Opinion
No. 05-12-00917-CR
09-06-2013
MAXIMO MARTINEZ, Appellant v. THE STATE OF TEXAS, Appellee
Counsel of Record: Lynn Richardson Chief Public Defender Dallas County, Texas Katherine A. Drew Chief, Appellate Division Dallas County Public Defender's Office Julie Woods Assistant Public Defender Attorneys for Appellant
Appellant Requests Oral Argument
On appeal from Criminal District Court No. 7
of Dallas County, Texas
In Cause No. F11-33935-Y
APPELLANT'S BRIEF
Counsel of Record: Lynn Richardson
Chief Public Defender
Dallas County, Texas
Katherine A. Drew
Chief, Appellate Division
Dallas County Public Defender's Office
Julie Woods
Assistant Public Defender
Attorneys for Appellant
LIST OF PARTIES
APPELLANT
Maximo Martinez
APPELLEE
The State of Texas
DEFENSE COUNSEL AT TRIAL
James Jamison
529 W. 12th Street
Dallas, Texas 75208
STATE'S ATTORNEY AT TRIAL
Sneha Patel and Summer Elmazi
Dallas County District Attorney's Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
APPELLANT'S ATTORNEY ON APPEAL
Julie Woods
Dallas County Public Defender's Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
STATE'S ATTORNEY ON APPEAL
Craig Watkins (or his designated representative)
Dallas County District Attorney's Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-439
TABLE OF CONTENTS
LIST OF PARTIES............ ii INDEX OF AUTHORITIES............ v STATEMENT OF THE CASE............ 1 ISSUES PRESENTED............ 2 STATEMENT OF FACTS............ 3 SUMMARY OF ARGUMENT ............ 5 ARGUMENT ............ 7
Point of Error 1, Restated ............ 7
The State's failure to properly amend the indictment affected Appellant's substantial rights.
Facts............ 7
Applicable Law............ 9
Analysis ............ 11
Harm Analysis ............ 12
Point of Error 2, Restated ............ 15
The trial court reversibly erred by allowing the State to proceed on an amended indictment during trial over Appellant's objection.
Facts............ 15
Applicable Law............ 15
Analysis ............ 16
Point of Error 3, Restated............ 17
The trial court abused its discretion when it denied defense counsel's motion for a judgment of acquittal because the evidence is insufficient to support a conviction for felony DWI.
Facts............ 17
Standard of Review ............ 18
Analysis ............ 19
Point of Error 4, Restated ............ 20
The Court should reform the judgment to reflect a conviction for the lesser included offense of misdemeanor DWI.
Applicable Law............ 21
Analysis ............ 21
Point of Error 5, Restated ............ 22
The trial court's improper comment on the weight of the evidence in response to a jury note mandates reversal.
Facts ............ 23
Applicable Law............ 23
Analysis ............ 24
Harm Analysis ............ 26
Point of Error 6, Restated ............ 27
There is insufficient evidence in the record to support the trial court's assessment of $399 in court costs.PRAYER .............................................................................................................................. 30 CERTIFICATE OF SERVICE ............................................................................................ 30 CERTIFICATE OF COMPLIANCE ................................................................................... 31
INDEX OF AUTHORITIES
Cases
Aguilera v. State,
74 S.W.3d 60 (Tex. App.—San Antonio 2002, pet. ref'd) ............ 10
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985)............ 26, 27
Armstrong v. State,
340 S.W.3d 759 (Tex. Crim. App. 2011)............ 28
Barfield v. State,
63 S.W.3d 446 (Tex. Crim. App. 2001)............ 11
Bigley v. State,
865 S.W.2d 26 (Tex. Crim. App. 1993)............ 22
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.) ............ 19
Brown v. State,
843 S.W.2d 709 (Tex. App.—Dallas 1992, pet. ref'd) ............ 16
Daniell v. State,
848 S.W.2d 145 (Tex. Crim. App. 1993)............ 24
DeLeon v. State,
No. 05-09-00414-CR, 2011 Tex. App. LEXIS 30 (Tex. App.—Dallas January 5, 2011, pet. ref'd) (not designated for publication) ............ 26
Dukes v. State,
239 S.W.3d 444 (Tex. App.—Dallas 2007, pet. ref'd)............ 12
Espinoza v. State,
No. 05-09-01260-CR, 2010 Tex. App. LEXIS 4952 (Tex. App.—Dallas June 30, 2010, pet. ref'd) (not designated for publication)............ 13
Gamblin v. State,
476 S.W.2d 18 (Tex. Crim. App. 1972)............ 24
Head v. State,
299 S.W.3d 414 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd)............10
Hinojosa v. State,
875 S.W.2d 339 (Tex. App.—Corpus Christi 1994, no pet.) ............16
Hollins v. State,
No. 05-12-00835-CR, 2013 Tex. App. LEXIS 5038 (Tex. App.—Dallas April 23, 2013, no pet.) (not designated for publication)............24
Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007)............19
Jackson v. Virginia,
443 U.S. 307 (1979)............18
Johnson v. State,
389 S.W.3d 513 (Tex. App.—Houston [14th Dist.] 2012, pet. granted)............28, 29
Losada v. State,
721 S.W.2d 305 (Tex. Crim. App. 1986)............27
Lucio v. State,
353 S.W.3d 873 (Tex. Crim. App. 2011)............23, 24
Madden v. State,
799 S.W.2d 683 (Tex. Crim. App. 1990)............18
