ACCEPTED
01-13-00448-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/19/2015 6:35:59 PM
CHRISTOPHER PRINE
CLERK
Nos. 01-13-00447-CR & 01-13-00448-CR
In the
FILED IN
Court of Appeals 1st COURT OF APPEALS
For the HOUSTON, TEXAS
First Judicial District of Texas 2/19/2015 6:35:59 PM
At Houston CHRISTOPHER A. PRINE
Clerk
Nos. 1356098 & 1356099
In the 182nd District Court of
Harris County, Texas
SAMUEL ESPINOSA RODRIGUEZ
Appellant
v.
THE STATE OF TEXAS
Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON
District Attorney
Harris County, Texas
CARLY DESSAUER
Assistant District Attorney
WILLIAM COWARDIN &
CELESTE BYROM
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
Tel.: 713/755-5826
Fax No.: 713/755-5809
ORAL ARGUMENT NOT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of
Appellate Procedure 39.1, the State does not request oral argument but requests that
the State be allowed to present oral argument if this Court grants appellant’s request.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list of
the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson District Attorney of Harris County
Carly Dessauer Assistant District Attorney on appeal
William Cowardin Assistant District Attorney at trial
Celeste Byrom Assistant District Attorney at trial
Appellant or criminal defendant:
Samuel Espinoza Rodriguez (pro se)
Counsel for Appellant:
Harriet Sewell Shannon Standby attorney at trial
Trial Court:
Hon. Jay W. Burnett
Hon. Jim Anderson
ii
TABLE OF CONTENTS
Statement Regarding Oral Argument................................................................................... ii
Identification Of The Parties ................................................................................................ ii
Table Of Authorities ............................................................................................................. vi
Statement Of The Case .......................................................................................................... 1
Statement Of Facts ................................................................................................................. 1
Summary Of The Arguments ............................................................................................... 4
Reply To Appellant’s First Point Of Error ......................................................................... 6
I. The indictments in appellant’s cases properly bestowed the trial court
with jurisdiction over his offenses of aggravated assault with a deadly
weapon and evading arrest despite appellant’s arguments that the
complaints in his cases were in invalid. .................................................................... 6
a. The indictments issued by the grand jury provided the trial court
with jurisdiction over appellant’s offenses. .................................................. 7
b. Appellant failed to raise his separation of powers argument at
trial, thus waiving this argument on appeal. ............................................... 10
Reply To Appellant’s Second And Fourteenth Points of Error ..................................... 12
II. Appellant properly waived his right to counsel and invoked his right to
represent himself. ...................................................................................................... 12
a. Appellant knowingly, intelligently, and voluntarily invoked his
right to self-representation and waived his right to counsel after
the trial court properly inquired into his decision. .................................... 14
b. The record shows that appellant knew that he faced the evading
arrest charge as well as the aggravated assault charge at trial when
he waived his right to counsel and chose to represent himself at
trial. .................................................................................................................. 18
iii
Reply To Appellant’s Third Point Of Error ..................................................................... 21
III. Appellant failed to timely raise his complaints about the reporter’s
record in his case and thus waived his arguments regarding the record on
appeal. ......................................................................................................................... 21
Reply To Appellant’s Fourth Point Of Error ................................................................... 25
IV. Appellant waived his right to claim that his court-appointed attorney
provided ineffective assistance of counsel because she had a conflict of
interest when he waived his Sixth Amendment right to counsel and
chose to represent himself. ...................................................................................... 25
