Opinion
NO. 01-16-00652-CR
10-12-2017
JAN HEILBUT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 6 Harris County, Texas
Trial Court Case No. 2076524
MEMORANDUM OPINION
A jury found appellant, Jan Heilbut, guilty of the offense of interference with a police service animal, and the trial court assessed his punishment at three days' confinement and a $3,000 fine. In two points of error, appellant contends that the trial court erred in (1) denying his third motion to quash and (2) admitting State's Exhibits 5-10.
We affirm.
BACKGROUND
The State charged Heilbut with interference with a police service animal. The information stated in relevant part that Heilbut "did then and there unlawfully and recklessly INTERFERE WITH AND OBSTRUCT THE RIDE OF A POLICE SERVICE ANIMAL, TO-WIT, A HORSE, in a matter that INHIBITS AND RESTRICTS THE RIDER'S CONTROL OF THE ANIMAL, namely by GRABBING THE HORSES RAINES [sic] AND SLAPPING THE HORSE ON THE HIND END ATTEMPTING TO BUCK THE DEPUTY OFF THE HORSE." Heilbut filed his first motion to quash the information, stating that the information was vague and failed to identify certain elements of the offense.
The State then amended its information to alleged that Appellant did "did then and there unlawfully, INTERFERE WITH AND OBSTRUCT THE RIDER OF A POLICE SERVICE ANIMAL, TO WIT: A HORSE, named "Buckey," in a manner that INHIBITS AND RESTRICTS THE RIDER'S CONTROL OF THE ANIMAL, namely by GRABBING THE HORSE'S RAINS [SIC] AND SLAPPING THE HORSE ON THE HIND END ATTEMPTING TO BUCK THE DEPUTY, T. Guidry, OFF OF THE HORSE."
Heilbut filed a second motion to quash the information alleging several deficiencies in the State's amended information, including claims that the information did not allege with reasonable certainty the act or acts relied upon to show recklessness, and that several terms of the information were unconstitutionally vague. The trial court granted Heilbut's second motion to quash, and the case was dismissed on the State's motion.
Thereafter, the State filed a new information alleging that the appellant "did then and there unlawfully and recklessly INTERFERE WITH AND OBSTRUCT THE RIDER, T. GUIDRY, OF A POLICE SERVICE ANIMAL, TO-WIT; A HORSE named BUCKEY, in a manner that INHIBITS AND RESTRICTS THE RIDER'S CONTROL OF THE ANIMAL, namely by PULLING ON THE HORSE[']S REINS."
Heilbut filed a third motion to quash the information, alleging res judicata. Specifically, he argued in the motion that "all of the problems that existed with the [previous pleading] remain with the present information, but they do not need to be reconsidered on the merits because the prior resolution of the issues against the State is enough to warrant quashing this information as well under principles of res judicata."
After a hearing on this third motion to quash, the trial court denied the motion, stating, "So, on the grounds of res judicata, the Court finds that I have to deny your motion on that." Accordingly, the case proceeded to trial.
At trial, to refute the deputies' claim that he had "charged" at them, Heilbut testified that he was previously involved in a severe motorcycle wreck that left him unable to run. Thereafter, the State introduced State's Exhibits 5-9. Exhibits 5-9 are pictures of Heilbut in hunter's attire posing with some animals that he had shot. Heilbut objected to the introduction of these exhibits, contending that the photographs were evidence of extraneous bad acts for which he had not received pretrial notice. The trial court overruled this objection. The State then introduced into evidence State's Exhibit 10, which depicts Heilbut on top of a mountain, posing with a rifle and a chamois—a species of goat-antelope. Heilbut objected that the introduction of this photograph was "piling on more of the same," but the trial court admitted the photograph.
After the trial commenced, the jury found Heilbut guilty of interference with a police service animal. The trial court assessed Heilbut's punishment at three days' confinement and a $3,000 fine. In two points of error, Heilbut requests that this Court reverse the judgment of the trial court and remand this cause for a new trial.
MOTION TO QUASH
In point of error one, appellant contends that the trial court erred in denying his third motion to quash. Specifically, appellant claims that the amended information failed to specify how his conduct was reckless. Standard of Review
The rules with respect to the certainty required in an indictment also apply to an information. See Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) Therefore, we review a trial court's ruling on a motion to quash an information de novo. Id. (holding that review of trial court's decision on motion to quash warrants de novo rather than abuse of discretion standard of review). The trial court's ruling should be upheld if it is correct under any theory of law applicable to the case. State v. Zuniga, 512, S.W.3d 902, 906 (Tex. Crim. App. 2017); State v. Rhinehart, 333 S.W.3d 154, 161 (Tex. Crim. App. 2011) (applying ordinary rules of procedural default to State's appeal of trial court's order quashing indictment).
Analysis
Appellant claims that the amended information "did not sufficiently describe an act constituting recklessness with reasonable certainty." In response, the State asserts that appellant did not preserve error because he did not raise this argument before the date of trial, as required by Texas Code of Criminal Procedure, Article 1.14(b). We agree with the State.
Article 1.14(b), Texas Code of Criminal Procedure, in relevant part, provides:
(b) If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise
the objection on appeal or in any other post-conviction proceeding.TEX. CODE CRIM. PROC. ANN. art 1.14(b) (West 2005). Thus, when a defendant files a motion to quash, complaints about the information that are not contained in the motion to quash are not preserved for appellate review. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990) (holding that article 1.14(b) requires that substance of objection must be raised pre-trial or accused forfeits right to raise objection on appeal).