Mayer v. State,
309 S.W.3d 552 (Tex. Crim. App. 2010)............28
McIntosh v. State,
307 S.W.3d 360 (Tex. App.—San Antonio 2009, pet. ref'd)............16
Mizell v. State,
119 S.W.3d 804 (Tex. Crim. App. 2003)............22
Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005)............26
Padilla v. State,
278 S.W.3d 98 (Tex. App.—Texarkana 2009, pet. ref'd)............16
Pond v. State,
No. 05-98-01891-CR, 1999 Tex. App. LEXIS 9351 (Tex. App.—Dallas December 17, 1999, no pet.) (not designated for publication)............22
Reyes v. State,
394 S.W.3d 809 (Tex. App.—Amarillo 2013, no pet.)............21
Riney v. State,
28 S.W.3d 561 (Tex. Crim. App. 2000)............9, 10
Rodgers v. State,
No. 05-11-00407-CR, 2013 Tex. App. LEXIS 1741 (Tex. App.—Dallas February 21, 2013, no pet.) (not designated for publication)............18
Serna v. State,
69 S.W.3d 377 (Tex. App.—El Paso 2000, no pet.)............9, 12, 19
State v. Christensen, No. 05-10-00940-CR, 2011 Tex. App. LEXIS 4282 (Tex. App.—Dallas June 6, 2011, pet. ref'd) (not designated for publication)............19
Toliver v. State,
No. 05-11-00674-CR, 2012 Tex. App. LEXIS 6902 (Tex. App.—Dallas August 17, 2012, pet. ref'd) (not designated for publication)............10
Westfall v. State,
970 S.W.2d 590 (Tex. App.—Waco 1998, pet. ref'd)............16
Westmoreland v. State, 174 S.W.3d 282 (Tex. App.—Tyler 2005, pet. ref'd)............9, 10
Williams v. State,
937 S.W.2d 479 (Tex. Crim. App. 1996)............18
Statutes
TEX. CODE CRIM. PROC. art. 103.001............28 TEX. CODE CRIM. PROC. art. 21.19............12 TEX. CODE CRIM. PROC. art. 28.10............9, 12 TEX. CODE CRIM. PROC. art. 28.10(a)............15, 16 TEX. CODE CRIM. PROC. art. 28.10(b)............16 TEX. CODE CRIM. PROC. art. 28.11............9 TEX. CODE CRIM. PROC. art. 36.13............27 TEX. CODE CRIM. PROC. art. 36.14............24 TEX. CODE CRIM. PROC. art. 36.16............23 TEX. CODE CRIM. PROC. art. 38.04............27 TEX. CODE CRIM. PROC. art. 42.16............28 TEX. GOV'T CODE § 501.014(e)............29 TEX. PENAL CODE § 12.22............22, 27 TEX. PENAL CODE § 12.34............27 TEX. PENAL CODE § 12.42(d)............7 TEX. PENAL CODE § 49.04(b)............22, 27 TEX. PENAL CODE § 49.09(b)............19, 20, 27 TEX. PENAL CODE § 49.09(b)(2)............7, 25
Rules
TEX. R. APP. P. 44.2(b)............12
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellant, Maximo Martinez, and submits this brief on appeal from a conviction in Criminal District Court No. 7 of Dallas County, Texas, the Honorable Michael Snipes, judge presiding.
STATEMENT OF THE CASE
A grand jury indicted Appellant for driving while intoxicated. (CR: 12). The indictment alleged two prior misdemeanor convictions related to driving while intoxicated ("DWI") and two prior felony DWI convictions. (CR: 12). Appellant entered a plea of not guilty and proceeded to jury trial. (CR: 58; RR3: 6; RR5: 10). The jury found Appellant guilty and sentenced him to 35 years' imprisonment in the Texas Department of Criminal Justice. (CR: 45, 53, 54; RR5: 167; RR6: 52). The judge overruled Appellant's motion for new trial. (CR: 60). Appellant timely filed his notice of appeal. (CR: 59).
"RR6" refers to the reporter's record of the punishment hearing on June 19, 2012. This particular portion of the record does not contain a volume number
ISSUES PRESENTED
POINT OF ERROR 1
The State's failure to properly amend the indictment affected Appellant's
substantial rights.
POINT OF ERROR 2
The trial court reversibly erred by allowing the State to proceed on an amended
indictment during trial over Appellant's objection.
POINT OF ERROR 3
The trial court abused its discretion when it denied defense counsel's motion for a
judgment of acquittal because the evidence is insufficient to support a conviction
for felony driving while intoxicated.
POINT OF ERROR 4
The Court should reform the judgment to reflect a conviction for the lesser
included offense of misdemeanor DWI.
POINT OF ERROR 5
The trial court's improper comment on the weight of the evidence in response to a
jury note mandates reversal.
POINT OF ERROR 6
There is insufficient evidence in the record to support the trial court's assessment
of $399 in court costs.
STATEMENT OF FACTS
As Ron Pruett was driving on the night of February 25, 2011, he saw the car in front of him weave. (RR5: 19). Pruett observed the car drive over the center line of the two-way street. (RR5: 19). To make sure that the driver of the weaving car was in the "right state of mind" to be driving, Pruett followed the car. (RR5: 20). When he saw the car weave over the center line a second time, Pruett called 911 and provided a description of the car. (RR5: 22). He stayed on the phone with the 911 operator as he followed the car into a Taco Cabana parking lot. (RR5: 22). Pruett parked his car and walked over to the car he saw weaving on the street. (RR5: 22). He observed Appellant sitting in the driver's seat of the car and did not see anyone else in the car with Appellant. (RR5: 22). Pruett remained with Appellant's car until police officers arrived on the scene. (RR5: 22).
