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concluding defendant can not be said to have raised right to speedy trial unless he brings the matter to the court's attention
Summary of this case from Wright v. StateOpinion
No. 05-04-00741-CR
Opinion File August 9, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81702-02. Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Sebastian Green Lamar of aggravated assault and assessed punishment at five years in prison. Appellant represents himself in this appeal. In twenty points of error, including multiple sub-points, he complains about the legal and factual sufficiency of the evidence to support his conviction, various evidentiary issues, charge error, and numerous violations of his constitutional and statutory rights. We affirm. Leo Bautista and his family were visiting family members in Texas in July 2002. While traveling south on U.S. 75 enroute to a skate center in Plano, Bautista noticed a two-door red Ford Explorer with the back window covered with what appeared to be dry cleaning plastic. He could see the driver only peripherally. Suddenly, Bautista heard a "thud," and his then-thirteen-year-old son, Nick, said the man driving the red SUV had shot at them with a gun. Bautista initially believed his son was joking, but once he arrived at the skate center, he inspected his vehicle and found a dent on the passenger door, consistent with being hit by a BB or pellet. Bautista flagged down a passing police officer, who had Bautista follow him to the police station, where Bautista reported the incident. On his way back to his hotel about one hour later, Bautista again saw the same red Explorer, identifiable by the back window. Bautista had an unobstructed view of the driver. He immediately called the police and reported the license plate number. According to Bautista, the driver was wearing a coat and tie. The Bautistas left the area one or two days later. Before they left, Plano police e-mailed Bautista six photographs to view. Bautista, his wife, and son Nick viewed the photographs separately. Each selected appellant's photograph as the man driving the red Explorer. Nick was the sole eyewitness to the shooting. He testified he saw the man reach over, pull out a BB gun or pistol, point the weapon at his family's van, and fire. Afterwards, the man put the gun down. According to Nick, the man was wearing sunglasses and was "dressed in a business manner, with a tie and tux." Nick testified he got a pretty good look at the man's face and saw him about an hour later at another intersection. Both times, the man was driving the red SUV. He identified appellant in court as the man he saw shoot at his family's van. Appellant testified he was job hunting in the Turtle Creek area in Dallas at the time of the shooting incident. He testified he was wearing a suit and tie. He went to about six different places, including The Mansion and the Crescent hotel and restaurant, but he could not remember the other places where he had put in an application that day. He said he did not think he was in Plano at all that day, yet he could not explain how the Bautistas obtained his license plate number. He acknowledged that when he was arrested one week later, the police found a box of BBs in his car. He said he had owned a BB pistol in the past, but not on the day of the incident. He denied shooting at the Bautista's vehicle. The jury convicted appellant, and this appeal ensued. Before addressing the merits of appellant's complaints, we first address appellant's brief. Appellant's brief is more than 150 pages in length, and he also filed an an eleven-page supplemental brief. Appellant purports to raise multiple sub-issues within each of his points of error and, more often than not, provides snippets of law with no accompanying analysis. We have given our best effort to ascertain appellant's complaints, and we will broadly construe his issues in the interest of justice. However, although appellant is representing himself in this appeal, we will hold him to the same standards as a licensed attorney and do not grant him any special consideration. See Johnson v. State, 760 S.W.2d 277, 279 (Tex.Crim.App. 1988). We have no duty to make an independent review of the record and applicable law to determine whether the complained-of errors occurred. See Cavender v. State, 42 S.W.3d 294, 296 (Tex.App.