a. Appellant waived his right to counsel and thus waived his right to
effective assistance of counsel. .................................................................... 27
b. Even if appellant had not waived his right to effective assistance
of counsel, appellant’s court-appointed counsel did not have an
actual conflict of interest with the State. .................................................... 28
Reply To Appellant’s Fifth Point Of Error....................................................................... 31
V. The lost video evidence was not material, exculpatory, or lost in bad
faith. ............................................................................................................................ 31
Reply To Appellant’s Sixth Point Of Error ...................................................................... 35
VI. Appellant failed to preserve his complaint that the copy of State’s
Exhibit 17 that was filed in the clerk’s record before trial and the copy of
State’s Exhibit 17 that was admitted at court were recorded on different
brands of CDs by failing to object at trial.............................................................. 35
Reply To Appellant’s Seventh Point Of Error ................................................................. 37
VII. Appellant failed to preserve and adequately brief his argument
questioning the trial court’s impartiality. ................................................................ 37
Reply To Appellant’s Eighth Point Of Error ................................................................... 38
VIII. Appellant failed to adequately brief and failed to preserve his argument
that the trial court erred when it did not issue written rulings on all
motions that appellant filed. .................................................................................... 38
iv
Reply To Appellant’s Ninth Point Of Error ..................................................................... 39
IX. The trial court did not abuse its discretion when it denied appellant’s
motion to dismiss cause number 1356098............................................................. 39
Reply To Appellant’s Tenth Point Of Error..................................................................... 41
X. The trial court did not abuse its discretion in denying appellant’s
motions to quash the enhancement paragraphs in his indictments
without first holding a hearing. ............................................................................... 41
Reply To Appellant’s Eleventh Point Of Error ............................................................... 43
XI. The trial court did not abuse its discretion when it denied appellant’s
request for extra access to the law library. ............................................................. 43
Reply To Appellant’s Twelfth Point Of Error ................................................................. 46
XII. The trial court did not err when it denied appellant’s motions to set aside
the indictments. ......................................................................................................... 46
Reply To Appellant’s Thirteenth Point Of Error............................................................. 47
XIII. The State did not knowingly offer perjured testimony at trial. ........................... 47
a. Jose did not provide perjured testimony at trial. ....................................... 49
b. Jose’s testimony regarding his medical condition and care as a
result of the shooting did not contribute to appellant’s conviction
beyond a reasonable doubt........................................................................... 50
Conclusion ............................................................................................................................. 51
Certificate Of Compliance................................................................................................... 52
Certificate Of Service ........................................................................................................... 53
v
TABLE OF AUTHORITIES
CASES
Acosta v. State,
233 S.W.3d 349 (Tex. Crim. App. 2007) ................................................................. 27, 28
Arizona v. Youngblood,
488 U.S. 51 (1988) ................................................................................................33, 34, 35
Bell v. State,
814 S.W.2d 229 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d) .................... 42, 43
Blankenship v. State,
673 S.W.2d 578 (Tex. Crim. App. 1984) ....................................................................... 19
Bounds v. Smith,
430 U.S. 817 (1977), overruled on other grounds by
