James SAMPLE, Appellant v. The STATE of Texas, State.
No. 02-11-00292-CR.
Court of Appeals of Texas, Fort Worth.
June 13, 2013.
Discretionary Review Refused Sept. 11, 2013.
Pаul Johnson, Criminal District Attorney, Charles E. Orbison, Assistant Criminal District Attorney, Chief Appellate Division, Andrea R. Simmons, Anthony James Paul, Justin Jones, Assistant Criminal District Attorney, Denton, TX, for The State.
Panel: GARDNER, McCOY, and MEIER, JJ.
OPINION
ANNE GARDNER, Justice.
Introduction
Appellant James Sample appeals his conviction and sentence for felony driving while intoxicated (DWI).1 In three issues, he contends that the trial court erred by (1) denying his motion to suppress evidence, (2) denying his motion to quash the indictment, and (3) imposing cruel and unusual punishment. We affirm.
Background Facts and Procedural History
Lauren Staten and Amy Frazier had been to Denton for ice cream and on their way home stopped at Hunter‘s convenience store in Sanger. While they were still in the car, Appellant pulled up in a white and yellow van that he parked very close and perpendicular to them. He climbed out of the van, told the girls that they did not belong there, and stumbled into the store. Amy thought he looked “very drunk.” She stayed in the car while Lauren, after some hesitation, entered the store to buy cigarettes.
Inside, Appellant approached Lauren in a way she found offensive. Noting that “his eyes weren‘t right,” she guessed he was “on a good amount of drugs.” When she rebuffed his advances, he pulled up his shirt, called her names, and made racial remarks. Watching from the car in the parking lot, it appeared to Amy that Appellant was yelling at Lauren and that her friend was getting upset.
Lauren left the store without making a purchase. Appellant continued to harass her as he followed her into the parking lot. Finally, after Lauren warned him that she was calling the police, he climbed into the van and left.
The girls called 911. Officers arrived and were taking the girls’ statements in the parking lot when the girls exclaimed that Appellant‘s van was passing by. Officer Stoney Ward prоmptly pulled the van over.
Officer Ward recognized Appellant from previous encounters and could tell that he had been drinking. Appellant smelled strongly of alcohol, his eyes were red, his speech slurred, and his mannerisms lethargic. The officer observed an open beer bottle in the van as well as spilled liquid on the floorboard that smelled of alcohol.
Officer Ward administered field-sobriety tests, concludеd that Appellant was intoxicated, and arrested him for DWI.
Checking Appellant‘s criminal history revealed two prior DWI convictions, so Officer Ward took Appellant to Denton Regional Hospital for a mandatory blood draw.
Appellant did not cooperate at the hospital—shouting obscenities to hospital staff
The grand jury returned an indictment charging Appellant with felony DWI, enhanced by two prior misdemeanor DWI convictions and two prior felonies—retaliation and felony assault.2 On the morning of the first day of trial, Appellant moved to quash the indictment on the grounds that one of the jurisdictional DWIs is void because Appellant pled guilty in that case without counsel and without waiving a jury trial.
At a hearing on the motion to quash, Appellant testified at first that he did not remember whether he had refused court-appointed counsel. But he later admitted that he had refused counsel so he could represent himself. He also testified that he had filled out paper work indicating that he understood the dangers and disadvantages of representing himself but that he had chosen to do so regardless. He further testified that he did not really remember signing any documents waiving a jury trial.
When the State produced the judgment from Appellant‘s prior conviction, Appellant acknowledged that hе was the named defendant. The State‘s fingerprint expert confirmed that the fingerprints on the face of the judgment matched Appellant‘s. The judgment also indicates on its face that Appellant “intelligently, knowingly, and voluntarily waived the right to counsel, and waived the right to trial by jury.” The trial court denied the motion to quash, and the case went to trial.
At trial, after the State had concluded its case-in-chief on guilt-innocencе and rested, Appellant urged for the first time an oral motion to suppress all evidence obtained after the stop, alleging that Officer Ward stopped him without reasonable suspicion. The trial court summarily denied the motion to suppress.
The defense rested without presenting evidence, the jury found Appellant guilty, and Appellant pled “true” to the notice of habitual-felony-offender status in the indictment.
Both sidеs offered evidence on punishment. The State presented Appellant‘s criminal history, which was substantial. State‘s Exhibits 10 through 33 included judgments of convictions spanning decades. In 1990, Appellant had been convicted of resisting arrest; in 1991, of criminal trespass and DWI; in 1992, assault and resisting arrest; in 1993, criminal trespass; in 1994, he was convicted twice of violating protective orders, once for assault, and once for resisting arrest; in 1996, he had four criminal trespass convictions and one assault; in 1997, assault-family violence, two criminal-trespass convictions, and harassment; in 1998, he was sentenced to five years in prison for retaliation; in 2004, another six years for assault-family violence; and in 2010, he picked up another conviction for assault-bodily injury. After deliberating on the issue of punishment, the jury assessed thirty-six years’ confinement, and the trial court sentenced Apрellant accordingly.