-Waco 2001, no pet.). We will not make appellant's arguments for him nor will we address those issues that are inadequately briefed. In his first point of error, appellant complains the evidence is legally insufficient to support his conviction. Within this point, appellant purports to raise twenty-two additional sub-points in which he generally complains that the State failed to prove each element of the offense beyond a reasonable doubt. Evidence is legally insufficient if, when viewed in a light most favorable to the verdict, a rational trier of fact could not have found each element of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and of the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). Likewise, reconciliations of conflicts in the evidence is within the exclusive province of the jury. Id. A person commits aggravated assault if he intentionally and knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the assault. See Tex. Pen. Code Ann. § 22.01(a)(1) 22.02 (Vernon Supp. 2004-05). The State charged that appellant had threatened Leo Bautista with imminent bodily injury and had used or exhibited a deadly weapon, i.e., a BB gun. Appellant argues that the State did not prove (1) he was the shooter, (2) Leo Bautista was threatened with imminent bodily injury, and (3) the BB gun was a deadly weapon. As for his first complaint, Nick Bautista testified that he saw appellant pull up along side his van, pull a BB gun, point it at his van, and fire. Simultaneously, Nick's father heard a "thud." Bautista found the passenger door had a dent consistent with being hit by a BB or pellet. Both Nick and his father identified appellant as the driver of the red Explorer. Appellant argues, however, that he had an alibi: he was job hunting in Dallas when the incident occurred. The jury, as fact finder, had the responsibility to resolve any conflicts in the evidence and was free to believe or disbelieve all or part of any witness's testimony. It is clear from the jury's verdict that it discredited appellant's testimony. The evidence was legally sufficient to prove that appellant was the shooter. Next, appellant argues that Leo Bautista was "obviously not the intended target," because the driver of the SUV shot at the passenger side of the van instead of the driver's side. He argues that Bautista did not even know about the "alleged BB shot" until Nick told him. Thus, he argues, Bautista was not threatened with imminent harm. It is not necessary that the complainant be placed in fear of imminent bodily injury; it is the appellant's threat, made with the intent to place the complainant in fear of imminent bodily injury, that constitutes the offense. Trevino v. State, 752 S.W.2d 735, 737 (Tex.App.-Eastland), pet. dism'd, 759 S.W.2d 142 (Tex.Crim.App. 1988) . Intent can be established through acts, words, and conduct. Id. According to the evidence, appellant shot at the Bautistas' van while driving along side of it, in the middle of the day, on a busy roadway where anyone could see him, including Bautista. From this evidence, a rational jury could conclude that appellant displayed a clear intent to threaten Bautista with imminent bodily injury. Whether Bautista actually saw appellant point the gun at him is immaterial because the focus is on whether appellant took an act that was intended to be seen by Bautista. The evidence is legally sufficient to support the jury's finding that appellant threatened Bautista with imminent bodily injury. See Trevino, 752 S.W.2d at 737 (concluding rational trier of fact could have found defendant threatened complainant with serious bodily injury with firearm even though complainant not at home when defendant shot at house). Finally, appellant complains that the State failed to prove that the BB gun was a deadly weapon. A deadly weapon includes "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2004-05). An alleged deadly weapon's capability of causing death or serious bodily injury in the manner of its use must be evaluated in light of the facts that actually existed when the felony was committed. Johnston v. State, 115 S.W.3d 761, 763 (Tex.App.-Austin 2003), aff'd, 145 S.W.3d 215 (Tex.Crim.App. 2004). With testimony that a BB gun is capable of causing serious bodily injury, it is reasonable for a jury to make a deadly weapon finding. Adame v. State, 69 S.W.3d 581, 582 (Tex.Crim.App. 2002). In this case, the evidence showed appellant pointed a BB gun out of his vehicle window and fired at Bautista's vehicle, hitting the passenger door. Bautista testified he believed that if he had been struck by the BB, it could have caused him serious bodily injury. Detective Weaver testified that he had seen many injuries caused by various weapons in his twenty-year law enforcement career. He also testified he was familiar with BB guns as a type of weapon and saw the indentation to the Bautista's van. He testified that such a weapon could cause death or serious bodily injury, depending on its manner of use. For example, Weaver said a driver could lose control of his vehicle if shot at on the roadway by a BB gun or the BB could strike