Craig Holman, an Irving police officer, was on patrol that night when he received a call about a possible intoxicated driver. (RR5: 30). He was the first officer to arrive at the Taco Cabana parking lot. (RR5: 31). He testified that he did not initially smell alcohol on Appellant and did not conduct any field sobriety tests. (RR5: 33). After the officers arrested Appellant and placed him in the back of the squad car, Holman smelled alcohol on Appellant. (RR5: 34).
After receiving information about a possible intoxicated driver the night of February 25, 2011, Irving police officer Thomas Hover arrived at the Taco Cabana parking lot. (RR5: 44-45). He saw Appellant sitting in the driver's seat. (RR5: 45-46). The keys were in the ignition, but the car was not running. (RR5: 46). Hover testified that when he spoke with Appellant he smelled alcohol. (RR5: 47). He observed that Appellant had red and bloodshot eyes. (RR5: 47).
Hover asked Appellant to step out of the vehicle, and he administered the horizontal gaze nystagmus ("HGN") test. (RR5: 48-49; State's Exhibit 1). Appellant exhibited six clues. (RR5: 55). Hover testified that he did not conduct the other two standard field sobriety tests, the walk and turn and the one-leg stand, because the National Highway Traffic Safety Administration has not administered these two tests in people over 65 years old or over 50 pounds overweight. (RR5: 55, 57). Appellant told Hover that he had two beers that night. (RR5: 58).
After running Appellant's criminal history, Hover knew that a mandatory blood draw was an option. (RR5: 61). Appellant refused to voluntarily provide a specimen. (RR5: 62). Hover took Appellant to Baylor Hospital where Daniel Dill, an ER technician, drew Appellant's blood. (RR5: 61-63, 90-97; State's Exhibit 7). Dill handed the vials of Appellant's blood to Hover who then transported the vials to Southwestern Institute of Forensic Sciences ("SWIFS") for testing. (RR5: 64, 95; State's Exhibit 6).
Erin Spargo, the deputy chief of forensic chemistry at SWIFS, testified that she tested Appellant's blood. (RR5: 98-107). Her testing demonstrated that Appellant's blood alcohol content was 0.18. (RR5: 107; State's Exhibit 8).
SUMMARY OF ARGUMENT
Issue 1: The State failed to properly amend the indictment. As a result, Appellant was not aware until after his trial commenced that the State intended to prove two entirely different prior convictions than those alleged in the indictment. This error affected Appellant's substantial rights because he did not have sufficient notice or an adequate opportunity to prepare an effective defense against the prior convictions alleged to enhance the offense to felony DWI.
Issue 2: If this Court concludes that the State properly amended the indictment, the judge improperly permitted the State to proceed on the amended indictment after the trial on the merits commenced and over Appellant's objection. This error affected Appellant's substantial rights and requires reversal.
Issue 3: The original indictment remained operable in Appellant's case because the State failed to properly amend the indictment in a timely fashion. The State did not present any evidence during the guilt/innocence phase of trial as to the two prior misdemeanor convictions alleged in the original indictment. Therefore, the State failed to prove an essential element of the felony DWI, and the evidence is insufficient to support the felony DWI conviction.
Issue 4: Even if this Court finds that the trial court did not abuse its discretion in denying Appellant's motion for a judgment of acquittal, this Court should reform the judgment to reflect a conviction for the lesser included offense of misdemeanor DWI. The State failed to prove during the guilt/innocence phase the existence of the two prior Dallas County misdemeanor DWI convictions alleged in the original indictment.
Issue 5: The judge's response to the jury's question regarding Appellant's prior convictions was an improper comment on the weight of the evidence. His additional instruction to the jury related to a contested factual matter in Appellant's case. This improper comment on the weight of the evidence constitutes reversible error.
Issue 6: The Court should delete the court costs from the judgment because the record in this cause does not contain a bill of costs as required by the Texas Code of Criminal Procedure.
ARGUMENT
POINT OF ERROR 1, RESTATED
The State's failure to properly amend the indictment affected Appellant's
substantial rights.
Facts
The original indictment filed on May 11, 2011, alleged that Appellant unlawfully operated a motor vehicle in a public place while intoxicated. (CR: 12). The indictment contained four additional paragraphs. (CR: 12). Two of these paragraphs alleged prior convictions from Dallas County for misdemeanor DWI offenses. (CR: 12). These two paragraphs jurisdictionally enhanced the offense to a third degree felony. TEX. PENAL CODE § 49.09(b)(2). The other two paragraphs alleged prior felony DWI convictions from Dallas County to enhance the punishment range to 25 to 99 years or life. (CR: 12); TEX. PENAL CODE § 12.42(d).
On February 21, 2012, the State filed a Motion to Amend the Indictment. (CR: 29-30). The motion requested that the trial court "allow the amending of the indictment" by deleting the two prior Dallas County misdemeanor DWI convictions alleged to establish felony jurisdiction and replacing these paragraphs with allegations of two prior DWI convictions from Travis County. (CR: 29). The motion reflects that the State served it by hand delivery to defense counsel. (CR: 30). The Order to Amend the Indictment at the end of the motion does not contain any information indicating that the trial court ruled on the State's motion to amend. (CR: 30).
