Opinion filed September 26, 2013
In The
Eleventh Court of Appeals
__________
No. 11-11-00242-CR
__________
MICHAEL GEIGER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause No. 09-6938
MEMORANDUM OPINION
The jury convicted Michael Geiger of assault on a public servant and
assessed his punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for life. Appellant challenges his conviction in
nine issues. We affirm.
Background Facts
Appellant assaulted Mario McDaniel, a correctional officer at the Smith Unit
of the Texas Department of Criminal Justice (TDCJ) located in Dawson County,
by kicking him in the groin and head-butting him. The assault occurred when
Officer McDaniel and two more officers entered Appellant’s cell in order to
conduct a search of his cell. The assault occurred when Officer McDaniel entered
the cell. Appellant admitted at trial to assaulting Officer McDaniel. He claimed
that he acted in self-defense based on prior interactions between himself and prison
officials and that the correctional officers’ conduct constituted entrapment.
Analysis
In his first issue, Appellant complains of several alleged irregularities
regarding “the complaint, information and affidavits” to the extent that they were
misleading to the grand jury. Among other things, he contends that they were
deficient because they were not filed by the actual victim of the offense, were not
sworn under oath, and were not reduced to writing. Appellant’s first issue also
addresses complaints concerning the qualifications of the prosecutor (see Issue
No. 2 below). Appellant is essentially challenging the manner in which the
criminal case was instituted. We first note that the record does not contain the
“complaint, information and affidavits” that Appellant is challenging. An appellant
must present a record showing error requiring reversal. See Amador v. State, 221
S.W.3d 666, 675 (Tex. Crim. App. 2007); Word v. State, 206 S.W.3d 646, 651–52
(Tex. Crim. App. 2006); Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim.
App. 2003) (“It is, however, the appealing party’s burden to ensure that the record
on appeal is sufficient to resolve the issue he presents.”). The record on appeal is
not sufficiently developed for us to address Appellant’s complaint. Furthermore,
Appellant was charged by an indictment returned by the grand jury. There is no
statutory requirement for a prosecutor to file a complaint or information before a
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grand jury issues an indictment. Ferguson v. State, 335 S.W.3d 676, 682 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). We overrule Appellant’s first issue.
In his second issue, Appellant complains of the appearance of a member of
the special prosecution unit as the prosecutor at trial in place of the duly elected
district attorney for Dawson County. The Texas Constitution states that elected
officials are permitted to prosecute criminal offenses. See TEX. CONST. art. V,
§ 21. Nonetheless, elected district and county officials are permitted to employ
other attorneys to prosecute cases. TEX. GOV’T CODE ANN. § 41.302 (West Supp.
2012). The courts have also determined that “[a] ‘special prosecutor’ is permitted
by the elected district attorney to participate in a particular case to the extent
allowed by the prosecuting attorney, without being required to take the
constitutional oath of office.” State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex.
Crim. App. 1993) (Clinton, J., concurring). Finally, the Court of Criminal Appeals
has specifically stated that the special prosecution unit has the authority necessary
to prosecute inmate offenses. Ex parte Jones, 97 S.W.3d 586, 589 (Tex. Crim.
App. 2003). Accordingly, a member of the special prosecution unit had the
authority necessary to prosecute Appellant. Appellant additionally asserts that the
special prosecutor withheld video evidence from him. However, there is evidence
that no video of the incident existed. Accordingly, we overrule Appellant’s second
issue.
In his third issue, Appellant complains that the trial court erred in not
awarding him attorney’s fees for representing himself. This complaint is without
merit. The Tyler Court of Appeals recently determined that indigent defendants
who choose to represent themselves are not “appointed” under Article 26.04 and
are not included in the category of persons who are entitled to an award of
“attorney’s fees” under Article 26.05. In re Kennedy, No. 12-12-00203-CR, 2012
WL 2344472 (Tex. App.—Tyler June 20, 2012, orig. proceeding) (mem op., not
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designated for publication); see TEX. CODE CRIM. PROC. ANN. arts. 26.04, 26.05
(West Supp. 2012). We overrule Appellant’s third issue.
In his fourth issue, Appellant complains that the State withheld evidence
from discovery. We first note that a criminal defendant’s right to discovery under
the United States Constitution is limited to exculpatory or mitigating evidence in
the State’s possession, custody, or control. In re State, 162 S.W.3d 672, 676 (Tex.
App.—El Paso 2005, orig. proceeding). Beyond this, a criminal defendant has no
general right of discovery. Id. The record reflects that Appellant presented his
contentions to the trial court regarding the State allegedly withholding evidence.
In each instance, the trial court heard evidence from the prosecutor indicating that
the matters requested by Appellant did not exist. We conclude that the trial court
did not abuse its discretion in determining that the matters did not exist and that the
State did not willfully withhold production of evidence. See Oprean v. State, 201
S.W.3d 724, 726 (Tex. Crim. App. 2006) (Decisions to admit or exclude evidence
are reviewed under an abuse of discretion standard.). Moreover, Appellant does
not complain of the admission of any evidence withheld from him. Id. (Evidence
willfully withheld from disclosure under a discovery order should be excluded.).
We overrule Appellant’s fourth issue.
