Affirmed and Memorandum Opinion filed December 1, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00722-CR
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YOLANDA NINO LEIJA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 963,517
M E M O R A N D U M O P I N I O N
Appellant, Yolanda Nino Leija, was convicted by a jury of third offender theft. The trial court assessed punishment at two years in the Texas Department of Criminal Justice, State Jail Division. We affirm.
On October 1, 2003, Jesus Rivera, a loss prevention investigator for Home Depot Stores, observed appellant enter the store located in Webster, Texas with two companionsCa male and a female. The three persons split up, with appellant pushing the shopping cart. Appellant went toward the Aseasonal@ area and placed a fireplace tools set in the cart, and then went over to the lighting aisle where she met her male companion, who placed a ceiling fan in the cart. After placing two lighting fixtures in the cart, appellant left the shopping cart with the man and then headed toward the faucet aisle and met up with her female companion.
Appellant and the other woman selected faucets and placed them on the floor. While her companions placed the faucets in the shopping cart, appellant moved over to the hardware department/knob aisle where she selected a large number of cabinet knobs and placed them in her purse. After appellant had finished selecting and concealing cabinet knobs, she headed towards her companions in the main aisle. Her male companion had already selected five gallons of paint and some cleaning supplies.
The three of them headed toward the front of the store, and appellant placed her purse in the shopping cart. Appellant and the other woman approached the head cashier at the front of the store, apparently asking the cashier where something was located because the cashier pointed to another location in the store. While the cashier was distracted, the male companion exited the store with the shopping cart.
Rivera moved to detain the man once he exited the store, but he was not able to do so because the man fled across I-45. By that time, Rivera had already contacted the Webster police. The Webster police arrived and apprehended appellant and the other woman in the parking lot. They found 65 knobs in appellant=s purse. The total value of the merchandise appellant and her accomplices attempted to steal was $932.62 before taxes.
In her first point of error, appellant claims she was denied her constitutional right to be tried by an impartial tribunal. In her second point of error, appellant contends the trial court abused its discretion at the punishment hearing by considering her failure to accept the plea bargain offers made before trial. The record reveals that three plea bargain offers were made to appellant: (1) 12 months in state jail on November 6, 2003, (2) one year in state jail on January 6, 2003, and (3) 15 months in state jail on February 12, 2004. At the sentencing hearing, the trial judge stated to appellant:
The Court is considering your prior record. You have been through the system several times. You had several felony convictions, gone to State jail. You=ve had probation, which has been revoked and you were born in 1960; so, you=re some 40, almost 44 years old and haven=t learned a lesson yet. And you know the last couple times you=ve gotten six months State jail and you=ve had all kinds of breaks. And I think there were offers made in the case before the facts came out that you didn=t want to even consider, but considering this, I think this is exactly the kind of case that calls for the maximum punishment. I=m assessing your punishment at two years in the State jail facility.[1]
Appellant argues the trial court=s comments revealed a bias against the full range of punishment which prevented it from weighing the sentencing evidence in an objective way. The trial court denies due process of law and due course of law when it arbitrarily refuses to consider the full range of punishment for an offense or refuses to consider the evidence and imposes a predetermined sentence. McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983), overruled on other grounds by De Leon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004); Teixeira v. State, 89 S.W.3d 190, 192 (Tex. App.CTexarkana 2002, pet. ref=d); Cole v. State, 931 S.W.2d 578, 579B80 (Tex. App.CDallas 1995, pet. ref=d). The defendant, however, can waive complaints of due process violations by failing to object in the trial court to its failure to consider the full range of punishment or the evidence. Eddie v. State, 100 S.W.3d 437, 441 (Tex. App.CTexarkana 2003, pet. ref=d); Washington v. State, 71 S.W.3d 498, 499B500 (Tex. App.CTyler 2002, no pet.); Cole, 931 S.W.2d at 580. Appellant failed to object at the time the trial court made its comment during sentencing, thereby waiving any complaint on appeal.
However, relying on the Texas Court of Criminal Appeals= plurality opinion in Blue v. State, appellant asserts the trial court=s stated reasons for assessing the maximum punishment revealed a lack of impartiality amounting to structural error, for which no objection is necessary to preserve error. 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.). In Blue, the trial court said to the jury:
[This case], which we are going on, is a situation where the attorney has been speaking to his client about what does he want to do. And when you are on the button like these cases, it's a question. Frankly, an offer has been made by the State or do I go to trial. And he has been back and forth so I finally told him I had enough of that, we are going to trial. You have been sitting out here and this is holding up my docket and I can't get anything done until we know if we are going to trial or not.
Frankly, obviously, I prefer the defendant to plead because it gives us more time to get things done and I'm sure not going to come out here and sit. Sorry, the case went away and we were all trying to work toward that and save you time and cost of time, which you have been sitting here and I apologize about that. I told the defendant that. Like I said, I have enough of this and going to trial.