Prior to voir dire, and outside the jury panel's presence, the State presented the indictment on the record. (RR3: 4-5). The prosecutor read the original May 11, 2011, indictment, including the two prior misdemeanor Dallas County convictions alleged as jurisdictional elements of the felony DWI charge. (RR3: 4-5). Appellant pleaded not guilty to the charge. (RR3: 6).
After voir dire, the judge administered the oath to the selected jurors and dismissed the remaining venire members. (RR4: 46-47). After providing instructions to the selected jury, the judge recessed the proceedings until the next day. (RR4: 46-56).
The next morning, and outside the jury's presence, the court held a hearing. (RR5: 6-8). Defense counsel, the prosecutor, and the judge discussed the State's Motion to Amend the Indictment. (RR5: 6-8). Although defense counsel objected, the trial court permitted the State to proceed on the indictment with the amended language rather than the original indictment. (RR5: 8-10).
It appears that the parties had a conversation at some point that morning prior to the court reporter's transcription of that day's court proceedings. Although the contents of this prior conversation are unknown, the context of the hearing clearly reflects that defense counsel objected to the State's amended indictment. Defense counsel explained that he did not have notice of the motion to amend the indictment. (RR5: 6). At the conclusion of this hearing, the judge stated, "This motion is denied." (RR5: 8). The exact type of motion is not clear from the record since the transcript appears to start after the parties began discussing said motion.
The judge instructed the prosecutor to "simply read the amended indictment. Don't read the first two as if it was done. We will have no more procedural chicanery in this court. I've had it." (RR5: 8). The judge subsequently brought the jury into the courtroom and requested that the prosecutor present the indictment and arraign the defendant. (RR5: 8-9). The prosecutor presented the indictment with the language set forth in the State's Motion to Amend the Indictment, which alleged the two prior Travis County convictions as elements of the charged offense. (RR5: 9-10). Appellant again pleaded not guilty. (RR5: 10). Applicable Law
The Texas Code of Criminal Procedure provides specific guidelines for amending an indictment in a criminal case. TEX. CODE CRIM. PROC. arts. 28.10, 28.11. The State bears the responsibility of properly amending an indictment. Serna v. State, 69 S.W.3d 377, 381 (Tex. App.—El Paso 2002, no pet.). While the Code of Criminal Procedure authorizes an amendment to the indictment, the State must have leave of the court to do so. TEX. CODE CRIM. PROC. art. 28.11. Physical interlineation on the original indictment is an effective method for amending an indictment, but it is not the only acceptable procedure. Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000). Appellate courts have accepted other methods of amending an indictment, but the State must still obtain the trial court's approval. Compare Westmoreland v. State, 174 S.W.3d 282, 285-87 (Tex. App.—Tyler 2005, pet. ref'd) (holding that the trial court's signed, written order granting the State's motion to amend the indictment was an effective amendment to the indictment because the order contained the language of the original indictment and the amending language) and Aguilera v. State, 74 S.W.3d 60, 64 (Tex. App.—San Antonio 2002, pet. ref'd) (holding that the trial court's written order granting the State's motion to amend was sufficient because the order included the language of the original indictment and the amendment) with Head v. State, 299 S.W.3d 414, 438 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd) (finding that because the trial court had not signed an order granting the State's motion to amend the indictment, the State's motion alone was insufficient to effectuate a valid amendment to the indictment); see also Toliver v. State, No. 05-11-00674-CR, 2012 Tex. App. LEXIS 6902, *20 (Tex. App.—Dallas August 17, 2012, pet. ref'd) (not designated for publication) (finding that the State's motion to amend, which contained the amended indictment language, coupled with the trial court's signed order granting this motion was sufficient to amend the indictment).
An indictment provides notice to a defendant of the charges against him so that he may prepare his defense against the charges in advance of trial. Riney, 28 S.W.3d at 565. Prior convictions used to enhance a misdemeanor DWI to a felony DWI are essential jurisdictional elements of the felony DWI that must be pleaded in the indictment and proven during the guilt/innocence phase of trial. Barfield v. State, 63 S.W.3d 446, 448 (Tex. Crim. App. 2001). Analysis
In Appellant's case, the record contains no proof that the trial court granted the State's Motion to Amend the Indictment. The record does not contain any written order granting the State's motion to amend or any notation that the trial court orally granted the State's motion. (CR: passim). The blanks in the Order to Amend the Indictment at the end of the State's motion remain blank, and there is no judge's signature on this order. (CR: 29-30). The trial court's docket sheets do not reflect any entries related to a hearing on the State's Motion to Amend the Indictment. (CR: 33-34, 58). The docket sheets do not indicate that the judge granted the State's motion. (CR: 33-34, 58). The original indictment contains no physical interlineation. (CR: 12). Finally, prior to voir dire, the prosecutor presented the original indictment, not the amended indictment, indicating the State's intent to proceed on the original indictment. (RR3: 4-5).