In his fifth issue, Appellant contends that the trial court erred in failing to
dismiss the criminal charges against him prior to trial based upon his allegation of
entrapment. We disagree. Entrapment is a defense to prosecution. TEX. PENAL
CODE ANN. § 8.06(a) (West 2011). The entrapment defense is unusual in that it
may be tested and determined in a pretrial hearing. See CRIM. PROC. art. 28.01,
§ 1(9) (West 2006). This procedure is disfavored because it results in a piecemeal
trial. Hernandez v. State, 161 S.W.3d 491, 498 (Tex. Crim. App. 2005). The
defendant bears the burden of establishing entrapment as a matter of law with
conflict-free, uncontradicted, uncontested, or undisputed evidence. Id. at 499. If
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the trial court denies the motion, our standard of review on appeal is de novo. Id.
at 500. We affirm if any rational trier of fact could have concluded that the
undisputed facts failed to establish all of the elements of entrapment. Id.
The elements of entrapment are (1) the defendant engaged in the conduct
charged (2) because he was induced to do so by a law enforcement agent (3) who
used persuasion or other means, and (4) those means were likely to cause persons
to commit the offense. Id. at 497. Entrapment includes both a subjective and an
objective component: the defendant must show both that he was actually induced
to commit the charged offense and that the persuasion was such as to cause an
ordinarily law-abiding person of average resistance to commit the crime.
England v. State, 887 S.W.2d 902, 913–14 (Tex. Crim. App. 1994). “Conduct
merely affording a person an opportunity to commit an offense does not constitute
entrapment.” PENAL § 8.06(a).
We conclude that Appellant failed to establish entrapment as a matter of law.
As later developed at trial, Appellant premised his entrapment contentions on
previous assaults that allegedly occurred against him in prison and on instances
wherein his personal property had been taken or destroyed. He also alleged that
prison officials induced him to commit an assault by not complying with his
request for a supervisor and camera equipment to be present whenever his cell was
searched. He additionally alleged that he was induced to commit the assault
because Officer McDaniel was not assigned to work Appellant’s wing in the
prison.1 Viewed objectively, the conduct relied upon by Appellant would not have
caused an ordinarily law-abiding person of average resistance to commit the crime.
We overrule Appellant’s fifth issue.
1
The record reflects that Officer McDaniel was working overtime when the assault occurred and
that he had been assigned to Appellant’s wing during his overtime shift.
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In his sixth issue, Appellant complains of the racial composition of the jury
venire. He argues that he was deprived of his constitutional right to a jury drawn
from a representative cross section of the community. To satisfy the federal Sixth
Amendment right to a jury trial, the jury must be chosen from a panel representing
a fair cross section of the community. Duren v. Missouri, 439 U.S. 357, 359
(1979); Castaneda v. Partida, 430 U.S. 482, 494 (1977). In Pondexter v. State,
942 S.W.2d 577, 580 (Tex. Crim. App. 1996), the court held that, to establish a
prima facie violation of that requirement, an appellant must show that (1) the group
alleged to be excluded is a “distinctive” group in the community, (2) the
representation of this group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community, and (3) this
under-representation is due to the systematic exclusion of the group in the jury
selection process. Appellant has failed to meet the second and third prongs of the
test. Nothing in the record is actually sufficient to show the racial composition of
the panel. Moreover, there is nothing to show the requisite “systematic exclusion”
of particular racial groups in the county of trial. A disproportionate representation
in a single panel is not sufficient to demonstrate an unconstitutional systematic
exclusion of distinctive racial groups. Pondexter, 942 S.W.2d at 581. We overrule
Appellant’s sixth issue.
In his seventh issue, Appellant challenges the indictment because its return
was allegedly based on hearsay testimony. Appellant’s contention is without
merit. If an indictment is valid on its face, a party may not go behind the
indictment to review alleged procedural errors in its presentment. DeBlanc v.
State, 799 S.W.2d 701, 706 (Tex. Crim. App. 1990); Dean v. State, 749 S.W.2d 80
(Tex. Crim. App. 1988); Carr v. State, 600 S.W.2d 816, 817 (Tex. Crim. App.
1980); Tarpley v. State, 565 S.W.2d 525, 532 (Tex. Crim. App. 1978).
Furthermore, when determining whether to present an indictment, a grand jury is
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not limited to evidence that would be admissible at trial. See Ex parte Thomas,
956 S.W.2d 782, 786 (Tex. App.—Waco 1997, no pet.). We overrule Appellant’s
seventh issue.
In his eighth issue, Appellant appears to be complaining that the trial court
denied him access to the court system by not protecting his property and evidence
from being allegedly taken or destroyed by prison officials. It does not appear that
Appellant preserved this complaint for appellate review. Furthermore, Appellant
has not cited any authority requiring the trial court to intercede on his behalf with
prison officials. We overrule Appellant’s eighth issue.
In his ninth issue, Appellant alleges that the sitting district judge, Honorable
Carter T. Schildknecht, had a conflict of interest. This contention is without merit
because the regional presiding judge appointed Honorable Jay Gibson
approximately four months after Appellant was indicted, and Judge Gibson
presided over all subsequent proceedings. We overrule Appellant’s ninth issue.
This Court’s Ruling
We affirm the judgment of the trial court.
TERRY McCALL
JUSTICE
September 26, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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