Affirmed and Memorandum Opinion filed March 16, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00340-CR
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SHEPHERD H. SHEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 7
Harris County, Texas
Trial Court Cause No. 5431
M E M O R A N D U M O P I N I O N
Following a jury trial, the municipal court found appellant guilty of speeding and assessed a fine of $200. Appellant appealed his conviction to the county court at law, which affirmed the conviction. Appellant now appeals that decision. We affirm.
While driving to work, appellant was stopped for speeding on Park Row Boulevard in Houston. The police officers who stopped appellant testified he was driving fifty miles per hour in a thirty-five mile per hour speed zone.
In addressing appellant=s appeal, we review those points appellant raised before the reviewing county court at law. See Tex. Gov=t Code Ann. ' 30.00027 (record and briefs on appeal in county court at law constitute record and briefs on appeal to court of appeals). In his first issue, appellant contends that the trial court erred in denying his motion to quash the complaint because the complaint did not track the speeding ordinance. Appellant contends that he moved to quash the complaint in the municipal court because the complaint alleges the offense occurred on APark Row Boulvard,@ instead of APark Row Boulevard.@ Specifically, appellant contends that because the street name was misspelled in the indictment, the complaint did not state an offense for which appellant could prepare a defense. Appellant first complained of the misspelling in his motion for new trial.
In the municipal court, if the defendant does not object to a defect, error, or irregularity of form or substance in a charging instrument before the date on which the trial on the merits commences, the defendant waives and forfeits the right to object to the defect, error, or irregularity. Tex. Code Crim. Proc. Ann. art. 45.019(f). Because appellant failed to file a motion to quash prior to trial, he has waived his right to object to the complaint. Appellant=s first issue is overruled.
In his second issue, appellant contends that the trial court erred in denying his motion to transfer the case to Municipal Court No. 1 because that court was the court in which the complaint was filed. Relying on article 4.16 of the Texas Code of Criminal Procedure, appellant argues that the conviction is void for want of jurisdiction. Article 4.16 provides, AWhen two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or a complaint shall first be filed shall retain jurisdiction except as provided in Article 4.12.@ Article 4.12 provides that a misdemeanor case is to be tried in justice court in the precinct in which the offense was committed or in the precinct in which the defendant or any of the defendants reside. Tex. Code Crim. Proc. Ann. art. 4.12(a). Article 4.12 is a venue requirement and is not jurisdictional in nature. Bradley v. Swearingen, 525 S.W.2d 280, 282 (Tex. Civ. App.CEastland 1975, no writ).
Appellant argues that because pretrial motions were made in Municipal Court No. 1, Municipal Court No. 8 does not have jurisdiction. The record, however, does not reflect any pretrial motions made in Court No. 1. The municipal court judge investigated the record prior to trial in the municipal court and found no record of pretrial motions being heard in Court No. 1. Article 4.12 provides that misdemeanor cases are to be tried in the precinct where the offense was committed or where the defendant resides. Appellant presented no evidence that the case was not tried in either the precinct where it was committed or the precinct of the defendant=s residence. Further, article 4.12 is not jurisdictional. Bradley, 525 S.W.2d at 282. Therefore, even if the trial court erred in failing to transfer the case, appellant=s conviction would not be void for want of jurisdiction. Appellant=s second issue is overruled.
In his third issue, appellant contends that the trial court erred in erroneously denying his challenges for cause. Appellant challenged jurors four and fourteen for cause because they stated they would tend to lean more toward a police officer=s testimony because of his or her position as an officer. Juror number fourteen was not reached, so our analysis will be limited to juror number four. At appellant=s request, the trial court questioned juror number four about whether he would give more credibility to a police officer simply because the officer was in uniform. Juror number four answered that he would give the officer more credibility, but that he could listen to the facts of the case and weigh the evidence equally. The trial court denied appellant=s challenge for cause. Appellant used a peremptory challenge to strike juror number four from the panel, then used two more strikes, thereby exhausting his peremptory challenges. Appellant did not request additional peremptory challenges, and he did not complain of the trial court=s ruling until after trial in his motion for new trial.
Harm from the erroneous denial of a defense challenge for cause occurs (1) when a defendant exercises a peremptory challenge on a veniremember whom the trial court erroneously failed to excuse for cause at the defendant=s request, (2) the defendant uses all of his statutorily allotted peremptory challenges, and (3) the defendant was denied a request for an additional peremptory challenge, which he claims he would use on another veniremember whom the defendant identifies as objectionable, and who actually sits on the jury. Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App. 2004). When these conditions are met, the defendant is harmed because he had to use a peremptory challenge to remove a veniremember who should have been removed for cause. See Johnson v. State, 43 S.W.3d 1, 6 (Tex. Crim. App. 2001). In this case, appellant did not request an additional peremptory challenge. By failing to make such a request, appellant failed to give the trial court an opportunity to correct its error prior to trial. Because appellant failed to request an additional peremptory challenge, he can show no harm from the denial of the challenge for cause. See id. at 7. Appellant=s third issue is overruled.