In his first issue, Appellant claims that the trial court erred by denying his motion to suppress because Officer Ward lacked reasonable suspicion to justify the stop. The State replies that Appellant failed to preserve his complaint because he first raised it after the State had presented all the evidence he later sought to have suppressed—in fact, after the State had rested its case-in-chief at guilt-innocence. We agree with the State.
To preserve a complaint for review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion.3
An objection must be made as soon as the basis for the objection becomes apparent.
An exception to this requirement may occur when a trial judge instructs the parties before trial to withhold their objections until after the evidence has been presented. See Garza v. State, 126 S.W.3d 79, 84-85 (Tex. Crim. App. 2004) (еxplaining that the holding “is not meant to apply in situations outside the special circumstances of this case“). Under normal circumstances, however, objecting after evidence is already admitted is untimely. See, e.g., Ratliff v. State, 320 S.W.3d 857, 861-62 (Tex. App.—Fort Worth 2010, pet. ref‘d) (holding that appellant‘s failure to object at the time officer described evidence and explained how he found it was untimely and did not preserve error); Tell v. State, 908 S.W.2d 535, 544 (Tex. App.—Fort Worth 1995, no pet.) (holding that defendant‘s objection to officer‘s testimony after officer had already answered questions about objected-to evidence was untimely and did not preserve error); Thomas v. State, 884 S.W.2d 215, 216-17 (Tex. App.—El Paso 1994, pet. ref‘d) (holding that appellant‘s objection to officers’ testimony after they had testified was untimely and did not preserve error).
There is nothing in the record to indicate that any exception applies. Apрellant did not file a pretrial motion to suppress and he did not object before or during the state‘s case-in-chief to the admissibility of any evidence officers obtained after the stop, and the trial court did not instruct
Motion to Quash
In his second issue, Appellant contends that the trial court erred by denying his motion to quash. The indictment alleged that Appellant had two prior DWIs, which enhanced this third one to a felony. See
The standard of review for assessing a trial court‘s ruling on a motion to quash turns on which judicial actor is best positioned to determine the issue in controversy. See Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). Questions of law—such as the sufficiency of an indictment or the constitutionality of a statute—are reviewed de novo because neither the trial court nor the reviewing court occupies an appreciably better position than the other to decide the issue, whereas rulings that turn on evaluations of witness credibility and demeanor are reviewed for an abuse of discretion because the appellate court—deciding the issue from a cold record—is in an appreciably weaker position than the trial court. See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); Guzman, 955 S.W.2d at 89; Ahmad v. State, 295 S.W.3d 731, 739 (Tex. App.—Fort Worth 2009, pet. ref‘d) (op. on reh‘g); cf. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007) (applying de novo review to decide constitutionality of statute challenged in motion to quash), cert. denied, 553 U.S. 1007, 128 S.Ct. 2056, 170 L.Ed.2d 798 (2008).
In this case, Appellant challenges neither the suffiсiency of the indictment nor the constitutionality of a statute. He contends, rather, that the trial court made the wrong ruling after it weighed the evidence presented at the hearing on his motion to quash. That evidence included Appellant‘s testimony, the judgment of the prior conviction, and the testimony of a fingerprint expert matching Appellant‘s fingerprints with those on the face of the judgment.
When the State seeks to enhance the punishment range for a charged offense and relies on a prior judgment in the indictment to do so, it “must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). The State may prove both of these elements by the defendant‘s admission or by “documentary proof (such as a judgment)” that contains sufficient information to establish both elements. Id. at 921-22. Oncе the State links the defendant to a prior judgment, the burden shifts to the defendant to prove the judgment is void. Johnson v. State, 725 S.W.2d 245, 247 (Tex. Crim. App. 1987).
When a defendant collaterally attacks the validity of a prior conviction on the basis that he was denied his right to
In this case, the State presented the judgment from the prior conviction and linked it to Appellant. Appellant concedes that the burden at that point shifted to him to prove that the judgment was not entitled to a presumption of regularity. He argues, however, that his testimony at the hearing “established that he neither waived his right to a jury trial nor his right to counsel.” We review the trial court‘s decision that Appellant waived his rights under the abuse of discretion standard because the trial court‘s decision is a mixed question of law and fact that “turns” on the trial court‘s evaluation of credibility and demeanor. See Moff, 154 S.W.3d at 601; Guzman, 955 S.W.2d at 89. See also Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998) (“We have suggested that a question ‘turns’ on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if bеlieved, is always enough to add up to what is needed to decide the substantive issue.“). In applying that standard of review, we are to affirm the trial court‘s ruling so long as it is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh‘g).
