true to the allegation in an enhancement paragraph that he had been previously convicted of a felony offense and the trial court found the allegation to be true. The State also requests that we modify the trial court's judgment.
Here, the trial court's written judgment does not accurately comport with the record in this case in that it states "N/A," meaning "not applicable," in regard to appellant's "[p]lea to 1st [e]nhancement [p]aragraph." Further, the judgment states "N/A" in regard to the trial court's "[f]indings on 1st [e]nhancement [p]aragraph." See Dromgoole v. State, 470 S.W.3d 204, 226-27 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (modifying judgment which incorrectly reflected trial court's finding on enhancement paragraph was "n/a," meaning "not applicable" (internal quotations omitted)). The record, however, reveals that appellant actually pleaded "[t]rue" to the allegation in the enhancement paragraph that he had been previously convicted of a felony offense and the trial court found the allegation in the enhancement paragraph to be "true."
"[A]ppellate court[s] ha[ve] the power to correct and reform a trial court judgment 'to make the record speak the truth when [they] ha[ve] the necessary data and information to do so, or make any appropriate order as the law and nature of the case may require.'" Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet ref'd)). This is true no matter who, or if anyone, has called the matter to the attention of the appellate court. See French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Dromgoole, 470 S.W.3d at 226; Asberry, 813 S.W.2d at 529-30 ("The authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court.").
Accordingly, we modify the trial court's judgment to reflect that appellant pleaded "[t]rue" to the "1st [e]nhancement [p]aragraph." We further modify the trial court's judgment to reflect that the trial court found the allegation in the "1st [e]nhancement [p]aragraph" to be "true." See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Torres v. State, 391 S.W.3d 179, 185 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (modifying judgment to state defendant pleaded "true" to allegations in enhancement paragraphs).
We sustain appellant's third issue.
Conclusion
We affirm the judgment of the trial court as modified.
Terry Jennings
Justice Panel consists of Justices Jennings, Bland, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).