IN THE
TENTH COURT OF APPEALS
No. 10-02-00221-CR
Gonzales Bail Bonds,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 2001-3574-2
dissenting Opinion
This appeal presents an issue that desperately needs to be resolved for the “new” no evidence motion for summary judgment rule to have the full benefit of its intended effect. Tex. R. Civ. P. 166a(i). What does it mean to have no evidence of a challenged element?
In this case, the Court is relying on an inference that should not be relied upon. The evidence relied upon by the Court is from the documents in the trial court’s case file. The Court relies upon the absence of any evidence in the case file to infer that no continuance was ordered. The Court states; “The file in the Rodriguez case does not contain an order of the 54th District Court continuing Rodriguez’s prosecution. . . Nor does the docket sheet reflect that the 54th District Court signed such an order.” And then the Court’s faulty conclusion, “Thus, a fact issue remains on the question of whether Rodriguez’s prosecution was continued by court order….”
But, wait! There is no indication in this record that a court order continuing this matter would normally appear in the case file. Remember, the defendant was waiting to be indicted for a felony by the grand jury. There is no showing that an order regarding grand jury proceedings, continuing a matter from one term of the grand jury to the next, would appear in an individual case file. This is the distinction between the absence of evidence on the one hand and evidence of a negative on the other. What Gonzales needed to have evidence of is that there was no continuance. All the record has in it is a void regarding this issue.
The critical distinction between the result in this case and Acevedo is that in Acevedo, the bondsman introduced the orders which listed the names of the defendants whose cases were carried over from one term of court to the next. The court noted that, “The case against Punjabi was carried over by order of the court from the July/August 1995 term of court to the September/October and to the November/December 1995 terms of court. Punjabi’s name did not appear on the list of cases continued into the January/February 1996 term of court. On January 10, 1996, Punjabi was indicted by the Bexar County Grand Jury….” Acevedo v. State, 17 S.W.3d 775, 776 (Tex. App.—San Antonio 2000, pet. ref’d).
In this case, the orders regarding the cases continued from one term of court to the next were not presented as summary judgment evidence by Gonzales. Without some evidence of what cases were carried over, all we are left with is nothing--nothing to show that the prosecution was continued, nothing to show that the prosecution was not continued. Without showing that something should be there, you cannot properly draw an inference from the presence of nothing. In this case, nothing equals no evidence. Because it was Gonzales’s burden in response to a no-evidence summary judgment motion to present some evidence on each element of its affirmative defense, and it failed to do so, the trial court correctly rendered judgment forfeiting the bond.
Based upon the forgoing, I would affirm the summary judgment. Because the Court does not, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed August 25, 2004
THE COURT: What is your law objection, sir?
[APPELLANT'S COUNSEL]: That he's being argumentative rather than asking a question. He's not seeking to illicit facts, your Honor.
THE COURT: Overruled.
Q. Is there anybody in authority, that being the district attorney's office and any police agency in Freestone County, Texas, that's heard about Mr. Sandel's involvement in this before today?
[APPELLANT'S COUNSEL]: I object because the defendant had no duty to discuss this matter with anybody in law enforcement after the charges were filed, your Honor.
THE COURT: Overruled your objection.
Appellant's objection at trial does not comport with his point on appeal. An objection raised on appeal will not be considered if it is different from the objection made at trial. Pyles v. State, 755 S.W.2d 98, 116 (Tex. Crim. App. 1988). Appellant's sixth point is overruled.
Officer Coy stated his opinion that the equipment and chemicals found in Appellant's van were used to manufacture amphetamine. In his seventh point, Appellant argues that the court erred when it admitted Coy's opinion testimony over his objection.
Rule 702 of the Rules of Criminal Evidence, which governs the admissibility of expert testimony, provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." TEX. R. CRIM. EVID. 702. Furthermore, opinion testimony which is otherwise admissible is not objectionable "because it embraces an ultimate issue to be decided by the trier of fact." Id. at 704. Coy's opinion testimony was, therefore, proper. However, assuming that the testimony was improper, any error was cured when Appellant testified that he had "a pretty good idea" about what the chemicals and equipment were used for, and that "ya'll done come to the point that the only thing you can use those chemicals for is amphetamine." See Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. [Panel Op.] 1981). Point seven is overruled.
