Wright v. State

Full title: JAY QUINNARD WRIGHT, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 11, 2003

No. 05-02-00533-CR (Tex. App. Mar. 11, 2003)

Opinion

No. 05-02-00533-CR.

Opinion Filed March 11, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-01551-KV. AFFIRM.

Before Justices WRIGHT, O'NEILL, and FRANCIS.

OPINION

Opinion By Justice FRANCIS.

Jay Quinnard Wright appeals his conviction for unlawful possession of a firearm by a felon. In three issues, he complains the trial court (1) made an improper comment during voir dire and (2) failed to admit evidence or instruct the jury on his defenses of mistake of law and mistake of fact. In a fourth issue, he contends article 42.12, section 20 of the Texas Code of Criminal Procedure is unconstitutional. We affirm the trial court's judgment. Police attempted to stop a pickup truck that ran a red light. The truck was driven by appellant; Eugene Burney was a passenger. Appellant pulled into an apartment complex parking lot, got out of the truck, and ran from police. One officer testified that during the chase, appellant took cover behind a car, pulled a gun from his waistband, and fired. The officer radioed other officers that shots had been fired. The officer continued to chase appellant and saw him collapse. Appellant had accidentally shot himself in the left thigh and hand when he drew his gun. The gun was found in a nearby shrub. Police charged appellant with the offense of unlawful possession of a firearm by a felon. The indictment alleged appellant had a previous felony conviction for delivery of a controlled substance. In his first issue, appellant complains the trial court erred in "instructing the array of prospective jurors during voir dire that they were not permitted to state that they would convict the defendant in this case based on the knowledge that he had been previously convicted." During voir dire, defense counsel questioned prospective jurors on whether they would be affected by the allegation that appellant had a felony conviction and whether they would believe, in light of that previous felony conviction, that appellant had "probably done something wrong and probably [needed] to be punished." Three jurors indicated they might be affected by the allegation. At that point, the trial judge intervened to determine whether the jurors were saying they would convict appellant because of his past. The judge explained the law did not allow them to "convict somebody now for something they did in the past that's unrelated to this case or a case." Some jurors expressed confusion about how they were to use the prior felony conviction, which led to the following:

[PROSPECTIVE JUROR]: Why do you keep bringing the past up in there? We don't even know nothing about [the] past. So how can you judge somebody if you already don't know about your past. You know, what we're looking at right now, what he's got —

[DEFENSE COUNSEL]: What did he do this time?

[PROSPECTIVE JUROR]: So what the past is, let that come out. But don't bring the past up here. People's already say, hey, if he already did something early, then you can't judge nobody from a past.

[TRIAL JUDGE]: That's how it should be. You should not judge anybody from the past.

[PROSPECTIVE JUROR]: But what we —

[TRIAL JUDGE]: But that's part of the offense. Hang on, hang on. That's part of the offense. They have to prove that there was a prior conviction. Okay? If there wasn't a prior conviction it wouldn't be an offense, at least in this court.

[PROSPECTIVE JUROR]: I think that's the part that's kind of confusing me. I don't know about anyone else. We're not supposed to use that, which I don't have a problem with being fair about that, but then it keeps —

[TRIAL JUDGE]: You can use it. You just can't say because you were convicted before I'm going to convict you now. You can't just say because you did something bad in your past I'm going to automatically convict you now. That's not fair.

[DEFENSE COUNSEL]: Your Honor, respectfully, you can say that. You can say that. It's okay to say that.

[TRIAL JUDGE]: No, no, you're wrong. Don't interrupt me.

[DEFENSE COUNSEL]: I apologize, Your Honor.

[TRIAL JUDGE]: Don't do that again. You'll regret it. All right? What I'm saying is, to be fair and honest and to follow the law, you can not convict somebody on something they did in the past. Now a part of this offense is something that he did in the past, but that, just `cause he was convicted in the past doesn't mean he committed this offense. . . .