The State's motion alone did not effectively amend the indictment. The Code of Criminal Procedure explicitly requires leave of the trial court to amend the indictment. The State failed to obtain the trial court's permission to amend the indictment in Appellant's case. The judge did not sign an order granting the State's motion to amend the indictment. The trial court's docket sheets do not contain any notation indicating the court ruled on the State's motion to amend. While courts routinely find that a written order that includes the language of the requested amendment sufficiently amends the indictment, in Appellant's case, there is no written order from the judge that granted the State's Motion to Amend the Indictment. Consequently, the State did not properly amend the indictment, and the original indictment remained effective. See Serna, 69 S.W.3d at 38 (finding that the original indictment remained effective in the defendant's case because the State failed to properly amend the indictment). The trial court's instruction to the prosecutor to read the amended language in the indictment to the jury was not a proper order granting the State's motion to amend. Harm Analysis
Appellant recognizes that error related to Article 28.10 of the Texas Code of Criminal Procedure is not reversible unless the error affected Appellant's substantial rights. TEX. R. APP. P. 44.2(b); see also Dukes v. State, 239 S.W.3d 444, 447 (Tex. App.—Dallas 2007, pet. ref'd) (concluding that errors relating to the amendment of an indictment are subject to the harm analysis set forth in Rule 44.2(b) of the Texas Rules of Appellate Procedure). Indeed, the Texas Code of Criminal Procedure provides that a defect of form in an indictment does not render the indictment insufficient or affect the trial or judgment unless the defect affected the defendant's substantial rights. TEX. CODE CRIM. PROC. art. 21.19; see also Espinoza v. State, No. 05-09-01260-CR, 2010 Tex. App. LEXIS 4952, *21-22 (Tex. App.—Dallas June 30, 2010, pet. ref'd) (not designated for publication) (noting that a complaint that the indictment failed to provide adequate notice for a defendant to prepare his defense is an allegation that the indictment contains a defect in form and requires reversal if the defect prejudiced the defendant's substantial rights).
It was reasonable for Appellant to believe that the State intended to proceed on the original indictment in this case because there was no order granting the State's motion to amend and the prosecutor read the original indictment immediately prior to jury selection. The State's failure to properly amend the indictment affected Appellant's substantial rights and constitutes reversible error because he did not have adequate notice or an opportunity to prepare his defense to the Travis County prior convictions alleged as essential elements of the felony DWI charge.
Appellant anticipates that the State will argue that he had adequate notice of the Travis County prior convictions because several months prior to trial the State filed a motion to amend the indictment requesting that the indictment contain the Travis County DWI convictions rather than the Dallas County misdemeanor DWI convictions. However, Appellant was entitled to have notice of the actual charges the State intended to prove as jurisdictional enhancements. These enhancements were essential elements of the instant offense.
Appellant was likely aware that the State's proof of the Dallas County misdemeanor DWI convictions was minimal at best. The proof of the Dallas County prior convictions, as demonstrated during the punishment phase of trial, was simply computer printouts with limited information about the cases. (State's Exhibit 22). The "disposition" sections of the computer printouts contain abbreviations, the meanings of which the State did not explain. (RR6: 16; State's Exhibit 22). There were no judgments or other testimony to sufficiently prove that these computer printouts represented final prior convictions. As a result, the State would not have been able to prove these Dallas County prior convictions beyond a reasonable doubt. If the State did not prove these prior convictions beyond a reasonable doubt during the guilt/innocence phase, Appellant's conviction for felony DWI could not survive.
Appellant should have had adequate opportunity to prepare a defense to the Travis County priors. His defense against the certified judgments of the Travis County prior convictions would likely have been much different than his defense against the minimal computer printouts in the Dallas County prior convictions. He did not know until after the jury was impaneled that the State was proceeding on the amended indictment with the Travis County priors. Therefore, this Court cannot be certain that the substantive change to the indictment had no impact on Appellant's right to defend against the charges. Because the trial court's error affected Appellant's substantial rights, this Court should reverse this cause.
POINT OF ERROR 2, RESTATED
The trial court reversibly erred by allowing the State to proceed on an amended
indictment during trial over Appellant's objection.
Facts
On June 18, 2012, Appellant entered a plea of not guilty to the original indictment filed on May 11, 2011. (RR3: 4-6). Following voir dire, the judge swore in the jury. (RR4: 47). The next day, the judge permitted the State to proceed on an amended indictment that alleged the Travis County prior convictions as the jurisdictional enhancement paragraphs rather than the Dallas County prior misdemeanor convictions alleged in the original indictment. (RR5: 6-10). Defense counsel objected. (RR5: 6). The trial court allowed the State to proceed on the indictment with the amending language, i.e. the prior Travis County DWI convictions. (RR5: 6-10). Applicable Law
The State may amend an indictment any time before the date the trial on the merits commences and after providing notice to the defendant. TEX. CODE CRIM. PROC. art. 28.10(a). The trial court must give the defendant no less than 10 days to respond to the amended indictment. Id. The State may amend a matter of form or substance in an indictment on the date the trial commences if the defendant has no objection. TEX. CODE CRIM. PROC. art. 28.10(b). A trial court errs when it permits the State to amend the indictment after the trial begins and over the defendant's objection. McIntosh v. State, 307 S.W.3d 360, 365 (Tex. App.—San Antonio 2009, pet. ref'd); Brown v. State, 843 S.W.2d 709, 711 (Tex. App.—Dallas 1992, pet. ref'd). A trial commences when jeopardy attaches. Westfall v. State, 970 S.W.2d 590, 592 (Tex. App.—Waco 1998, pet. ref'd). In a jury trial, the trial on the merits commences when the jury is impaneled and sworn. Hinojosa v. State, 875 S.W.2d 339, 342 (Tex. App.—Corpus Christi 1994, no pet.); see also Padilla v. State, 278 S.W.3d 98, 102 (Tex. App.—Texarkana 2009, pet. ref'd) (finding that the trial court erred when it allowed the amendment of the indictment over the defendant's objection after the jury was impaneled and sworn). Analysis
If this Court concludes that the State properly amended the indictment, which Appellant does not concede, the trial court certainly did not rule on the State's motion to amend the indictment until after the jury was sworn. The record contains no written order or hearing transcript indicating the judge granted the State's motion to amend prior to the hearing on June 19, 2012. (CR: passim; RR5: 1). Even the State believed it was proceeding on the original indictment because the prosecutor presented the original indictment just before voir dire. If this Court views the trial court's denial of Appellant's objection/motion during the June 19, 2012, hearing as a proper order allowing the amendment, then the trial court erred in allowing the State to amend the indictment after the trial on the merits commenced. The hearing on the attempted amendment did not occur until the day after the jury was impaneled and sworn. Therefore, the trial court erred in allowing the State to proceed on the amended indictment over Appellant's objection and after jeopardy had attached.