Id. at 130. The plurality court concluded the trial court=s comments imparted information to the venire that tainted the presumption of innocence. Id. at 132. Such comments were fundamental error of constitutional dimension, requiring no objection. Id. In a concurring opinion, Judge Keasler stated he believed the trial judge=s comments could be reasonably interpreted as a predetermination of the defendant=s guilt, thereby implicating the right to an impartial judge. Id. at 138 (Keasler, J., concurring).
As a plurality opinion, however, Blue is not binding precedent. Jasper v. State, 413, 421 (Tex. Crim. App. 2001); Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Even if Blue were binding, the trial court=s comments in this case do not rise to the level in that case. In Blue, the trial court complained to the jury that the defendant had been holding up his docket and he wished the defendant would plead guilty, suggesting that he believed the defendant was guilty. 41 S.W.3d at 130. Here, the trial court=s comment was no made in front of the jury, but, instead, was made to the defendant after appellant had been found guilty by a jury. Moreover, in assessing appellant=s sentence, the trial court specifically emphasized appellant=s previous convictions, that at her age she had not Alearned a lesson yet,@ and that she had had Aall kinds of breaks,@ not that she had failed to accept a plea bargain.
Appellant, however, claims the trial court=s alleged bias against her for not accepting a plea bargain is further evidenced by (1) its apology to the members of the venire panel for keeping them waiting in the hallway, explaining that the court had Ahad an extremely busy morning. We=ve had many cases, many pleas. We=ve even taken pleas from other courts@; and (2) its comment just after the conclusion of the charge conference and immediately before closing arguments, Awe can go ahead and do the arguments then. You=re going to rest and close. And let=s get [appellant] up here, and apparently we did not have any pleas, right?@[2]
In its comment to the venire panel, the trial court did not mention appellant. In its comment just prior to closing, the trial court was merely confirming that there had been no guilty plea in this case. Even when considered with the trial court=s other references to Apleas,@ its comment to appellant during sentencing does not show it failed to consider the full range of punishment or that the two-year sentence was a predetermined sentence. Appellant=s first and second points of error are overruled.
In her third point of error, appellant asserts the trial court abused its discretion by overruling her objection to her custodial statements which did not comply with Article 38.22 of the Texas Code of Criminal Procedure.[3] Prior to opening statements, the following exchange among the trial court, defense counsel, and the prosecutor took place:
MR. VINAS [The State=s Attorney]: Your Honor, for the record, could I -- I=d like to in limine on two issues. Well, these are the witnesses but basically there is a co-defendant that made statements to these folks and unless she shows up I=m asking the Court to instruct the witnesses not to mention anything the co-defendant said or the co-actor.
THE COURT: I don=t know if that=s an agreement, but we have not talked about it.
MR. MARTINEZ [Appellant=s Counsel]: I=m filing a Motion in Limine.
MR. VINAS: If it becomes relevant, I will approach before offering the statement of co-actors.
THE COURT: There may be hearsay, but, yeah, if you=re going to, try to bring that in, I instruct the witnesses not to bring that up until you approach the bench. Just don=t state what the co-defendant said unless Mr. Vinas approaches the bench and gets approval to do that.
MR. MARTINEZ: Yes, sir. She made a statement. I don=t think it=s incriminatory, but I would appreciate anything that=s made about the statement that we have a 38.23. I don=t think it=s an admission, but I still don=t think it=s admissible.
THE COURT: I don=t know whether it was an in-custody statement or what the circumstances were.
MR. VINAS: I=ve spoken to the officer about it. She was detained. It was a verbal statement. It was not a confession. Basically she said she didn=t know the other male defendant and obviously she had been seen with him before. So it wasn=t in custody at all.
THE COURT: Not in custody. It might be admissible if they=re investigating and she didn=t know him.
MR. VINAS: She=s not in the squad car. So, 38. 22 do [sic] not apply.
THE COURT: Is that the only statement we=re talking about?
MR. VINAS: Yes, Your Honor.
THE COURT: I think I=ll let that in.
MR. MARTINEZ: All right, Judge.
During the presentation of the State=s case, a Webster Police officer, who answered a call at the Home Depot store, testified that appellant said she did not know the man with whom she was seen in the store. Appellant complains that, in his closing argument, the prosecutor suggested appellant=s denial to the police that she knew the man was a lie which incriminated her. Appellant argues error was preserved by her attorney=s objection prior to the presentation of the State=s case because it was specific enough to let the trial court know that the objection was based on Article 38.22.