Appellant's eight point is that the court erred when it allowed him to be questioned about an alleged extraneous offense. The point relates to the following exchange:
Q. When did you first meet Officer Coy?
A. Officer who?
Q. Coy.
A. I never met no Officer Coy.
Q. The guy that testified earlier today.
A. The black-headed guy?
Q. Yeah.
A. I never met him.
Q. He said he had been in your house.
A. Yeah. He's been to my house probably one night when a raid come down. They all raided my house one night looking for a lab because they had followed me from a load back or somehow or another. The whole deal was a mess. But there wasn't, you know--he never made no, phew, discovery of no lab. I never met that man.
Appellant waived any error when he failed to object as soon as grounds for the objection became apparent. See Thompson v. State, 691 S.W.2d 627, 635 (Tex. Crim. App. 1984). Furthermore, because Appellant volunteered the information that his house had been raided, he cannot complain on appeal. See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988). Point eight is overruled.
In point nine, Appellant asserts that the court erred when it ordered that his eight-year sentence run consecutively with his thirty-five-year sentence. He relies on section 3.03 of the Penal Code, which provides that when an accused is found guilty of more than one offense arising out of one transaction the sentences for the offenses run concurrently. See TEX. PENAL CODE ANN. § 3.03. (Vernon 1974).
Section 3.02 provides that several offenses may be joined in one trial if the state files a written notice at least thirty days prior to trial that the offenses arose out of the same episode. Id. at § 3.02. However, when the state does not comply with section 3.02, the prohibition against cumulation of sentences contained in section 3.03 does not apply. Caughorn v. State, 549 S.W.2d 196, 197 (Tex. Crim. App. 1977). Here, because the State did not comply with section 3.02, section 3.03 is inapplicable.
Normally, the trial judge has absolute discretion to cumulate sentences. Smith v. State, 575 S.W.2d 41 (Tex. Crim. App. [Panel Op.] 1979). Point nine is overruled because section 3.03 does not apply, and because the court did not abuse its discretion when it ordered that the sentences run consecutively.
Finally, Appellant complains in point ten that he was ineffectively assisted by his trial counsel. A defendant must prove that his counsel's assistance was ineffective by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). In determining the effectiveness of counsel, the test is whether, considering the totality of the circumstances viewed at the time of counsel's conduct, (1) the assistance was reasonably effective, and (2) if the assistance was ineffective, whether the defendant was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674 (1984); Miller v. State, 728 S.W.2d 133, 134 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd). Furthermore, there exists a strong presumption that the attorney's conduct falls within the wide range of reasonable professional assistance. Id.
Appellant was indicted in three cases. His trial counsel filed a motion for discovery and inspection of evidence in all three cases. He was active in challenging prospective jurors for cause, and in making objections throughout the trial. Specifically, each time the State attempted to introduce into evidence an item seized from Appellant's van, he objected that the item was seized in violation of Appellant's constitutional rights.
Appellant points to three examples of what he claims was ineffective assistance: (1) allowing his prior conviction to be brought before the jury although the court had previously ruled that it was not final; (2) allowing the prosecutor to make improper arguments during the punishment phase; and (3) failing to object to his cross-examination by the State. The State explains that when Appellant was asked whether he had any final convictions, he answered "yes." Therefore, the defense strategy became making Appellant, who answered the question incorrectly and then changed his mind, a credible witness. Furthermore, a possible trial strategy could have been to let the prosecutor argue without unnecessary interruption because constant interruption makes Appellant look as if he has something to hide.
In light of the record as a whole, Appellant has failed to meet his burden of proving that his counsel's assistance was not reasonably effective. See Miller, 728 S.W.2d at 134. The tenth point is overruled. The judgment is affirmed.
BOB L. THOMAS
DO NOT PUBLISHChief Justice