Opinion
01-23-00249-CR
06-25-2024
COLBIN JOHN WRIGHT, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 77th District Court Limestone County, Texas Trial Court Case No. 15490-A
Panel consists of Goodman, Landau, and Hightower Justices.
OPINION
Richard Hightower, Justice.
Appellant Colbin John Wright was indicted under two different cause numbers for the offenses of theft and evading arrest with a motor vehicle. The cases were consolidated, and a jury convicted him of both offenses. The offenses were enhanced with previous convictions. The jury assessed his punishment for the theft offense at 15 years' confinement and a fine of $5,649 and at 99 years' confinement for the evading arrest offense, with the sentences to run concurrently. In his sole appellate issue, Wright argues that the indictment in the theft case was never legally amended to include the allegation of evading arrest with a motor vehicle and, therefore, the conviction for evading arrest is void. However, the record contains both the grand jury's original indictment for evading arrest with a motor vehicle plus a valid order consolidating the two cases. We affirm.
Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Tenth Court of Appeals to this Court. See Tex. Gov't Code § 73.001 (authorizing transfer cases). We are unaware of any conflict between its precedent and ours. See Tex. R. App. P. 41.3.
Background
Police in Limestone County observed Wright driving a pickup truck that had been reported stolen by a rental car company in Houston. Wright pulled over briefly for a traffic stop but then fled in the vehicle with police pursuing him. The police found the truck abandoned in a neighboring county, but eventually they saw Wright on a stolen riding lawnmower. When he was arrested, Wright had the keys to the stolen truck on his person.
Appellant was indicted in cause number 15490-A on three counts related to the above facts: (1) evading arrest with a prior conviction; (2) theft; and (3) unauthorized use of a motor vehicle. The indictment alleged that on or about December 3, 2021, Wright "intentionally fle[d] from [S.] Rousey, a person the defendant knew was a peace officer who was attempting lawfully to arrest or detain [him]"; he "unlawfully appropriate[d], by acquiring or otherwise exercising control over, property, to-wit: a lawnmower, of the value of $2500 or more but less than $30000 from [the owner] thereof, without the effective consent of the owner and with intent to deprive the owner of the property"; and he "intentionally or knowingly operate[d] a motor-propelled vehicle, to-wit: a lawnmower, without the effective consent of [the owner]." The indictment also identified two previous felony convictions that enhanced the state-jail felonies to second-degree felonies. The State later moved to amend the indictment to correct errors in the enhancement paragraphs, and the trial court granted the motion and allowed the amendment.
Wright was subsequently indicted in cause number 15680-A for evading arrest with a vehicle, again detailing an incident occurring on December 3, 2021 and alleging that Wright, "while using a vehicle, intentionally fle[d] from [J.] Fitch, a person the defendant knew was a peace officer who was attempting lawfully to arrest or detain [him]." This indictment also contained enhancement paragraphs, elevating the offense to a first-degree felony.
This indictment is contained in a supplemental clerk's record in cause number 15490-A (the consolidated case). The State requested the supplemental record following the filing of Wright's brief, noting that the grand jury indictment for evading arrest with a motor vehicle had been omitted from the original clerk's record.
The State then moved to consolidate cause number 15680-A-based on the indictment for evading arrest with a vehicle-with cause number 15490-A. The motion asserted that the four pending charges all arose out of the same criminal episode and that it would be more efficient for the trial court to consider them under the same cause number. At the status hearing during which the trial court considered the motion to consolidate, defense counsel acknowledged that he had received a copy of the indictment filed in cause number 15680-A, and he confirmed that Wright had been served with the indictment. Wright waived the formal reading of the 15680-A indictment and pled not guilty to the evading arrest charge. Defense counsel further stated on the record that he had no objection to the State's motion to consolidate cause numbers 15490-A and 15680-A, observing that the "allegations are all out of the same criminal episode." The trial court granted the motion to consolidate, ordering that cause numbers 15490-A and 15680-A be tried together under cause number 15490-A.