However, appellant never preserved the issue for review because counsel never objected to the admission of appellant=s statement. Appellant=s Aobjection@ was, at best, no more than a motion in limine, and it is well established that a motion in limine preserves nothing for review. Mann v. State, 122 S.W.3d 171, 190 (Tex. Crim. App. 2003). A motion in limine is defined as a procedural device that permits a party to identify, before trial, certain evidentiary rulings that the court may be asked to make so as to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury. Onstad v. Wright, 54 S.W.3d 799, 805 (Tex. App.CTexarkana 2001, pet. denied). Thus, a ruling on a motion in limine does not purport to be one on the merits but one regarding the administration of the trial. Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.CAustin 2000, pet. ref=d). Here, the trial court incongruously responded to appellant=s motion in limine with, AI think I=ll let that in.@ Whether the trial judge intended her statement to be a ruling on the merits of the issue or simply a prognostication on a possible future ruling is unclear. In any event, it was appellant=s burden to obtain an adverse ruling by clarifying whether the court was ruling on the merits, suggesting a probable ruling based on the prosecutor=s recitation of the facts, or merely denying a motion in limine.
Moreover, even if appellant had properly preserved the issue for review, her contention would have no merit. Officer Beaton, of the Webster Police Department, testified that appellant=s statement was made while appellant was being detained, and prior to her arrest. The non-custodial nature of the statement seems to have been accepted by all parties as Beaton was not challenged or cross-examined on this issue, and no evidence was offered to show appellant had, in fact, been arrested before she uttered the statement at issue. Statements made to police by persons who have been temporarily detained are non-custodial in nature and, thus, admissible. Hernandez v. State, 107 S.W.3d 41, 47B48 (Tex. App.CSan Antonio 2003, pet. ref=d); State v. Waldrop, 7 S.W.3d 836, 839 (Tex. App.CAustin 1999, no pet.). Accordingly, appellant=s third point of error is overruled.
In her fourth point of error, appellant complains the amended indictment failed to charge her with a criminal offense and thus failed to vest the trial court with jurisdiction. In her fifth point of error, appellant complains structural error occurred when the trial was conducted on the original indictment which had been superseded by a defective amended indictment.
On April 5, 2004, the State filed a motion for leave to amend the indictment. The motion also set out the text of the of the proposed amended indictment.[4] Appellant argues the amended indictment failed to charge her with an offense and, therefore, the trial court was without jurisdiction to proceed to trial. Appellant argues that by setting forth the text of the amended indictment in its motion and serving a copy on defense counsel, the State effectively amended the original indictment.
Contrary to appellant=s assertion, the State=s motion for leave to amend the indictment and the trial court=s order granting leave do not comprise the amended indictment. Pursuant to Articles 28.10 and 28.11 of the Texas Code of Criminal Procedure, the State is provided with the opportunity to amend an indictment. Tex. Code Crim. Proc. Ann. arts. 28.10B.11 (Vernon 1989). However, A[n]either the motion [to amend] itself nor the trial judge=s granting thereof is the amendment; rather, the two compromise the authorization for the eventual amendment of the charging instrument pursuant to Art. 28.10.@ Ward v. State, 829 S.W.2d 787, 793 (Tex. Crim. App. 1992), overruled on other grounds by Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) (emphasis in original). AIt is acceptable for the State to proffer, for the trial court=s approval, its amended version of a photocopy of the original indictment.@ Riney, 28 S.W.3d at 565. The clerk=s record contains the original indictment and the amended indictment, which apparently is a photocopy of the original with physical interlineationsCan acceptable method of amending an indictment under Riney.
Moreover, pursuant to Article V, Section 12 of the Texas Constitution, A[t]he presentment of a an indictment or information invests the court with jurisdiction of the cause.@ Tex. Const. art. V, ' 12(b). Therefore, once an indictment is presented, jurisdiction vests and any later discovered defect in the indictment does not divest the court of jurisdiction. Carrillo v. State, 2 S.W.3d 275, 277 (Tex. Crim. App. 1999). Appellant=s fourth and fifth points of error are overruled.
Accordingly, the judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed December 1, 2005.
Panel consists of Justices Hudson, Frost, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Emphasis added.
[2] Emphasis added.
[3] Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).
[4] The State=s motion for leave reads in its entirety:
COMES NOW the State of Texas, by and through it Assistant District Attorney, Kelly Blackburn, and moves the court for leave to amend the indictment in the above styled and numbered cause.
I.
The State requests Indictment to be amended in the following manner: In the second paragraph of the indictment, the date of offense be changed to February 5, 2003, in place of February 3, 2003.
II.
So that, being amended, and omitting the formal parts, the first and third paragraphs on the indictment herein shall read as follows: . . . Before the commission of the primary offense on February 5, 2003, in Cause No. 09030501, in the 180th District Court of Harris County, Texas, the Defendant was convicted of the Felony offense of Theft.