POINT OF ERROR 3, RESTATED
The trial court abused its discretion when it denied defense counsel's motion for
a judgment of acquittal because the evidence is insufficient to support a
conviction for felony DWI.
Facts
During the guilt/innocence phase of trial, the State presented certified judgments from Travis County and other supporting documents reflecting that a person named Maximo Martinez with a birth date of May 18, 1939, had convictions for two offenses in Travis County related to driving while intoxicated. (RR5: 125-33; State's Exhibits 9, 10, 11, and 12). At the conclusion of the State's case-in-chief, defense counsel moved for a judgment of acquittal asserting that "[t]he State has not proved up the jurisdictional paragraphs." (RR5: 133). The court denied the motion. (RR5: 133). The jury charge for the guilt/innocence phase of trial contained the allegation that Appellant had two prior Travis County convictions related to driving while intoxicated, as set forth in the State's Motion to Amend the Indictment. (CR: 29, 40). Standard of Review
Courts review a challenge to a trial court's denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); see also Rodgers v. State, No. 05-11-00407-CR, 2013 Tex. App. LEXIS 1741, *3 (Tex. App.—Dallas February 21, 2013, no pet.) (not designated for publication) (relying on Williams for the proposition that review of a trial court's denial of a motion for directed verdict is treated as a challenge to the sufficiency of the evidence). A motion for directed verdict of acquittal is appropriate when there is no evidence or legally insufficient evidence to prove an essential element of an offense. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). A directed verdict is not proper if there is some evidence to support the essential elements of the offense. Id.
Appellate courts measure the legal sufficiency of the evidence by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, i.e., "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. 307, 319, n. 12 (1979). The Jackson standard is the only standard a reviewing court should apply to determine if the State proved each and every element of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). The reviewing court must defer to the fact finder's credibility and weight determinations since the trier of fact is the sole judge of the credibility of a witness's testimony. Id. at 899. The reviewing court "determine[s] whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Analysis
Because the State did not effectively amend the indictment in a timely manner, the original indictment remained operable during Appellant's trial. Serna, 69 S.W.3d at 38; see supra Points of Error 1 and 2, Restated. Therefore, the State retained the burden of proving beyond a reasonable doubt that Appellant had two prior Dallas County misdemeanor convictions, as alleged in the May 11, 2011, indictment. These prior convictions were essential elements of the felony DWI charge against Appellant. TEX. PENAL CODE § 49.09(b); see also State v. Christensen, No. 05-10-00940-CR, 2011 Tex. App. LEXIS 4282, *5 (Tex. App.— Dallas June 6, 2011, pet. ref'd) (not designated for publication) (recognizing that prior convictions are essential elements of a felony DWI under § 49.09(b) of the Texas Penal Code).
During the guilt/innocence phase of trial, the State presented no evidence of the prior Dallas County misdemeanor DWI convictions alleged in the original indictment that remained operable during Appellant's trial. The fact that the State may have proved the Travis County prior offenses is irrelevant. The Dallas County prior convictions alleged in the original, operable indictment were the only elements in the indictment that transformed a misdemeanor DWI into the felony DWI charge against Appellant. Consequently, the evidence is insufficient to establish felony DWI, and the trial court's denial of defense counsel's motion for judgment of acquittal constitutes an abuse of discretion. This Court should reverse the conviction and enter an order of acquittal in this cause.
POINT OF ERROR 4, RESTATED
The Court should reform the judgment to reflect a conviction for the lesser
included offense of misdemeanor DWI.