In his fourth issue, appellant contends that the trial court denied him a fair trial by intimidating appellant=s counsel. Prior to the voir dire examination, appellant moved to transfer the case to Municipal Court No. 1 and claimed that the transfer was necessary because pretrial motions had been heard in Court No. 1. Outside the presence of the veniremembers, the municipal court judge made the following comments:
THE COURT: Prior to voir dire you made a motion on the record averring that there were motions on this complaint made in Court 1. And you also asked for a motion for transfer up to Court 1 based on that reason. I found at that time it was a frivolous motion B or at least a ridiculous motion.
And I have now reviewed the Court=s file. And there is no evidence whatsoever of any motion being made before Judge Casanova. Even worse than just being ridiculous, it is absolutely a frivolous motion.
This would be conduct that is sanctionable under the Rules of Conduct. It is sanctionable in a court of law.
You will not get sanctioned today. But do not ever misrepresent a file like that to me again. Don=t make frivolous B
MS. VO [defense counsel]: But Judge B
THE COURT: B and ridiculous motions. There=s nothing here.
MS. VO: Basically, what B
THE COURT: And if you=re going to make motions based on motions, you=ve got to have something to back it up.
MS. VO: Basically, what we were saying is that the pretrial was held in Court 1.
THE COURT: No. You told me there were motions that were made in Court 1 on this case. There is no reference to that. And that=s not going to happen.
MS. VO: Okay.
THE COURT: Now, that=s B I wanted that on the record to clarify that point. Don=t do it again.
Appellant claims the trial court=s reprimand of defense counsel violated the due process clause of the United States Constitution and the Texas Constitution. See U.S. Const. amend. VI; Tex. Const. art. I, ' 19. In briefing this issue, appellant cites Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972) for the proposition that it is reversible error for a judge to intimidate a witness. Appellant cites no authority to support his contention that he was denied due process because his counsel was intimidated.
A defendant is denied due process if the judge, in fact, treats him unfairly. Margoles v. Johns, 660 F.2d 291, 295 (7th Cir. 1981); Ex parte Brandley, 781 S.W.2d 886, 894 (Tex. Crim. App. 1989). Appellant presented no evidence that he was treated unfairly. The record does not reflect appellant=s due process rights were violated. Appellant=s fourth issue is overruled.
In his fifth issue, appellant contends that the conviction should be reversed because the jury did not render a unanimous verdict. After reading and accepting the jury=s verdict, the court asked the jurors if they had any questions about what occurred. One juror responded that he or she Ahad a suggestion, but they wouldn=t accept it.@ The juror then explained, AI figured he should have had community service with troubled children.@ Appellant argues the trial court should have returned the jury for further deliberation.
Article 37.04 of the Texas Code of Criminal Procedure provides that when the jury agrees on a verdict, is brought back into court, and states that it so agreed, the verdict is to be read aloud. If the verdict is in proper form, no juror dissents, and neither party requests that the jury be polled, the verdict must be entered in the court=s minutes. See Wood v. State, 87 S.W.3d 735, 739 (Tex. App.CTexarkana 2002, no pet.). In this case, the juror=s remarks were made after the verdict was accepted, and no jury poll was requested. By failing to request a jury poll or object to the trial court=s failure to require further deliberation, appellant failed to preserve error. See Tex. R. App. P. 33.1. Appellant=s fifth issue is overruled.
In his sixth issue, appellant contends that the evidence is legally insufficient to support his conviction because the proof did not match the complaint. Specifically, appellant argues that because the complaint misspelled ABoulevard,@ the evidence was insufficient to show the speed limit on Park Row Boulevard was thirty-five miles per hour.
A variance between a charging instrument and the proof at trial will be fatal to a conviction only if it is material. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). A variance is material if it prejudices the defendant=s substantial rights. Id. A defendant=s substantial rights are prejudiced if (1) the charging instrument failed to inform the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, or (2) the charging instrument would subject the defendant to the risk of being prosecuted later for the same crime. Id. at 248.
There is no indication in the record that appellant was not sufficiently informed of the charge against him or that he was surprised by the proof at trial. Nor is appellant in danger of being prosecuted again for the same speeding offense. The entire record is examined for double jeopardy purposes, not just the charging instrument. Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998). The record is clear that appellant was stopped for speeding on Park Row Boulevard and was convicted of speeding on Park Row Boulevard. The misspelling of ABoulevard@ did not substantially prejudice appellant=s rights at trial. Appellant=s sixth issue is overruled.
The judgment of the trial court is affirmed.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed March 16, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).