the person in the eye or the head. In either situation, serious injury or death could result. Considering the evidence, a rational jury could have found beyond a reasonable doubt that the BB gun was a deadly weapon in the manner of its use. We overrule the first point of error. In his second point of error, appellant complains the trial court erred in admitting the photographic lineup from which Bautista and Nick identified him. Appellant argues (1) the pretrial procedure used was impermissibly suggestive and tainted the in-court identification, rendering it inadmissible, and (2) he should have been allowed an in-court lineup. Evidence at trial showed that within two days of the incident, Plano police e-mailed six photographs to Bautista. The photographs depicted African-American males of similar age with short-cropped hair; one of the photographs was of appellant. Detective Eric Weaver instructed Bautista to show the lineup to Nick and anyone else who had seen the driver of the red SUV and if anyone identified a photograph, to sign it and return it. Bautista looked at the photographs and identified appellant. Then Bautista, who had experience dealing in suspect lineups in his prior jobs, showed the photographs to Nick. He told Nick the person may or may not be in the photographs. (In fact, Nick testified his father said it "could be very possible" that the person was not.) Bautista did not tell Nick that he had made an identification. After looking at the photographs, Nick easily identified appellant. Bautista followed the same procedure when he showed the photographs to his wife, who also identified appellant as the driver of the red SUV. Nick identified appellant at trial, without objection, as the shooter, and Bautista identified appellant at trial, without objection, as the driver of the red SUV. Detective Weaver testified, without objection, that Nick had selected appellant's photograph as the person who had shot at his family van. Bautista testified that all family members selected the same photograph as the suspect. In other words, the jury knew that the Bautistas had selected appellant's photograph as the assailant, and both Nick and his father identified appellant in open court as the assailant, before appellant ever lodged an objection. Nevertheless, at trial and on appeal, appellant complains the trial court erred in admitting the photographic array because the police were not present when the Bautistas viewed the photographs to ensure the reliability of the identification. Appellant asserts that Bautista may have "assisted" Nick in identifying him as the suspect, which tainted the in-court identification. Generally, the defendant's attack is against an in-court identification as being tainted by an impermissibly suggestive pretrial identification procedure. This is done by a motion to suppress the identification with a hearing held outside the jury's presence. Wallace v. State, 75 S.W.3d 576, 583 (Tex.App.-Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex.Crim.App. 2003). At a minimum, there should have been a trial objection to the in-court identifications made by the witnesses who viewed the photographic array. See id. The failure to complain about or object to the in-court identifications constitutes a procedural default and waiver of any complaint on appeal. Id. Even if we assumed the complaint was preserved, we could not conclude that the procedure used by the Plano police was impermissibly suggestive. Although appellant speculates in his brief that Bautista "pressur[ed]" his son into identifying him, there is no evidence to support such a claim. In fact, the only evidence is to the contrary. Bautista testified that he had experience with suspect lineups and, because of that experience, specifically told his son that the person may or may not be depicted in the photograph. He did not in any way suggest who, if anyone, to select. Under the circumstances of this case, we cannot say the pretrial procedure was impermissibly suggestive. As for appellant's complaint that he should have been allowed an in-court lineup, he made no such request of the trial court. Consequently, this complaint is waived. See Tex.R.App.P. 33.1. We overrule the second point of error. In his third point of error, appellant argues the trial court allowed conviction on a theory other than that alleged in the indictment. In particular, he complains the indictment charged him with "knowingly and intentionally" threatening Bautista with imminent bodily injury, while the charge instructed the jury it could find him guilty if it found he "knowingly or intentionally" threatened Bautista with imminent bodily injury. Culpable mental states may be alleged conjunctively in the indictment and submitted to the jury in the court's charge disjunctively. Rogers v. State, 774 S.W.2d 247, 251 (Tex.Crim.App. 1989), overruled on other grounds by Peek v. State, 106 S.W.3d 72, 79 (Tex.Crim.App. 2003); Daniels v. State, 652 S.W.2d 614, 615 (Tex.App.