Should this Court determine that the State properly amended the indictment and presented enough evidence of the alleged prior convictions to survive Appellant's motion for a judgment of acquittal (see supra Points of Error 1, 2, and 3, Restated), the Court should still reform the judgment to reflect a conviction for the lesser included offense of misdemeanor because the amendment of the indictment was untimely and the original indictment remained effective. (See supra Point of Error 2, Restated.) The evidence of the Travis County prior DWI convictions was insufficient to support the conviction for felony DWI because the operable indictment alleged two prior Dallas County misdemeanor DWI convictions. Applicable Law
The State must prove prior convictions alleged as essential jurisdictional elements of a felony DWI. Reyes v. State, 394 S.W.3d 809, 811 (Tex. App.— Amarillo 2013, no pet.). The State must establish beyond a reasonable doubt that (1) the prior conviction exists, and (2) that the defendant is linked to that conviction. Id. Analysis
The State failed to prove that the prior convictions for the Dallas County DWI offenses alleged in the original indictment existed at all. Although the State presented evidence of two prior convictions linked to someone with Appellant's same name and birth date, the State failed to present any proof of the Dallas County misdemeanor DWI convictions during its case-in-chief. Therefore, the evidence is insufficient to support a conviction for felony DWI because the State failed to prove beyond a reasonable doubt the existence of the Dallas County prior convictions alleged in the operable original indictment. (see supra Point of Error 3, Restated). The Court should reform the judgment to reflect a conviction for the lesser included offense of misdemeanor DWI. Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); see also Pond v. State, No. 05-98-01891-CR, 1999 Tex. App. LEXIS 9351, *4-5 (Tex. App.—Dallas December 17, 1999, no pet.) (not designated for publication) (reforming the judgment to reflect a conviction for the lesser included offense of misdemeanor DWI because the State failed to prove beyond a reasonable doubt the two prior convictions alleged to enhance the offense to a felony DWI).
The punishment range for a misdemeanor DWI is 72 hours to 180 days in jail. TEX. PENAL CODE §§ 12.22, 49.04(b). Appellant's 35-year sentence exceeds the maximum term of imprisonment authorized for a misdemeanor DWI conviction. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (recognizing that a sentence "outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal."). This Court should reform the judgment to reflect a conviction for the lesser included offense of misdemeanor DWI and remand this cause for a new punishment hearing.
POINT OF ERROR 5, RESTATED
The trial court's improper comment on the weight of the evidence in response to
a jury note mandates reversal.
In the event that this Court finds that the State effectively and properly amended the indictment, which Appellant does not concede, the judge's response to the jury's question regarding the Travis County prior convictions constituted an improper comment on the weight of the evidence. This improper supplemental instruction lessened the State's burden of proof. Facts
During the guilt/innocence phase deliberations, the jury sent a note to the judge indicating that the jurors did not understand how the prior Travis County convictions occurred on the same day. (RR5: 160). The judge explained on the record that he "was concerned about that" and would suggest an instruction that the allegations are that the cases were disposed of on the same day, not that they occurred on the same day. (RR5: 161). Appellant objected to this suggested instruction and requested the following instruction: " 'You have all the evidence before you. Continue your deliberations.' " (RR5: 161). The judge denied Appellant's requested instruction. (RR5: 161). Applicable Law
Although the jury submitted several jury notes to the court during deliberations, the clerk's record does not contain any of these written jury notes. (CR: passim). The clerk's record does not contain any written responses to the jury notes. (CR: passim). The reporter's record reflects the judge's comments regarding various jury notes, including this note about the Travis County prior convictions. (RR5: 160-61).
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A trial court may respond to a jury's request for guidance during deliberations by providing additional instructions. Lucio v. State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011); TEX. CODE CRIM. PROC. art. 36.16. The court's additional instructions must follow the same rules that govern jury charges. Lucio, 353 S.W.3d at 875; TEX. CODE CRIM. PROC. art. 36.14. A judge's substantive response to a jury note constitutes an additional instruction. Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim. App. 1993). The trial court "must limit its answer to setting forth the law applicable to the case; it must not express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or use any response calculated to arouse the sympathy or excite the passions of the jury." Lucio, 353 S.W.3d at 875. The court may not give instructions regarding factual matters. Daniell, 848 S.W.2d at 147 (finding that Article 36.14 of the Texas Code of Criminal Procedure authorizes jury instructions on the applicable law and not as to factual matters). If the jury's request for additional instruction is not proper, the trial court should direct the jury to the charge rather than provide supplemental instructions. Gamblin v. State, 476 S.W.2d 18, 20 (Tex. Crim. App. 1972); see also Hollins v. State, No. 05-12-00835-CR, 2013 Tex. App. LEXIS 5038, * 9-10 (Tex. App.—Dallas April 23, 2013, no pet.) (not designated for publication) (noting that the trial court should reject the jury's improper request for additional instructions). Analysis
The judge's response to the jury's question during the guilt/innocence phase regarding Appellant's prior convictions constituted a comment on the weight of the evidence. The jury was unclear as to a factual issue related to the prior convictions. Specifically, the jury did not understand how the two prior convictions occurred on the same day, which indicates that the jury was not clear as to whether Appellant had one or two prior convictions.
The State had the burden of proving two prior convictions during the guilt/innocence phase of trial. The court's response provided additional instructions as to a factual matter in the case. The court's response assumed that the State met its burden of proof, i.e. that Appellant definitively had two separate prior convictions related to driving while intoxicated in Travis County. The State had the burden of proving these two prior convictions beyond a reasonable doubt in order to enhance the offense to a felony. TEX. PENAL CODE § 49.09(b)(2). These essential elements were contested matters in Appellant's trial. Defense counsel moved for a judgment of acquittal after the State's case-in-chief on grounds that the State did not prove these two prior convictions. (RR5: 133). Appellant disputed the number of prior convictions from Travis County and testified that he served "just one time." (RR5: 140).