The State subsequently moved to "renumber the counts in the indictment in this cause due to the State abandoning Counts I [evading arrest or detention with a prior conviction] and III [unauthorized use of a motor vehicle] and proceeding to trial on Counts II [theft of property valued at more the $2,500 but less than $30,000] and IV [evading arrest or detention with a motor vehicle]." The State asserted in its motion that it intended to abandon the charges for evading arrest or detention with a prior conviction and for unauthorized use of a motor vehicle. The motion then stated, "Accordingly, the indictment would read as follows. . . ." It then set out the language for an amended indictment for the charges of theft and evading arrest with a motor vehicle, plus the enhancement allegations. The trial court granted this motion, signing an order providing: "[I]t is hereby ORDERED that the indictment pending in this cause be renumbered to read as follows. . . ." The court's order set out the amended language for the indictment for the charges of theft and evading arrest in a motor vehicle.
The case proceeded to trial before a jury on the charges of theft and evading arrest with a motor vehicle. The jury found Wright guilty on both counts. It assessed Wright's punishment for the theft offense at 15 years' confinement and a fine and 99 years' confinement for the offense of evading arrest with a motor vehicle.
Indictment for Evading Arrest with a Vehicle
In his sole appellate issue, Wright argues that his conviction for evading arrest is void because the indictment in the theft case, originally filed in cause number 15490-A, was never legally amended to include the allegation of evading arrest with a motor vehicle that was originally filed in cause number 15680-A. We disagree with Wright.
"The presentment of a valid indictment vests the district court with jurisdiction of the cause." Jenkins v. State, 592 S.W.3d 894, 898 (Tex. Crim. App. 2018) (holding that criminal jurisdiction over person requires filing of valid indictment or information); see also Tex. Const. art. V, § 12(b) ("The presentment of an indictment or information to a court invests the court with jurisdiction of the cause."). "To meet the definition of indictment under article V, section 12(b) of the Texas Constitution and to vest the court with both personal and subject matter jurisdiction, the indictment must (1) charge a person, and it must (2) charge the commission of an offense." Jenkins, 592 S.W.3d at 898; see also Teal v. State, 230 S.W.3d 172, 179 (Tex. Crim. App. 2007) (for indictment to be constitutionally valid, and thus confer jurisdiction on trial court, it need only allege that person committed offense); Duron v. State, 956 S.W.2d 547, 550 (Tex. Crim. App. 1997) (holding that in order for defect in charging instrument to "render the instrument a non-indictment," defect must "make it impossible for the defendant to know with what offense he had been charged").
Here, the record reflects an indictment that both charges a person- Wright-and charges the commission of the offense of evading arrest with a motor vehicle. See Jenkins, 592 S.W.3d at 898. The grand jury indictment alleging that Wright committed the offense of evading arrest with a motor vehicle was originally filed in cause number 15680-A. The record from the status hearing following the filing of this indictment demonstrates that Wright and his trial counsel both received this indictment, and Wright waived the formal reading of the indictment when he pleaded not guilty. He does not argue that he was not aware of the evading arrest charge pending against him. See id. (holding that proper test for validity of indictment is whether face of instrument is clear enough to give appellant adequate notice of the charge against him); Duron, 956 S.W.2d at 550 (holding that to "render the instrument a non-indictment," defect must "make it impossible for the defendant to know with what offense he had been charged"). Thus, the trial court obtained jurisdiction over Wright for the alleged offense of evading with a motor vehicle. See Jenkins, 592 S.W.3d at 898 . The trial court subsequently consolidated cause number 15680-A with the previously filed cause number 15490-A. Defense counsel affirmatively stated that he did not object to the consolidation.
In his brief, Wright acknowledges that a grand jury indicted him for evading arrest with a motor vehicle, but he appears to argue that was invalid to support his conviction because it was filed "in another cause number." Wright argues that "the State wholly failed to amend and incorporate the allegation of evading arrest with a motor vehicle "into the instant case," pointing out, "The trial court granted the State its request to 'renumber the counts in the indictment,' but the purported 'count four'-Evading in a Motor Vehicle-was never properly amended into the instant indictment." However, Wright points to no authority requiring that both counts be contained in a single charging instrument filed after consolidation into cause number 15490-A.
