In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00215-CR ______________________________
FINLEY RAYDELL BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 022449-B
Before Morriss, C.J., Ross and Carter, JJ. Opinion by Chief Justice Morriss
O P I N I O N
Finley Raydell Brown appeals from the punishment assessed by the trial court after Brown pled guilty to possession of a controlled substance with intent to deliver. His sentence was enhanced with two prior felonies, and Brown was originally sentenced on June 19, 1995, to thirty years' imprisonment. Brown's subsequent habeas corpus application, asserting the thirty-year sentence was excessive, was ultimately granted by the Texas Court of Criminal Appeals, which ruled that under the circumstances any sentence ordered for Brown exceeding twenty years was excessive. His case was remanded to the trial court for "assessment of an authorized punishment."
At the resentencing hearing, the trial court granted the State's motion that judicial notice be taken of the evidence admitted in the first sentencing hearing. Brown's sole objection at the hearing was that the prior felony conviction was void and, therefore, the prior conviction would not support enhancement of the sentence for the current charge and the trial court was thus limited to a maximum sentence of two years. The trial court sentenced Brown to twenty years' imprisonment.
Brown appeals, asserting two points of error: (1) that the evidence supporting punishment was insufficient to impose a sentence greater than two years, and (2) that the trial court was disqualified from using as an enhancement the 1976 conviction obtained by Judge Alvin Khoury when he was prosecutor. We affirm.
Sufficiency of the Evidence
Brown first contends the evidence was insufficient to support any sentence greater than two years and, therefore, the sentence of twenty years was error. Under this point of error, Brown argues that (1) the State failed to adduce any evidence of prior convictions at the hearing, violating Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 1981 & Supp. 2003); (2) the evidence was insufficient under Tex. Const. art. 1, § 19 and Tex. Code Crim. Proc. Ann. art. 1.04 (Vernon 1977); and (3) Brown's 1976 conviction used for enhancement is void because the conviction of a codefendant in that 1976 case was overturned.
In determining the more rigorous standard of factual sufficiency, we examine the evidence in a neutral light and set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We review the evidence weighed by the fact-finder that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). "In conducting its factual sufficiency review, an appellate court reviews the factfinder's weighing of the evidence and is authorized to disagree with the factfinder's determination." Clewis, 922 S.W.2d at 133. Our review, however, must employ appropriate deference to prevent us from substituting our judgment for that of the fact-finder, and our evaluation should not substantially intrude on the fact-finder's role as the sole judge of the weight and credibility given to witness testimony. Jones, 944 S.W.2d at 648.
Brown argues that, at the new hearing on punishment, there was no evidence of the prior convictions, essentially because judicial notice was improper in light of Tex. Code Crim. Proc. Ann. art. 37.07. Brown reasons that the 1995 hearings on guilt/innocence and punishment were compressed into one hearing, short-cutting the procedure set out in Article 37.07, and that therefore, on remand for resentencing, the State was required to re-offer each prior conviction used for enhancement and prove them with new evidence. Brown makes no argument from any language of Article 37.07 and points out no legal authority supporting his claim. We see no support for this claim in either place.
A trial court must take judicial notice of adjudicative facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" when "requested by a party and supplied with the necessary information." Tex. R. Evid. 201(b), (d). There is nothing suggesting that the proof adduced at the first punishment hearing was flawed or not capable of being used in the second punishment hearing in the same case. Nothing in Article 37.07 rejects the validity of judicially noticed evidence. (1)
Brown failed to object to the trial court taking judicial notice of the evidence (2) from the prior sentencing hearing. He cannot be heard to make such objection, now, for the first time on appeal. See Rezac v. State, 782 S.W.2d 869, 871 (Tex. Crim. App. 1990); Revell v. State, 885 S.W.2d 206, 211 (Tex. App.-Dallas 1994, pet. ref'd).
Brown also claims the evidence was insufficient as denying "due course of law" under Tex. Const. art. 1, § 19 or Tex. Code Crim. Proc. Ann. art. 1.04, and refers us to Jackson v. Virginia, 443 U.S. 307 (1979), and In re Winship, 397 U.S. 358 (1970). Brown fails to point out, however, just why he contends the evidence is insufficient to afford him "due course of law." We see no reason why it is not sufficient to do that. Additionally, Brown has failed to raise this issue on appeal.