The judge's response to the jury note effectively concluded that the State had established two prior convictions. Whether the State proved two prior convictions was a factual matter for the jury to determine. The judge's response was a substantive instruction about this factual matter. Consequently, the trial court's response constituted an improper comment on the weight of the evidence in the case. The jury charge contained the two prior conviction allegations, which reflected the offense information, and the trial court admitted the judgments for these two prior convictions during the State's case-in-chief. (CR: 40; RR5: 12631; State's Exhibits 10 and 11). The court should have instructed the jurors that they had all the evidence and referred them to the jury charge rather than providing a substantive response to the jury note. Harm Analysis
Because Appellant objected to the supplemental jury instruction, this Court should review the record for some harm to Appellant caused by the judge's erroneous instruction. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (noting that when a defendant objects to the erroneous jury charge, appellate courts review the error for "some harm" to the defendant's rights); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (concluding that if a timely objection to jury charge error was lodged, the error is reversible if it caused some harm to the defendant); DeLeon v. State, No. 05-09-00414-CR, 2011 Tex. App. LEXIS 30, *5-6 (Tex. App.—Dallas January 5, 2011, pet. ref'd) (not designated for publication) (applying the "some harm" standard from Almanza and Ngo to review the defendant's claim that the trial judge's substantive response to a jury question during deliberations was a comment on the weight of the evidence). Error that caused some harm to a defendant requires reversal. Almanza, 686 S.W.2d at 171. "Some harm" means that the error was calculated to injure the defendant's rights. Id.
Because the prior convictions were essential jurisdictional elements of the felony DWI charge, the judge's supplemental instruction reduced the State's burden of proving the two prior convictions beyond a reasonable doubt and invaded the province of the jury as fact finder. TEX. CODE CRIM. PROC. arts. 36.13, 38.04; Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986) (recognizing that resolution of conflicting evidence is the fact finder's job). Proof of the two prior convictions was absolutely necessary for determining whether Appellant committed a felony or a misdemeanor. The punishment ranges for felony DWI and misdemeanor DWI are substantially different. TEX. PENAL CODE §§ 12.22, 12.34, 49.04(b), 49.09(b). Therefore, because the offense and the applicable range of punishment hinged on whether the State proved the prior convictions beyond a reasonable doubt, Appellant suffered harm as a result of the judge's improper supplemental instruction to the jury. This Court should reverse the conviction and remand for a new trial.
POINT OF ERROR 6, RESTATED
There is insufficient evidence in the record to support the trial court's
assessment of $399 in court costs.
As part of the judgment in this case, the trial court ordered Appellant to pay court costs in the amount of $399. (CR: 54). However, the clerk's record filed in this case does not contain a bill of costs. As a result, the judgment should be reformed to delete the court costs reflected therein. Johnson v. State, 389 S.W.3d 513 (Tex. App.—Houston [14th Dist.] 2012, pet. granted).
The Texas Code of Criminal Procedure specifically provides that a "cost is not payable by the person charged with the cost until a written bill is produced or is ready to be produced, containing the items of cost, signed by the officer who charged the cost or the officer who is entitled to receive payment for the cost." TEX. CODE CRIM. PROC. art. 103.001. Costs so charged need not be included in the trial court's judgment to be effective because the obligation of a convicted person to pay court costs is established by statute, not by court order. Armstrong v. State, 340 S.W.3d 759, 766-67 (Tex. Crim. App. 2011). Yet, the Code of Criminal Procedure also mandates that judgments of conviction assess costs against the defendant. TEX. CODE CRIM. PROC. art. 42.16. Consequently, a claim of insufficient evidence to support court costs is reviewable on direct appeal in a criminal case. See Armstrong, 340 S.W.3d at 767. This is true even in the absence of an objection to the judgment. Johnson, 389 S.W.3d 513 (holding that the sufficiency of the evidence to support assessments of costs contained within judgments may be directly appealed without the necessity of having preserved the issue below); see also Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010) (holding that a sufficiency of the evidence claim regarding a judgment, even the assessment of attorney's fees as costs, need not be preserved and is not waived by the failure to object).
In the case at bar, the record contains no written bill of costs. (CR: passim). However, the judgment is formalized and could be acted upon in an attempt to collect the specified amount of $399. Johnson, 389 S.W.3d 513 (relying on TEX. GOV'T CODE § 501.014(e) which requires the Texas Department of Criminal Justice to withdraw from an inmate's account the amount ordered by a court as payment for court costs). Because there is no evidence in the record to support the trial court's assessment of $399 as court costs, the judgment should be reformed to delete the specific amount of costs.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court reverse the conviction and remand this cause to the trial court with instructions to enter and order of acquittal. In the alternative, Appellant prays that this Court remand this cause for a new trial. In the further alternative, Appellant prays that this Court delete the court costs from the judgment.
Respectfully submitted, Lynn Richardson
Chief Public Defender
Dallas County, Texas
Katherine A. Drew
Chief, Appellate Division
Dallas County Public Defender's Office
___________________
Julie Woods
Assistant Public Defender
State Bar No. 24046173
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-2
Dallas, Texas 75207-4399
(214) 653-3550 (phone)
(214) 653-3539 (fax)
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief was served on the Dallas County Criminal District Attorney's Office (Appellate Division), 133 N. Riverfront Blvd., 10th Floor, Dallas, Texas 75207, by hand delivery on August 29, 2013.
___________________
Julie Woods
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 7,721 words.
___________________
Julie Woods