Lewis v. Casey, 518 U.S. 343 (1996) ................................................................................. 44
Brady v. Maryland,
373 U.S. 83 (1963) ............................................................................................................ 32
Burgess v. State,
816 S.W.2d 424 (Tex.Crim.App.1991) .......................................................................... 14
California v. Trombetta,
467 U.S. 479 (1984).......................................................................................................... 33
Calloway v. State,
743 S.W.2d 645 (Tex. Crim. App. 1988) ................................................................. 42, 43
Chandler v. State,
278 S.W.3d 70 (Tex. App.—Texarkana 2009, no pet.) ............................ 32, 33, 34, 35
Cook v. State,
902 S.W.2d 471 (Tex. Crim. App. 1995) ....................................................................... 10
Cudjo v. State,
345 S.W.3d 177 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) ....................... 18
Davis v. State,
329 S.W.3d 798 (Tex. Crim. App. 2010) ......................................................................... 7
Davis v. State,
831 S.W.2d 426 (Tex. App.—Austin 1992, pet. ref’d) .......................................... 33, 35
Degrate v. Godwin,
84 F.3d 768 (5th Cir. 1996) ............................................................................................. 45
vi
DeGroot v. State,
24 S.W.3d 456 (Tex. App.—Corpus Christi 2000, no pet.) ........................................ 13
Dolph v. State,
440 S.W.3d 898 (Tex. App.—Texarkana 2013, pet. ref’d) .......................................... 19
Ex parte Castellano,
863 S.W.2d 476 (Tex. Crim. App. 1993) ................................................................. 48, 50
Ex parte Krarup,
422 S.W.2d 173 (Tex. Crim. App. 1967), overruled in part,
King v. State, 473 S.W.2d 43 (Tex. Crim. App. 1971)...................................................... 8
Faretta v. California,
422 U.S. 806 (1975)..............................................................................................13, 26, 28
Ferguson v. State,
335 S.W.3d 676 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ........ 10, 40, 41, 47
Foster v. State,
101 S.W.3d 490
(Tex. App.—Houston [1st Dist.] 2002, no pet) ................. 7, 12, 22, 25, 31, 35, 37, 48
Galloway v. State,
578 S.W.2d 142 (Tex. Crim. App. 1979) ....................................................................... 42
Gaston v. State,
136 S.W.3d 315 (Tex. App.—Houston [1st Dist.] 2004, pet. struck) ........................ 26
Geuder v. State,
115 S.W.3d 11 (Tex. Crim. App. 2003) ......................................................................... 39
Hampton v. State,
86 S.W.3d 603 (Tex. Crim. App. 2002) ......................................................................... 32
Harris v. State,
364 S.W.3d 328 (Tex. App.—Houston [1st Dist.] 2012, no pet.)..................22, 23, 24
Hicks v. State,
508 S.W.2d 400 (Tex. Crim. App. 1974) ................................................................. 42, 43
Higginbotham v. State,
416 S.W.3d 921 (Tex. App.—Houston [1st Dist.] 2013, no pet.).............................. 33
Ho v. State,
856 S.W.2d 495 (Tex. App.—Houston [1st Dist.] 1993, no pet.).................... 9, 40, 46
vii
Johnson v State,
257 S.W.3d 778 (Tex. App.—Texarkana 2008, pet. ref’d) .................................... 44, 45
Johnson v. State,
760 S.W.2d 277 (Tex. Crim. App. 1988) ....................................................................... 14
Jordan v. State,
56 S.W.3d 326
(Tex. App.—Houston [1st Dist.] 2001, pet. ref’d)....................................................... 41
King v. State,
29 S.W.3d 556 (Tex. Crim. App. 2000) ......................................................................... 30
Kinley v. State,
16 S.W. 339 (Tex. App. 1891, no pet.) ............................................................................ 9
Lawrence v. State,
240 S.W.3d 912 (Tex. Crim. App. 2007) ......................................................................... 8
Lewis v. Casey,
518 U.S. 343 (1996).................................................................................................... 44, 45
Losada v. State,
721 S.W.2d 305 (Tex. Crim. App. 1986) ....................................................................... 50
Lovill v. State,
319 S.W.3d 687 (Tex. Crim. App. 2009) ....................................................................... 11
Lucio v. State,
351 S.W.3d 878 (Tex. Crim. App. 2011) ......................... 6, 7, 22, 25, 31, 35, 37, 38, 48
Luck v. State,
588 S.W.2d 371 (Tex. Crim. App. 1979) ................................................................. 48, 50