To the contrary, Texas law allows multiple pending indictments against a single defendant to be consolidated in a single trial with the consent of the defendant. See Tex. Penal Code § 3.02 (providing that "[a] defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode" and that "[w]hen a single criminal action is based on more than one charging instrument within the jurisdiction of the trial court, the state shall file written notice of the action not less than 30 days prior to the trial"); Garza v. State, 687 S.W.2d 325, 330 (Tex. Crim. App. 1985) (holding that multiple pending indictments against defendant "may be consolidated in a single trial with the consent or absent an objection by and with the implied consent of the defendant"); see also Resendiz v. State, No. 13-22-00160-CR, 2023 WL 5624091, at *1 n.4 (Tex. App.-Corpus Christi-Edinburg Aug. 31, 2023, pet. ref'd) (mem. op., not designated for publication) (noting that multiple pending indictments against defendant may be consolidated in single trial). Here, the trial court signed an order consolidating cause number 15680-A and 15490-A into a single cause without any objection by Wright.
To the extent that Wright is arguing there is some other substantive defect in the indictment for evading arrest with a motor vehicle, we conclude that he failed to preserve any such complaint. As discussed above, the record here contains a valid indictment for the evading arrest charge sufficient to vest the trial court with jurisdiction and provide adequate notice to Wright of the charge against him. See Jenkins, 592 S.W.3d at 898, 901 (holding that even indictment with substantive defect can still vest trial court with jurisdiction). Wright did not object or otherwise challenge the indictment at any stage of the litigation-from the time it was filed in cause number 15680-A and later trial-court actions including consolidating the charges into a single cause number, granting the State's motion to "renumber" the charges in the indictments, and completing the trial before the jury on both the theft and evading arrest charges. "If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences," that defendant "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." Jenkins, 592 S.W.3d at 902; see also Teal, 230 S.W.3d at 177 & n. 24 ("Texas law now requires the defendant to object to any error in the indictment before the day of trial and certainly before the jury is empaneled."). Because Wright did not make any objection regarding a defect, error, or irregularity of form or substance in the indictment before the commencement of the trial on the merits, he cannot now raise such an objection on appeal.
We overrule Wright's sole appellate issue.
Conclusion
We affirm the judgment of the trial court.
CONCURRING OPINION
Gordon Goodman, Justice.
Introduction
After the jury found Colbin John Wright guilty of the third-degree felony offense of evading arrest in a motor vehicle and the state jail felony offense of theft, it assessed his punishment at 99 years of imprisonment. In the usual case, the more serious of the two crimes, the third-degree felony, is punishable by 10 years in prison at most. However, this is not the usual case.
Here, the prosecution alleged that Wright had previously been convicted of two other felonies: aggravated assault and possession of a controlled substance. Wright pleaded true to these allegations, which made him a habitual offender. As a habitual offender, the range of punishment for the third-degree felony was increased. The minimum punishment was now 25 years and the maximum 99 years or life.
After hearing the evidence on punishment, the jury assessed 99 years. The trial court rendered judgment consistent with the jury's verdict, and we affirm.
Under existing law, our court reaches the only result it can in this case. Any ostensible error that arguably could have supported reversal was neither preserved below nor raised on appeal. Nonetheless, I cannot in good conscience silently affirm the severe and disproportionate punishment imposed by the jury in this case, which could only have resulted from evidence the jury should not have heard, because this kind of punishment undermines the legitimacy of our criminal-justice system.
Discussion
Simone Weil, a French philosopher, once observed that "everything connected with the penal law should wear a solemn and consecrated aspect," such that "the majesty of the law should make its presence felt by the court, the police, the accused, the guilty man-even when the case dealt with is of minor importance, provided it entails a possible loss of liberty." Simone Weil, The Need for Roots: Prelude to a Declaration of Duties Towards Mankind 21 (Arthur Wills trans., Routledge Classics 2002) (1949). Weil elaborated that punishments disproportionate to the crime are incompatible with genuine justice, and therefore beneath the majesty of the law, noting by way of illustration that a "scale of penalties which provides a much harsher punishment for ten acts of petty larceny than for one rape or certain types of murder" deprives a criminal-justice system of "anything that deserves the name of punishment." Id. When a punishment is unjust for this or other reasons, it is not truly punishment worthy of a criminal-justice system. See id. at 22 (arguing that genuine punishment only occurs when the hardship it visits on a wrongdoer is accompanied "by a feeling of justice"); see also Gordon Goodman, The Ethics of Punishment, In Chambers: The Official Publication of the Texas Center for the Judiciary, Summer 2019, at 13-14 (discussing Weil's philosophical views on punishment).