Texas Rule of Appellate Procedure 38.1(h) provides that the "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Conclusory arguments which cite no authority present nothing for our review. See Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992); Atkins v. State, 919 S.W.2d 770, 774 (Tex. App.-Houston [14th Dist.] 1996, no pet.). . . . Appellant's briefing on this issue falls short of the minimum required to present an issue for appellate review. Because Appellant failed to adequately brief the court on his due process and due course of law arguments, he waived error. See Greer v. State, 999 S.W.2d 484, 488 n.3 (Tex. App.-Houston [14th Dist.] 1999, pet. filed). Accordingly, we conclude that Appellant's due process and due course of law contentions present nothing for review.
King v. State, 17 S.W.3d 7, 23 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (supplemental op. on reh'g).
Next, Brown asserts the issue he raised at the resentencing hearing: that his 1976 conviction used for enhancement is void because the conviction of a codefendant in that case was overturned. In making that assertion, Brown fails to note that, while the codefendant's conviction was overturned, Brown's conviction was not, but in fact is a final conviction. Brown testified at the resentencing hearing that his prior conviction was never reversed. We cannot conclude the prior conviction was improperly used for enhancement purposes in this cause.
Disqualification of Trial Judge
Brown next contends the trial judge who resentenced him was disqualified because he had served as prosecutor in a prior case used in this case for enhancement. Brown asserts that Ex parte McDonald, 469 S.W.2d 173 (Tex. Crim. App. 1971), is on "all fours" with this case and makes the prior case void and not useable for enhancement.
The McDonald case does not stand for that proposition. McDonald had been convicted of felony theft in 1963, and his sentence had been enhanced by two prior convictions, a 1953 burglary conviction and a 1961 felony theft conviction. It was shown that the person who actively prosecuted the 1953 burglary charge (which prosecution occurred while McDonald was indigent and was not represented by counsel), later became a judge and revoked McDonald's probation, which had been ordered as a result of that 1953 burglary conviction. The Texas Court of Criminal Appeals ruled that Tex. Const. art. V, § 11 ("no judge shall sit in any case wherein . . . he shall have been counsel in the case") and Tex. Code Crim. Proc. Ann. art. 30.01 (Vernon Supp. 2003) ("no judge shall sit in any case . . . where he has been of counsel for the State or the accused") were mandatory and rendered the prior conviction unavailable for enhancement. McDonald, 469 S.W.2d at 174. McDonald is distinguishable from the case before us.
The trial judge in this case (case number 22,449-B out of the 124th Judicial District Court of Gregg County, Texas) did not also act as counsel in this case at any time. Nor does it appear from the record before us that he served as both counsel and as judge in either of the cases used for enhancement purposes (case number 10,805-B out of the 124th Judicial District Court of Gregg County, Texas, and case number 13,564 out of the 123rd Judicial District Court of Panola County, Texas). The record reflects only that he served as prosecutor in one of them, 10,805-B. That at the very least does not establish a disqualification under Tex. Const. art. V, § 11 or Tex. Code Crim. Proc. Ann. art. 30.01 that would render a prior conviction useless for enhancement purposes under McDonald. There is no disqualification under these circumstances. Griffin v. State, 487 S.W.2d 81 (Tex. Crim. App. 1972); Hathorne v. State, 459 S.W.2d 826 (Tex. Crim. App. 1970); Madden v. State, 911 S.W.2d 236, 240-41 (Tex. App.-Waco 1995, pet. ref'd); Nevarez v. State, 832 S.W.2d 82, 88 (Tex. App.-Waco 1992, pet. ref'd).
Lastly, appellant contends the judge was disqualified since he was the prosecutor in appellant's prior 1962 conviction for unlawfully breaking and entering a motor vehicle, which conviction was introduced as part of appellant's "prior criminal record" at the penalty stage of the trial. . . . Even if it can be argued that [the evidence] is sufficient to show that the judge was, in fact, the actual prosecutor in the earlier conviction, Hathorne v. State . . . has been decided contrary to appellant's contention, overruling or qualifying all of the authorities relied upon.