Here, appellant made no pretrial objection comporting with his first point of error. Appellant's third motion to quash—the motion under review here—is based solely on res judicata. Appellant's brief does not discuss res judicata at all, but contends that the information was deficient because it did not sufficiently describe an act constituting recklessness. This argument, while raised in appellant's second motion to quash, was not included in his third motion to quash. Indeed, appellant told the trial court that the merits of the second motion to quash "need not be reconsidered on the merits" because the information should be quashed "under the principles of res judicata." Because appellant does not address res judicata on appeal, and res judicata was the basis of his third motion to quash, appellant's issue on appeal is not preserved. Because there can be no fundamental error in a charging instrument, appellant waived his right to object to this particular defect on appeal. Shaw v. State, 728 S.W.2d 889, 890 (Tex. App.—Houston [1st Dist.] 1987, no pet.).
We overrule appellant's first point of error.
EVIDENTIARY CHALLENGES
In point of error two, appellant contends that State's Exhibits 5-10 should not have been admitted under Rules 401 and 403 of the Texas Rules of Evidence.
Standard of Review
We review a trial court's rulings on the admission of evidence under an abuse of discretion standard and will not reverse absent a clear abuse of discretion. Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). If the trial court's decision to admit the evidence lies within the zone of reasonable disagreement, then the decision must be upheld. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998) (op. on reh'g); see also Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
Analysis
Appellant contends that the trial court erred in admitting photographs of him engaged in the sport of hunting. Appellant contends that the photographs were irrelevant, and that, even if relevant, were more prejudicial than probative. TEX. R. EVID. 401, 403. In response, the State asserts the photographs are relevant and admissible under Rules 401 and Rule 403 to "disprove a defensive theory."
Therefore, we must first determine whether this evidence is relevant. Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. TEX. R. EVID. 401. Appellant's defense to the charge was that he was involved in a severe motorcycle wreck that left him unable to engage in serious physical activity, thus he could not have charged at the police horse. The photographs were introduced to rebut this claim by showing that appellant's physical condition was sufficient to allow him to go hunting. As such, the photographs were relevant.
Having determined that the evidence is relevant, we next consider whether the risk of unfair prejudice substantially outweighs the probative value. TEX.R. EVID. 403; Goldberg v. State, 95 S.W.3d 345, 366 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). Relevant evidence may be excluded if its potentially prejudicial effect substantially outweighs its probative value. Swarb v. State, 125 S.W.3d 672, 681 (Tex. App.—Houston [1st Dist.] 2003, pet. dism'd); see TEX. R. EVID. 403. The reviewing court, using an abuse-of-discretion standard, should "do more than decide whether the trial judge did in fact conduct the required balancing between probative and prejudicial values; 'the trial court's determination must be reasonable in view of all relevant facts.'" Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) (citations omitted). A Rule 403 balancing test includes, but is not limited to, the following factors:
(1) how probative is the evidence;Reese v. State 33 S.W.3d 238, 240--41 (Tex. Crim. App. 2000).
(2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible, way;
(3) the time the proponent needs to develop the evidence; and
(4) the proponent's need for the evidence.
The photographs, which depicted appellant hunting, were introduced by the State to rebut appellant's defensive theory that his physical limitations left him incapable of charging at the deputies in order to interfere with the police animal.
Appellant argues that the probative value of the photographs were outweighed by the danger of unfair prejudice because the photographs "could lead jurors to convict on an improper emotional basis, especially for those jurors who were disgusted or appalled by, or simply did not approve of the 'sport' of killing big game, or any wild animals." The State asserts its "theory of admissibility was that by showing the appellant was capable of hunting, it disproved the defense's theory that his physical limitations rendered him incapable of charging the deputies." The State also emphasizes the considerable discretion afforded to trial courts in evidentiary decisions that should not be reversed so long as the decision is correct under any theory of law applicable to the case. See Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). Because the photographs were presented to rebut a defensive theory of the appellant, the photographs were strongly probative. See Hajjar v. State, 176 S.W.3d 554, 561 (Tex. App.—Houston [1st Dist.] 2004, pet. re'd).
The photographs demonstrate appellant's physical condition after the injury that he asserts left him unable to engage in serious physical activity. The photographs help the jury by allowing them to see whether appellant sustained permanent physical injury, instead of relying solely on the testimony of appellant. There is nothing in the record to suggest that the photographs would confuse or distract the jury, or that a jury would place undue weight on the photographs, which do nothing more than portray appellant hunting after a surgery he said left him unable to engage in serious physical activity. Nothing in the record shows that any of the jurors would have been "disgusted or appalled by" appellant participating in the lawful act of hunting. Finally, the presentation of the photographs did not take an inordinate amount of time.
Rule 403 favors the admission of relevant evidence and carries with it a presumption that probative evidence will be more probative than prejudicial. See Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991). The alleged prejudice suggested by appellant does not overcome this presumption. The suggestions that the jury might convict on improper emotional basis because the State introduced photographs depicting appellant's hunting activities are unsupported.
Having reviewed the record, we conclude that the trial court acted reasonably when it admitted into evidence the photograph of the appellant. Consequently, the trial court did not abuse its discretion in admitting these photographs. We overrule appellant's second issue on appeal.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Keyes and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).