Though Weil's articulation of these ideas may be unfamiliar to American lawyers and judges, the ideas themselves are not.
It is a maxim of our criminal law that the punishment should fit the crime See Grunsfeld v State, 843 S.W.3d 521, 544 (Tex Crim App 1992) (Clinton, J, concurring) (characterizing principle that "the punishment should fit the crime" as a "self-evident maxim"). By prescribing a range of punishment for crimes, rather than a fixed punishment applicable in all cases, the Legislature has "made it the jury's job to assess the specific facts and circumstances of each case and determine where on the punishment scale the specific criminal act fits." Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998).
Under our law, it is equally axiomatic that the punishment should fit the criminal. See Grunsfeld, 843 S.W.3d at 544 (Clinton, J., concurring) (observing "courts have traditionally believed that the punishment should fit the criminal as well"). One expression of this axiom is the habitual-offender statute, which provides that the range of punishment for a felony, other than a state jail felony, shall be life or a term of not more than 99 years or less than 25 years when a defendant has already been finally convicted of two other felonies. Tex. Penal Code § 12.42(d).
I have no quarrel with these general principles. But as this case illustrates, their application by juries in some cases can result in excessive punishment.
Like virtually any defendant who qualifies as a habitual offender, Wright is not a sympathetic defendant. The jury found Wright guilty of evading arrest in a motor vehicle and theft. He first led police on a high-speed chase. After abandoning the motor vehicle in which he had initially fled, Wright then stole a riding lawnmower in a continued but fruitless effort to escape from law-enforcement officers. During the punishment phase of trial, he pleaded true to the enhancement allegations that he had previously been convicted of two other felonies: an aggravated assault and possession of a controlled substance, methamphetamine.
Consequently, the minimum punishment Wright was eligible to receive with respect to the evasion offense was 25 years of imprisonment. Id.
The jury assessed Wright's punishment at 99 years. Given the evidence at trial, it is not necessarily surprising that the jury did not opt for the minimum. As his own trial counsel acknowledged at the outset of the punishment phase, the jury was "not going to hear anything good about" Wright during this phase of the trial.
Nevertheless, the jury's imposition of a sentence of 99 years stands out like a sore thumb. Neither of the two crimes the jury found Wright guilty of committing are crimes of violence. Of the two prior felonies that served as the basis for the enhancement allegations, only one was a violent crime, the aggravated assault. That conviction resulted from a prior episode in which Wright fled from the police in a motor vehicle and attempted to force a police vehicle off the road by ramming it. Dangerous as that conduct may be, it is less egregious than many violent crimes.
Other habitual offenders receive sentences far less severe under circumstances more egregious than the ones the jury confronted in this case. For example, in Henry v. State, a jury found the defendant guilty of the offense of evading arrest in a motor vehicle and using the vehicle as a deadly weapon. 509 S.W.3d 915, 916 (Tex. Crim. App. 2016). The jury also found the enhancement allegations regarding two prior violent felony convictions, one for aggravated assault and another for aggravated robbery, to be true. Id. at 916-17. Even though the defendant was a habitual offender with convictions for violent crimes, the jury sentenced him to just 60 years. Id.
Similarly, in Lomax v. State, a jury found the defendant guilty of the offense of felony murder based on the death of a five-year-old girl, who died in an automobile accident the defendant caused by his drunken and reckless driving. 233 S.W.3d 302, 303 (Tex. Crim. App. 2007). Based on two unspecified prior felony convictions, the jury sentenced the defendant as a habitual offender. Id. Even though the defendant killed a small child, the jury sentenced him to just 55 years. Id.
