ACCEPTED
03-14-00733-CR
4396093
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/6/2015 10:35:55 AM
JEFFREY D. KYLE
No. 03‐14‐00733‐CR CLERK
FILED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas 3/6/2015 10:35:55 AM
JEFFREY D. KYLE
Clerk
WESLEY PERKINS,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On appeal from the County Court‐at‐Law Number Three,
Travis County, Texas
Trial Cause No. C‐1‐CR‐13‐200882
STATE’S BRIEF
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
GISELLE HORTON
ASSISTANT TRAVIS COUNTY ATTORNEY
State Bar Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512)854‐9415
TCAppellate@traviscountytx.gov
March 6, 2015 ATTORNEYS FOR THE STATE OF TEXAS
ORAL ARGUMENT IS NOT REQUESTED
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TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE STATE’S ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Reply Point One: Perkins presents nothing for review. . . . . . . . . . . . . . 3
Reply Point Two: The trial court was vested with subject‐matter
and personal jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Reply Point Three: Article 25.04 of the Texas Code of Criminal
Procedure does not violate Due Process. . . . . . . . . . . . . . . . . . . . . . . . . 6
Reply Point Four: Commercial “transportation” is not an
element of the charged offense, as Perkins contends. . . . . . . . . . . . . . . 7
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ii
INDEX OF AUTHORITIES
Constitutional Provision Page
TEX. CONST. art. V § 12(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Statutes
TEX. CODE CRIM. P. art. 25.04
(West Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEX. TRANSP. CODE § 521.457(a)
(West Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TEX. TRANSP. CODE § 521.457(a)(2)
(West Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TEX. TRANSP. CODE § 521.457(f)(2)
(West Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TEX. TRANSP. CODE § 601.191
(West Supp. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Rules
TEX. R. APP. P. 38.1(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Cases
Adcock v. State, 152 Tex. Crim. 194
212 S.W.2d 175 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Busby v. State, 253 S.W.3d 661
(Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Davis v. State, 329 S.W.3d 798
(Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iii
Ethridge v. State, 76 Tex. Crim. 473
175 S.W. 702 (1915) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Gilley v. State, 418 S.W.3d 114
(Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Lucio v. State, 351 S.W.3d 878
(Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Ramirez v. State, 105 S.W.3d 628
(Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Teal v. State, 230 S.W.3d 172
(Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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STATEMENT OF THE CASE
The State charged Perkins by information with driving while license
invalid, a Class B misdemeanor, alleged to have occurred on January 15,
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2013. CR 13. Just over a year and a half later, a jury found him guilty of
this offense. CR 189.
The trial court assessed punishment, and, on August 26, 2014,
sentenced Perkins to 45 days’ incarceration and a $2,000 fine, but
suspended imposition of this punishment and placed Perkins on
community supervision for two years. CR 195. As a condition of probation,
Perkins was required to obtain a valid driver’s license and insurance, and
to refrain from driving uninsured. CR 197.
Perkins tendered a new‐trial motion, which was filed on September
24, 2014. CR 202. Perkins gave notice of appeal on November 17, 2014 .
CR 234.
1 TEX. TRANSP. CODE § 521.457(a)(2), (f)(2) (West Supp. 2014). The information
alleges that Perkins operated a motor vehicle on a public road in Travis County after his
Class C license was suspended for driving without liability insurance, which § 601.191
prohibits. CR 14.
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BACKGROUND
After an Austin police officer pulled Perkins’s wife over for speeding,
Perkins drove to the scene, ostensibly to offer proof of automotive liability
insurance on his wife’s behalf. 4 RR 23, 28–30; 4 RR 51. At the time,
Perkins’s own driver’s license was suspended for failing to pay surcharges
resulting from his refusal to obtain liability insurance. 4 RR 37. The officer
arrested him (1) for driving with a suspended license, and (2) on
outstanding warrants for expired registration, lack of insurance, and
expired vehicle inspection. 4 RR 35.
ISSUES PRESENTED
The State has had some difficulty ascertaining Perkins’s contentions
in his thirty‐one points of error. In addition to addressing whether Perkins
presents anything for review, the State addresses the following, which
appear in the summary of Perkins’s argument:
• whether the trial court had subject‐matter and personal jurisdiction;
• whether article 25.04 of the Texas Code of Criminal Procedure
violates Perkins’s due process rights.
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• whether the evidence is legally insufficient to convict by reason of the
State’s failure to prove that Perkins was engaged in commercial
transportation.
SUMMARY OF THE STATE’S ARGUMENT
Perkins’s brief violates TRAP 38.1(i) and presents nothing for review
because it is neither clear nor concise, makes few appropriate cites to
authority, and is virtually incomprehensible.
If Perkins presents anything for review:
• Presentment of an information vested the trial court with subject‐
matter and personal jurisdiction.
• Rather than deprive defendants of due process, article 25.04 of the
Texas Code of Criminal Procedure guarantees it because it gives
defendants the right to timely notice of their charges.
• The prosecution had no reason to prove that Perkins was engaged in
commercial “transportation” because it is not an element of his
offense.
ARGUMENT
Reply Point One: Perkins presents nothing for review.
Rule 38.1(i) of the Texas Rules of Appellate Procedure requires an
appellant’s brief to contain “clear and concise argument for the contentions
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made, with appropriate citation to authorities and to the record.” TEX. R.