Griffin, 487 S.W.2d at 82-83. We overrule Brown's second point of error.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: May 12, 2003
Date Decided: June 4, 2003
Publish
1. We also note the Texas Court of Criminal Appeals returned the case to the trial court for "assessment of an authorized punishment," not necessarily a new hearing on punishment.
2. Brown did object to the use of the prior conviction on the basis that his codefendant's conviction had been overturned. We deal with that assertion elsewhere.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00102-CR
______________________________
GERALD MILLARD MARSH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 37597-B
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
O P I N I O N
Gerald Millard Marsh appeals his conviction for aggravated assault with a deadly weapon, sentence of fifteen years imprisonment, and fine of $10,000.00 on the sole ground that the trial court erred in denying Marsh the right to utilize Marcus Smiths juvenile record to establish a theory of self-defense. We affirm the trial courts judgment.
The following facts are not in dispute. Marcus Smiths sister Felicia Smith stayed with Marsh in his home. During the night, Marcus and his friend Keith Bates paid a visit to Felicia to [s]ee if she wanted to come drink with us. Marsh answered the knocking at the door and announced that he did not want Marcus in his home and desired that he leave. As a result of an altercation, Felicia, Marcus, and Bates were located on the front yard. Marcus retrieved a gun from within the home and fired several shots through the open front door. Felicia was shot and killed.
Marcus claimed that Marsh answered the door and stated Felicia was asleep. Marcus and Bates got ready to leave, [and] started heading back towards the truck when Felicia came out. She was arguing with Marsh. Marcus testified, I seen him hit her and knock her off the porch. . . . I . . . walked towards her. She was on the ground. And [Marsh] went inside, [to] get his gun. And then when I see him come back, I got up and ran beside Keith Bates truck and ducked down. According to Marcus, Marsh appeared aggressive, [and] mean, and said, he was tired of us, he was going to kill everybody as he opened fire. Marcus testified that he was not carrying a weapon that night.
Marsh testified he was awakened by a beating on the door. He opened the door to find Marcus and Bates, who had a can of beer in his hand. Thinking this was nothing but trouble, he announced, You-all are not coming in my house. According to Marsh, Marcus started yelling and screaming, grab[bed] the door, knock[ed] him back, and started swinging at [him] like he was crazy. Marsh claimed he fought back and hit [Marcus] right on the right side of his head, but [i]t was just a glancing blow. Marsh claimed that when Felicia witnessed Marcus get hit, [s]he said, You dont hit my brother. And she hauls off and, bam, hit [Marsh] on the side of [his] head. Marsh continued to describe a brawl in which Marcus and Felicia simultaneously attacked him in his home. He managed to get Felicia and Marcus on the front yard, and ran inside to get his gun. Marsh claimed, [W]hen I ran back, I saw them -- they looked like they were arguing over something. I dont know what it was. All I remember, I saw a silver -- a little silver thing . . . and in my panic and shock that I was in, I assumed this was a small caliber weapon. After retrieving the gun, Marsh told them, you know, Get out of my yard, get off my property, before firing warning shot[s]. Marsh claimed, I tried to shoot over their heads, and thats what -- what I was doing.
A trial courts decision to admit or exclude evidence is reviewed only for abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). A trial court does not abuse its discretion if the decision to admit evidence is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on rehg). We may not substitute our own decision for that of the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). If the trial courts decision on the admission of evidence is supported by the record, there is no abuse of discretion, and the trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379.
Marsh was charged with intentionally and knowingly threatening Marcus with imminent bodily injury by pointing a firearm in the direction of Marcus Smith, and . . . us[ing] or exhibit[ing] a deadly weapon, to-wit: a firearm, during the commission of said assault. Rule 404(a)(2) of the Texas Rules of Evidence allows admission of evidence of a pertinent character trait of the victim of the crime offered by an accused. Tex. R. Evid. 404(a)(2). Rule 405 provides that [i]n cases in which a persons character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that persons conduct. Tex. R. Evid. 405(b). Because Marsh asserted a self-defense claim, testifying that Marcus assaulted him after he was asked to leave, Marsh wanted to introduce a juvenile adjudication on Marcus record for attempted capital murder during his direct testimony. The purpose for introduction of the records was to establish that his fear of Marcus was reasonable.