In the same vein, in Miller v. State, a jury found the defendant guilty of three offenses: evading arrest in a motor vehicle, unlawful possession of a firearm, and unlawful possession of body armor. 605 S.W.3d 877, 880 (Tex. App.-Houston [1st Dist.] 2020, pet. ref'd). The defendant led police on a high-speed chase in a vehicle he apparently stole at gunpoint. Id. at 880-81. It was unlawful for him to possess a firearm or body armor because he was a felon. Id. at 879. He pleaded true to the allegation that he was a habitual offender, and one of his prior felony convictions was for the assault of a family or household member. Id. at 880, 882. These facts notwithstanding, the jury sentenced him to just 30 years. Id. at 882.
I concede that no two criminal cases are exactly alike. Like unhappy families, each criminal case is unhappy in its own way. Punishment is necessarily a fact-bound determination, and the broad ranges of punishment in the Penal Code are intended to allow juries to tailor the punishment to the circumstances of each case. Sadler, 977 S.W.2d at 142-43. But a criminal-justice system in which Wright receives approximately four decades more punishment than either of the defendants in Henry and Lomax, and almost seven decades more punishment than the defendant in Miller, is so arbitrary and capricious that it calls the system's credibility into doubt.
In general, our system presumes punishments for habitual offenders at or near the statutory maximum are reserved for situations in which the evidence shows the defendant is especially incorrigible, unusually dangerous, or both. See, e.g., Drichas v. State, 175 S.W.3d 795, 796-97 (Tex. Crim. App. 2005) (jury found defendant guilty of evading arrest in a motor vehicle, which he used as a deadly weapon, and sentenced him to 99 years as a habitual offender with fourteen prior felony convictions); Jones v. State, 338 S.W.3d 725, 729-30 (Tex. App.-Houston [1st Dist.] 2011) (jury found defendant guilty of possession of a firearm by a felon and two drug-dealing offenses involving intent to deliver cocaine and ecstasy, and sentenced him to 99 years as a habitual offender with prior convictions for aggravated assault and arson), aff'd, 364 S.W.3d 854 (Tex. Crim. App. 2011).
While Wright is a habitual offender, and thus qualifies for a sentence somewhere between 25 years and 99 years or life, he hardly ranks among the worst. So, one must ask, why did the jury in this case throw the proverbial book at him?
The answer: during the punishment phase of trial, the jury heard two types of especially damning evidence it certainly should not have heard. Specifically, the jury heard conclusory testimony that Wright is a member of a violent white-supremacist criminal gang and testimony implicating him in the murder of his own sister.
Some standards that might otherwise restrict the admissibility of evidence are relaxed to a significant degree during the punishment phase of a criminal trial. In particular, character evidence and evidence of extraneous crimes and bad acts, regardless of whether they resulted in a charge or conviction, are admissible. Tex. Code Crim. Proc. art. 37.07, § 3(a)(1). The lone restriction safeguarding a trial from unreliable evidence of this sort is that the extraneous crimes or bad acts must be proved beyond a reasonable doubt. Id. In this case, the restriction was thwarted.
Let's begin with the murder. A. Lowrie, who was a lieutenant with the Polk County Sheriff's Department, testified about this extraneous crime. In 2013, a warrant was issued for Wright's arrest in connection with the alleged aggravated assault of Wright's girlfriend. Based on this warrant, Lowrie and other law-enforcement officers attempted to take Wright into custody. While testifying about their efforts to take him into custody and the vehicular pursuit that ensued when he tried to flee, Lowrie additionally testified, without objection, that Wright was also a "suspect in a homicide investigation" concerning the murder of his sister, who was shot twice in the head. This testimony was not inadvertent. Lowrie did not disclose this information unsolicited. The prosecution intentionally introduced this evidence before the jury, asking Lowrie whether Wright was "also a suspect in a homicide investigation" after Lowrie had already testified about the unrelated warrant.
However, the prosecution did not offer any evidence connecting Wright to this murder beyond the bare indication of suspicion. Indeed, the prosecution made no attempt to prove a connection. On the contrary, during its closing argument, the prosecution conceded it had not connected Wright to the murder beyond a reasonable doubt. As such, this extraneous crime was categorically inadmissible. See Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005) (holding article 37.07, § 3(a) requires jury to be "satisfied beyond a reasonable doubt that the acts are attributable to the defendant" before the acts can be considered for purposes of punishment).