-Dallas 1983, no pet.). Consequently, the trial court's charge did not authorize a conviction of appellant on a theory not alleged in the indictment. We overrule the third point of error. In his fourth point of error, appellant complains he was denied a speedy trial in violation of his state and federal constitutional rights. Although the record shows appellant filed two pro se motions to discharge for delay, the motions were not presented to the trial court, no hearing was held, and no argument advanced. Unless a defendant brings the matter to the attention of the trial court, he or she cannot be said to have asserted his right to a speedy trial. Oldham v. State, 5 S.W.3d 840, 846 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Without a hearing, the prosecution has no opportunity to establish the reasons for the delay, and neither party can adequately establish or refute the existence of prejudice. Id. Accordingly, we conclude appellant waived his complaint by failing to assert his right to a speedy trial below. Jones v. State, 740 S.W.2d 497, 498 (Tex.App.-Dallas 1987, pet. ref'd); Oldham, 5 S.W.3d at 846. We overrule the four point of error. In his fifth and eighth points of error, appellant complains he was denied effective assistance of counsel and points to dozens of alleged failures by his court-appointed lawyers. To obtain reversal on grounds of ineffective assistance of counsel, appellant must show that (1) trial counsel's performance was deficient in that it fell below the prevailing norms and (2) he was prejudiced by the deficiency; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Andrews v. State, 159 S.W.3d 98, 101-02 (Tex.Crim.App. 2005). We commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Id. The record on direct appeal is in almost all cases inadequate to show counsel's conduct fell below an objectively reasonable standard of performance and the better course is to pursue the claim in habeas proceedings. Id. In this case, appellant did not file a timely motion for new trial; consequently, there is no record to explain the motivation behind counsel's actions or inactions and whether they resulted from strategic design or negligent conduct. Accordingly, based on the record before us, we cannot conclude appellant has met his burden to establish, by a preponderance of the evidence, that trial counsel's performance fell below an objective standard of reasonableness. We overrule the fifth and eighth points of error. In his sixth point of error, appellant complains the amount of his pretrial bail was excessive. "Issues concerning pre-trial bail are moot after the accused is convicted." Oldham, 5 S.W.3d at 846 . We overrule the sixth point of error. In his tenth point of error, appellant complains about prosecutorial misconduct, asserting (without any support in the record) that the State's witnesses "were obviously lying to get a conviction." He also complains the prosecutor tried to "brainwash" the jury by arguing a "BB gun is a deadly weapon." Appellant, however, did not object to any of the actions that he complains of on appeal; accordingly, his complaints are waived. See Tex.R.App.P. 33.1. Moreover, his complaint is inadequately briefed. See Tex.R.App.P. 38.1(h). Regardless, we have reviewed the substance of appellant's complaints, and none constitutes prosecutorial misconduct. We overrule the tenth point of error. In his eleventh point of error, appellant complains the trial court forced him to testify against himself in violation of his Fifth Amendment right to remain silent. Appellant voluntarily took the stand at the guilt-innocence phase of trial and responded to his attorney's questions. When the prosecutor began his cross-examination, appellant attempted to "plead the Fifth," but the trial judge ordered appellant to respond to the questions. It is axiomatic that a criminal defendant may not be compelled to testify at his trial and give evidence against himself. U.S. Const. Amend. V; Bryan v. State, 837 S.W.2d 637, 653 (Tex.Crim.App. 1992). However, when as here a defendant voluntarily testifies before a jury, he is subject to the same rules governing direct examination and cross examination as any other witness. Bryan, 837 S.W.2d at 643. That is, he may be "contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying, except where there are overriding constitutional or statutory prohibitions." Id. (quoting Brown v. State, 617 S.W.2d 234, 236 (Tex.Crim.App. 1981)). Appellant voluntarily took the stand to testify and therefore waived his privilege against self-incrimination. Consequently, the trial court did not err in ordering him to respond to the prosecutor's questions. We overrule his eleventh point of error. In his eighteenth point of error, he complains his five-year sentence violates the cruel and unusual punishment clause of the Eighth Amendment. Specifically, he complains the sentence is disproportionate to the conduct, which he characterizes as "one shot causing a tiny dent in a rear passenger van door (knee level) from a toy BB-gun. There were no injuries!" Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). When his sentence was announced, appellant did not object that it violated his constitutional rights nor did he advance that claim in a post-trial motion. Accordingly, we conclude this issue has not been preserved. Regardless, his argument fails. Punishment assessed within the statutory range is not unconstitutionally cruel and unusual. Id. Aggravated assault is a second-degree felony. Tex. Pen. Code Ann. §§ 22.01, 22.02(a)(2), (b) (Vernon Supp. 2004-05). The punishment range for a second-degree felony is imprisonment for two to twenty years and up to a $10,000 fine. See Tex. Pen. Code Ann. § 12.33 (Vernon 2003). Appellant's punishment was within the statutory range and was on the lower end. With respect to his assertion that the sentence is disproportionate, appellant has presented nothing for comparison, specifically sentences for other persons convicted of aggravated assault. Appellant also complains he was subjected to cruel and unusual punishment because he received poor medical treatment at the county jail and was mistreated by the guards and other inmates. Even if we assumed this issue is appropriate for direct appeal and is relevant to appellant's conviction, appellant's assertions regarding his treatment are unsupported by the evidence. We overrule the eighteenth point of error. In points seven, twelve, thirteen, and fourteen, appellant complains he was denied discovery and compulsory process, challenges the legality of his arrest and search, and asserts extraneous offense evidence was improperly admitted. Appellant, however, does not point us to any place in the record where he objected to the trial court that (1) he was denied discovery or compulsory process, (2) he was illegally arrested and searched, and (3) the extraneous offense evidence was inadmissible. Moreover, in our review of the record, we did not locate any objections. We therefore overrule points seven, twelve, thirteen, and fourteen. See Tex.R.App.P. 33.1(1); Saldano v. State, 70 S.W.3d 873, 899 (Tex.Crim.App. 2002) (recognizing that even constitutional right can be forfeited by failing to object). In his twentieth point of error, appellant complains he was denied his right to file a writ of habeas corpus because (1) the trial court did not reply to his request for a record to be prepared, (2) neither the prosecutor nor the trial judge sent him habeas corpus forms despite his written requests, and (3) he was not allowed sufficient time in the jail library. We note that the record contains an April 10, 2004 notice of appeal in which appellant notifies the trial court that he is appealing his "illegal detention" by habeas corpus to the Fifth Circuit Court of Appeals and requesting the court to "prepare and submit the Clerks Record and Reporters Record for all proceedings" in the case. The record does not indicate whether the trial court responded to this request. Moreover, appellant does not support any other of his factual assertions in his brief with record citations. He also does not provide any legal authority for the propositions that the trial court was required to prepare the record, that the prosecutor or trial judge was required to provide him habeas forms, that he is required to have a certain amount of time at the jail library. Under these circumstances, we conclude this point is inadequately briefed. See Tex.R.App.P. 38.1. We overrule the twentieth point of error. In addition to the above, appellant also listed the following points of error in his brief: nine, denied presumption of innocence; fifteen, faulty competency trial; sixteen, denied impartial jury; and seventeen, denied equal access of the courts and equal protection of the law. Appellant's brief, however, does not address these points. Consequently, nothing is presented for review. See Tex.R.App.P. 38.1. Additionally, in point of error nineteen, appellant complains that he was led to believe his case was dismissed. For his argument, he directs us to two pages contained in point of error ten. We have reviewed the pages and conclude this point is inadequately briefed. See Tex.R.App.P. 38.1(h). We affirm the trial court's judgment.