However, there was no testimony or argument presented that Marsh was, in fact, fearful of Marcus on the basis of attempted capital murder which occurred over sixteen years ago. Nevertheless, Marsh complains that the trial courts ruling denying the defendant the right to cross examine Marcus Smith about his juvenile adjudication for attempted capital murder in light of defendants claim of self-defense was in error.[1] To support his analysis, Marsh cites to Rule 404. Yet, in accordance with Rule 404, the trial court allowed Marsh to testify to Marcus character through opinion and reputation testimony, but instructed Marsh not to address the juvenile adjudication and underlying facts of the attempted capital murder. Our review of Marshs briefing reveals no complaint addressing Rule 405.
Juvenile adjudications are generally not admissible in criminal cases unless the evidence is required to be admitted by the Constitutions of the United States or Texas. Tex. R. Evid. 609(d). Marsh now argues that excluding evidence of Marcus juvenile adjudication restricted his ability to attack Marcus credibility thereby denying him his constitutional right of confrontation and cross-examination. Davis v. Alaska, 415 U.S. 308 (1974). But at the trial court, the only basis presented for admitting Marcus juvenile record was to establish the reasonableness of Marshs fear of Marcus in support of his claim of self-defense or his claim that Marcus was the aggressor. The trial court was never presented with an argument that Marshs constitutional right of confrontation was violated and, therefore, it never had an opportunity to rule on that issue. Failure to present the very complaint that is made on appeal waives or forfeits the issue. Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002). In any event, under an abuse of discretion review, we will uphold the trial courts ruling on the admission or exclusion of evidence if the ruling was proper under any legal theory or basis applicable to the case. See id. In instructing Marsh not to testify about the juvenile adjudication, the trial court stated:
The Court finds that even if that evidence is probative, the danger of unfair prejudice substantially outweighs any probative value. Further, the Court finds that those specific instances of conduct would be introduced merely just to show conformity with character and do not go to the issue at hand.
Thus, it appears the trial courts ruling was also based on application of Rule 403.[2] The court felt that even if the specific instance of conduct, an attempted capital murder which occurred over sixteen years ago, had some probative value on the issue of self-defense, the probative value was substantially outweighed by the danger of unfair prejudice. Our review of Marshs brief reveals that there is no challenge to the trial courts Rule 403 ruling. Failure to challenge this independent ground for exclusion of the evidence would allow us to uphold the trial courts ruling. Dinger v. State, No. 12-06-000190-CR, 2007 WL 2257936, at *2 (Tex. App.Tyler Aug. 8, 2007, pet. refd) (mem. op., not designated for publication); Whitehorn v. State, No. 10-02-00263-CR 2004, Tex. App. LEXIS 6373, at *45 (Tex. App.Waco July 14, 2004, pet. refd) (mem. op., not designated for publication) (Appellant does not address the States independent Rule 403 objection, and we may overrule his issue for that reason alone.).[3]
Rather than attacking the trial courts ruling that the evidence was barred by Rule 403, Marsh argues the trial court erred in excluding the evidence because Marsh sought to demonstrate his right of self-defense which would demonstrate a reasonable fear of Marcus . . . . The evidence would have had an effect on a jury and the violation of Marshs right of cross-examination is a constitutional error that requires reversal. None of these arguments contend that the trial court erred in explicitly finding that even if the evidence was relevant, it should be excluded because the danger of unfair prejudice substantially outweighed its probative value. Therefore, we overrule Marshs sole point of error.
We affirm the trial courts ruling.
Jack Carter
Justice
Date Submitted: May 23, 2011
Date Decided: June 10, 2011
Publish
[1]Marsh did not attempt to cross-examine Marcus about his juvenile record as suggested by the point of error. Prior to Marcus examination, Marsh entered into an agreement with the State that he would not mention the juvenile adjudication.
[2]Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . . Tex. R. Evid. 403.
[3]Even though these unpublished opinions have no precedential value, we believe the rationale and reasoning employed is sound.