Perhaps, in another situation, a belated acknowledgement by the prosecution that it had failed to prove an extraneous offense beyond a reasonable doubt might mitigate the harm. But the intentional injection of an unproved murder during the punishment phase in a trial for non-violent felonies places a skunk in the jury box that the jury cannot unsmell. See Walker v. State, 610 S.W.2d 481, 483-84 & n.6 (Tex. Crim. App. [Panel Op.] 1980) (reversing 99-year sentence in murder prosecution due to injection of inadmissible, inflammatory evidence of extraneous crime and noting that jury cannot be successfully instructed not to smell a skunk).
Then there is the gang evidence. Two witnesses testified about Wright's gang membership. Once again, the defense did not object to the testimony of either witness.
First, Deputy R. Martel of the Liberty County Sheriff's Office testified Wright is identified as a registered member of the Aryan Brotherhood in a state database called TX Gang. Martel described the Brotherhood as "a white pride, white national group that is really big in a lot of the prison systems" and that is involved in "a lot of violent crime and drug trafficking" outside of the prison systems. Common tattoos associated with Aryan Brotherhood membership include Nazi swastikas, SS emblems, and Hitler portraits. According to Martel, SS emblems in particular indicate "somebody that's really, really embedded into that kind of gang activity."
Video evidence admitted during the guilt-innocence phase of trial showed that Wright, who is heavily tattooed, has a large swastika tattoo on or around the left side of his torso. After eliciting the testimony about Aryan Brotherhood tattoos, the prosecution asked, "So if he has a large swastika on his rib cage that would be consistent with somebody in the Aryan Brotherhood?" Martel replied, "Yes, or any other of the-the white gangs." But the prosecution did not solicit any testimony from Martel explaining how he knew about the Aryan Brotherhood or its reputation for violent crime and drug trafficking. Nor did the prosecution elicit testimony about the reliability of the TX Gang database or Martel's level of familiarity with it.
Second, Deputy M. Dubose of the Liberty County Sheriff's Office testified that Wright is an active member of the Aryan Brotherhood. But once again, the prosecution did not solicit any testimony explaining how Dubose knew about gangs in general, the Aryan Brotherhood in particular, or Wright's membership.
It is well-understood that a defendant's active membership in a group known for criminal activity is virtually always a relevant consideration in deciding an appropriate punishment. See Beham v. State, 559 S.W.3d 474, 479 (Tex. Crim. App. 2018) (stating evidence a defendant is an active member of a gang that regularly engages in criminal activity "is almost always relevant for sentencing purposes"). Like any other testimony, however, facts about gangs, gang-related criminal activities, and one's active participation in these activities cannot be conclusory or speculative. See id. at 484 (stating prosecution "must make some showing of the group's violent or illegal activities" for membership to be relevant to sentencing). Nor is every law-enforcement officer competent to testify on these matters. See id. at 477 (noting that prosecution called "an experienced detective specializing in gang activity" to testify about gang crime and offer opinion based on photographs of defendant that he held himself out to the public as a member of some gang).
Here, the evidence about both the Aryan Brotherhood's activities and Wright's membership depended on the unsupported assertions of two witnesses who were not shown to have any experience or personal knowledge on these subjects. Without this foundation, this evidence was not admissible. See id. at 477, 484.
Like the testimony that Wright was a suspect in his own sister's murder, the testimony that he was an active member of the Aryan Brotherhood was introduced for the purpose of establishing that he is the sort of especially incorrigible and unusually dangerous habitual offender whom the jury should punish severely. Presented with this evidence, the jury did just that, and it is hard to fault it for doing so. A member of a violent gang who poses a mortal threat to even his nearest kin is the sort of criminal who deserves a sentence at or near the statutory maximum.
The problem is that the jury should not have heard the evidence about the murder and gang. Under well-settled law, our criminal-justice system requires us to ignore this circumstance because these issues were neither preserved below nor raised on appeal. But doing so results in the affirmance of a severe and disproportionate punishment based not on actual proof of the defendant's penchant for extreme violence and unreformability but the mere suggestion of these characteristics. The affirmance of this kind of tainted verdict undermines the credibility of our criminal-justice system, credibility that it needs to serve the purposes for which it exists, and it diminishes the majesty of the law.
Conclusion
With these additional thoughts, I reluctantly join the court's opinion.