Appellant argues the trial judge erred in making the highlighted comment. In particular, he contends the remark "directly prohibited jurors from speaking their honest feelings in a manner that would have allowed [a]ppellant to discover any bias they may have had." He argues the remark violated his right to a fair trial and due process. First, we question whether appellant's disagreement with the trial court's comment can even be characterized as an objection. At no point did appellant ever suggest that the remark violated his constitutional rights. Regardless, reading the comment in the context of the issue then being discussed in voir dire, it is clear the judge was not prohibiting the jurors from expressing their honest beliefs; rather, the judge was explaining that the law did not allow them to use the prior conviction to automatically convict appellant of the instant charge. Consequently, we conclude the trial judge's comments were not error. We reject the first issue. In his second and third issues, appellant contends the trial court erred in refusing his request for jury instructions on his defenses of mistake of law and mistake of fact. He also asserts, without argument, that the court excluded evidence relevant to these defenses. To be entitled to a mistake of law defense instruction, the defendant must establish (1) he reasonably believed his conduct did not constitute a crime and (2) he reasonably relied upon either an administrative order or written interpretation of law contained in an opinion of record. See Green v. State, 829 S.W.2d 222, 223 (Tex.Crim.App. 1992); Tex. Pen. Code Ann. § 8.03(b) (Vernon 1994). Appellant argues there is evidence that he relied on an order executed by the 363rd Judicial District Court discharging him from probation and restoring his civil rights. Apparently, his contention is that, in light of this order, he did not know he could not possess a firearm. First, the order discharging appellant from probation is not an official statement of the law by an administrative agency or an interpretation of the law found in a court opinion. It is an order of the trial court. But even if we assumed the order constituted a "written interpretation of law," the evidence does not show appellant reasonably believed his conduct did not constitute a crime. At trial, appellant testified that once he was discharged from probation, he knew he still "had the felony on [his] back." Moreover, he testified he knew he was not supposed to be "around" a gun and when the police began following him and his friend, he fled on foot to get rid of the gun:

. . . .I said, man, you going to have to get out and run with the gun, Eugene. You got to get out and run with this gun. I said, man, I'm not even supposed to have this gun around me.

And so Eugene was like, man, I can't run. I got this big suit on, man, I can't run. I'm like man, man. We just — I'm steady back and forth man, man. I said, man, just give the gun to me and I just run with it, man, just give it to me. I just need to get this gun away from me.

And that's just how that was, how the foot chase started.

Appellant said it was his plan to dispose of the gun and "take evading arrest from the officers." Because the evidence establishes that appellant knew he was a felon and knew he could not possess a gun, he could not have reasonably believed his conduct did not constitute a crime. Accordingly, he was not entitled to a mistake of law instruction. Moreover, appellant was not entitled to a mistake of fact instruction. To be entitled to a mistake of fact instruction, the evidence must raise an issue as to whether the defendant mistakenly formed a reasonable belief about a matter of fact that would negate the kind of culpability required for the commission of the offense. See Tex. Pen. Code Ann. § 8.02(a) (Vernon 1994). The statutory term "kind of culpability" means a "culpable mental state." Beggs v. State, 597 S.W.2d 375, 378 (Tex.Crim.App. [Panel Op.] 1980). Again, appellant argues he did not know his legal status as a felon prevented him from possessing a firearm. Assuming mistake of fact would even apply, we reject his argument for the same reason outlined above. Finally, appellant asserts the trial court erred in excluding evidence relevant to these issues. However, appellant has not presented any argument on this issue; therefore, the complaint is waived. See Tex. R. App. P. 38.1(h). We resolve the second and third issues against appellant. In his fourth issue, appellant argues the "trial court erred in denying [him] the right to due process of law and equal protection of the law in relation to the application" of article 42.12(b) of the Texas Code of Criminal Procedure to him. In particular, he complains that because he was convicted of a state jail felony, he cannot have his civil rights restored, while someone convicted of "a more serious felony" can. To preserve for appellate review an attack on the constitutionality of a statute as applied to him, appellant must have first raised the issue in the trial court. Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995); Sullivan v. State, 986 S.W.2d 708, 711 (Tex.App.-Dallas 1999, no pet.). Appellant did not raise this issue in the trial court either by objection or motion for new trial. Accordingly, we conclude he has waived the issue of whether the statute is unconstitutional as applied to him. To the extent appellant's issue can be read to raise a facial validity challenge, we conclude it is inadequately briefed. See Wood v. State, 18 S.W.3d 642, 650 (Tex.Crim.App. 2000) (concluding appellant waived facial validity challenge to penal code provision by failing to support his argument with authority and failing to adequately develop his argument). We resolve the fourth issue against appellant. We affirm the trial court's judgment.