APP. P. 38.1(i) (emphasis added). But Perkins’s brief does not contain clear
and concise arguments, lacks appropriate citations to authorities, and
employs mystifying record citation form.
Rather than being clear and concise, his points are multifarious,
among other things. TEX. R. APP. P. 38.1(i); Davis v. State, 329 S.W.3d 798,
803 (Tex. Crim. App. 2010). For example, Perkins proclaims that the trial
court lacked personal jurisdiction over him. Perkins’s Brief, p. 9. Yet under
the “No Personal Jurisdiction” heading, he proceeds to challenge Article
25.04 on due process grounds, when it has nothing to do with personal
jurisdiction. Perkins’s Brief, pp. 9–10. In another instance, Perkins contends
that the trial court lacked subject‐matter jurisdiction, but then argues that
the evidence is insufficient. Perkins’s Brief, pp. 1–2. Courts may refuse to
review multifarious points. Gilley v. State, 418 S.W.3d 114, 119 n.19 (Tex.
Crim. App. 2014).
Perkins also fails to appropriately cite authorities. For instance, he
advances the astonishing and unsupported propositions that the offense he
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committed should be classified as a felony, and that the offense’s
classification as a misdemeanor violates public policy. Perkins’s Brief, pp.
46–48. To take another example, throughout his brief he insists—without
any legal authority whatsoever—that the offense he committed requires
proof of commercial “transportation. ”
Perkins’s virtually incomprehensible brief presents nothing for
review. Even in capital offense cases, courts are under “no obligation to
make [an] appellant’s arguments for [him].” Lucio v. State, 351 S.W.3d 878,
896 (Tex. Crim. App. 2011); Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim.
App. 2008).
The following reply points answer issues that Perkins included in his
summary of the argument, located on page 17 of his brief.
Reply Point Two: The trial court had subject‐matter and personal
jurisdiction over Perkins.
Both subject matter and personal jurisdiction are established when
the State presents an information to the trial court. TEX. CONST. art. V §
12(b); see also Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003)
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(“the mere presentment of an information to a trial court invests that court
with jurisdiction over the person of the defendant”) (emphasis added); Teal
v. State, 230 S.W.3d 172, 177 (Tex. Crim. App. 2007) (“[I]ndictments
charging a person with committing an offense, once presented, invoke the
jurisdiction of the trial court.”); Adcock v. State, 152 Tex. Crim. 194, 195, 212
S.W.2d 175, 175 (1948). An information is presented when it is filed with
the trial court. Ethridge v. State, 76 Tex. Crim. 473, 476, 175 S.W. 702, 703
(1915).
The State’s information, which was filed with the trial court, vested
the court with subject‐matter and personal jurisdiction. CR 13–14.
Reply Point Three: Article 25.04 of the Texas Code of Criminal
Procedure does not violate Due Process.
Under Article 25.04, in misdemeanors, “it shall not be necessary
before trial to furnish the accused with a copy of the indictment or
information; but he or his counsel may demand a copy, which shall be
given as early as possible.” TEX. CODE CRIM. P. art. 25.04 (West Supp. 2014).
Focusing only on the first (“it shall not be necessary to furnish”) portion of
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the statute, Perkins contends that this violates due process because it
deprives him of pre‐trial notice of the charges against him. Perkins’s Brief,
pp. 9–10.
Perkins ignores the latter portion of the statute, which clearly
requires that a defendant be given a copy of the charging instrument upon
demand. Rather than depriving Perkins of notice of the charges against
him, Article 25.04 guarantees it.
What’s more, the record shows that Perkins had notice of the charges
against him long before trial. The municipal judge made him aware of the
charge when he was arrested. CR 6. Perkins’s bond, which he signed,
clearly stated the charge against him. CR 9. And Perkins admitted knowing
what the charge was when he signed the form waiving an attorney. CR 12.
Reply Point Four: Proof of commercial transportation was not
required to convict, as Perkins contends.
Perkins contends throughout his brief that the offense he committed
requires proof of commercial “transportation” because his offense is
located in the Transportation Code. But the relevant statute does not
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require proof of commercial transportation. It requires only proof that he
“[operate] a motor vehicle.” TEX. TRANSP. CODE § 521.457(a) (West Supp.
2014). The term “transportation” is entirely absent from the statute under
which Perkins has been convicted. Id.
PRAYER
For these reasons, the Travis County Attorney, on behalf of the State
of Texas, asks this Court to overrule Perkins’s points of error and affirm the
judgment of conviction for driving while license invalid.
Respectfully submitted,
DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY
Giselle Horton
Assistant Travis County Attorney
State Bar Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512)854‐9415
TCAppellate@traviscountytx.gov
ATTORNEYS FOR THE STATE OF TEXAS
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CERTIFICATE OF COMPLIANCE
Relying on Corel WordPerfect’s word‐count function, I certify that
this document complies with the word‐count limitations of TEX. R. APP. P.
9.4. The document (counting all relevant parts under TRAP 9.4(i)(1))
contains 1721 words.
Giselle Horton
CERTIFICATE OF SERVICE
I certify that I have sent a complete and legible copy of this Stateʹs
Brief via electronic transmission, to Mr. Wesley Perkins, at
court@wesperkins.com, on or before March 6, 2015.
Giselle Horton
Assistant Travis County Attorney
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