First, we hold that the trial court acted within its discretion to determine that Appellant did not prove that he did not voluntarily, knowingly, and intelligently waive his right to counsel because after initially stating that he did not remember waiving сounsel, Appellant admitted that he did waive counsel in order to represent himself. He further admitted during his testimony that he signed some paperwork admonishing him of the dangers and disadvantages of self-representation. See Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984). Given Appellant‘s testimony, we hold that it was within the zone of reasonable disagreement for the trial court to determine that Appellant had not met his burden of proving that he did not voluntarily, knowingly, and intelligently waive his right to counsel. See Garcia, 909 S.W.2d at 566.
Second, the absence of a written jury waiver in the court‘s file does not render a judgment void. Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex. Crim. App. 1993); State v. Garcia, 905 S.W.2d 7, 9 (Tex. App.—San Antonio 1995, pet. ref‘d). We begin with a presumption of the regularity of trial court proceedings. Kelley v. State, 676 S.W.2d 104, 108 (Tex. Crim. App. 1984); Egger v. State, 62 S.W.3d 221, 224 (Tex. App.—San Antonio 2001, no pet.). Absent an affirmative showing to the contrary, a recitation in the trial court‘s judgment alone is sufficient to show a valid jury waiver. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh‘g); Egger, 62 S.W.3d at 224. Here, the judgment recites that Appellant “appeared Pro Se, and intelligently, knowingly, and voluntarily waived the right to counsel, and waived the right to trial by
Because we hold that the trial court acted within the bounds of its discretion by denying Appellant‘s motion to quash, we overrule Appellant‘s second issue.
Punishment
In his third issue, Appellant argues that his thirty-six year sentence for DWI is cruel and unusual punishment.
As stated above, ordinarily, to preserve an issue for appellate review, an аppellant must have first raised the issue in the trial court.
Here, although Appellant did address the trial court and expressed “shock” at his “situation,” at no time did he raise a specific objection claiming that the punishment the jury assessed violated constitutional
The court of criminal appeals has said that the requirement that an objection be raised in the trial court assumes that the appellant had the opportunity to raise it there. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (citing Hardeman, 1 S.W.3d at 690). Here, the record shows that Appellant had the opportunity to raise his complaint that his punishment was unconstitutional but failed to do so. Under these circumstances he has failed to preserve his claim.
Additionally, when a sentence is within the relevant statutory range of time, that punishment is “generally not subject to challenge for excessiveness.” Means v. State, 347 S.W.3d 873, 875 (Tex. App.—Fort Worth 2011, no pet.) (citing Kim, 283 S.W.3d at 475-76); accord Ex parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006) (holding that “[s]ubject only to a very limited, ‘exceedingly rare,’ and somewhat amorphous Eighth Amendment gross-disproportionality review, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer‘s informed normative judgment, is unassailable on appeal“).
Appellant claims that his thirty-six year sentence is cruel and unusual punishment considering the severity of his offense and that it violates both state and federal constitutional prohibitions against cruel and unusual punishment. Even if we were to reach the merits of Appellant‘s complaint in the interests of justice, we are not persuaded that his sentence is cruel and unusual. See Vrba v. State, 69 S.W.3d 713, 716, 724-25 (Tex. App.—Waco 2002, no pet.) (holding that a sixty-year sentence for a DWI conviction where the defendant had an extensive criminal history was not grossly disproportionate and did not violate his Eighth Amendment rights); see also Ewing v. California, 538 U.S. 11, 20-21, 123 S.Ct. 1179, 1185, 155 L.Ed.2d 108 (2003) (recognizing that the Eighth Amendment “contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences’ ” in “exceedingly rare” cases) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S.Ct. 2680, 2702-03, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment) and Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382 (1980)). Thirty-six years is well within the relevant statutory range of twenty-five years to ninety-nine years or life for a third-degree felony DWI with two prior, sequential felony convictions.
The State‘s evidence at punishment included judgments of Appellant‘s prior convictions that spanned three decades. The record shows that in addition to the two prior and the instant DWI convictions, between the years 1990 and 2011, Appellant was convicted multiple times for resisting arrest (three times), criminal trespass (eight), assault (six), and violating protective orders (twice). In addition, he had one conviction for harassment and received prison terms for retaliation and assault-family violence.
A repeat offender‘s sentence is “based not merely on that person‘s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and
Conclusion
Having overruled each of Appellant‘s three issues, we affirm the trial court‘s judgment.