Mahaffey v. State,
937 S.W.2d 51 (Tex. App.—Houston [1st Dist.] 1996, no pet.) .......................... 34, 35
Monreal v. State,
947 S.W.2d 559 (Tex. Crim. App. 1997) ....................................................................... 26
Mooney v. Holohan,
294 U.S. 103 (1935).......................................................................................................... 48
Moore v. State,
999 S.W.2d 385 (Tex.Crim.App.1999) ................................................. 13, 18, 23, 24, 39
Naff v. State,
946 S.W.2d 529 (Tex. App.—Fort Worth 1997, no pet.) ............................................. 8
viii
Neal v. State,
256 S.W.3d 264 (Tex. Crim. App. 2008) ................................................................. 33, 34
Oles v. State,
965 S.W.2d 641 (Tex. App.—Houston [1st Dist.] 1998), aff'd,
993 S.W.2d 103 (Tex. Crim. App. 1999) ....................................................................... 36
Perez v. State,
261 S.W.3d 760 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) ................. 26, 28
Prihoda v. State,
352 S.W.3d 796 (Tex. App.—San Antonio 2011, pet. ref’d) .................................... 6, 7
Resendez v. State,
306 S.W.3d 308 (Tex. Crim. App. 2009) ....................................................................... 11
Rosales v. State,
841 S.W.2d 368 (Tex. Crim. App. 1992) ....................................................................... 38
Rothstein v. State,
267 S.W.3d 366 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) ....................... 11
Routier v. State,
112 S.W.3d 554 (Tex. Crim. App. 2003) ....................................................................... 27
State v. Krizan-Wilson,
354 S.W.3d 808 (Tex. Crim. App. 2011) ....................................................................... 40
State v. Moff,
154 S.W.3d 599 (Tex. Crim. App. 2004) ....................................................................... 46
State v. Zorrilla,
404 S.W.3d 734 (Tex. App.—San Antonio 2013, no pet.) ........................ 9, 40, 41, 46
Tate v. State,
120 S.W.3d 886 (Tex. App.—Fort Worth 1999, no pet.) ........................................... 42
United States v. Bagley,
473 U.S. 667 (1985).................................................................................................... 48, 50
Valle v. State,
109 S.W.3d 500 (Tex. Crim. App. 2003) ................................................................. 22, 24
Vasquez v. State,
67 S.W.3d 229 (Tex. Crim. App. 2002) ................................................................... 48, 50
Velazquez v. State,
222 S.W.3d 551 (Tex. App.—Houston [14th Dist.] 2007, no pet.) ........................... 22
ix
Watkins v. State,
333 S.W.3d 771 (Tex. App.—Waco 2010, pet. ref’d) ............................................ 30, 37
Williams v. State,
252 S.W.3d 353 (Tex. Crim. App. 2008) ....................................................................... 26
Wilson v. State,
71 S.W.3d 346, 349 (Tex. Crim. App. 2002) ................................................................. 36
Winkfield v. State,
792 S.W.2d 727 (Tex. App.—Corpus Christi 1990, pet. ref’d) ............................ 23, 24
Wisenbaker v. State,
782 S.W.2d 534 (Tex. App.—Houston [14th Dist.] 1989. no pet.) ........................... 30
Worton v. State,
492 S.W.2d 519 (Tex. Crim. App. 1973) ................................................................. 42, 43
Wright v. State,
28 S.W.3d 526 (Tex. Crim. App. 2000) ......................................................................... 44
Wyatt v. State,
23 S.W.3d 18 (Tex. Crim. App. 2000) ..................................................................... 32, 34
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 15.04 (West 2005) ...................................................... 8
TEX. CODE CRIM. PROC. ANN. art. 15.05 (West 2005) ...................................................... 8
TEX. CODE CRIM. PROC. ANN. art. 21.01 (West 2009) ...................................................... 9
TEX. CODE CRIM. PROC. ANN. art. 21.02 (West 2009) ...................................................... 9
TEX. CODE CRIM. PROC. ANN. art. 21.20 (West 2009) ...................................................... 8
TEX. CODE CRIM. PROC. ANN. art. 21.21 (West 2009) ...................................................... 9
TEX. CODE CRIM. PROC. ANN. art. 21.22 (West 2006) ................................... 9, 40, 41, 46
TEX. CODE CRIM. PROC. ANN. art. 28.01 (West 2006) .............................................. 42, 43
TEX. CODE CRIM. PROC. ANN. art. 39.14(f) (West Supp. 2014) ..................................... 29
TEX. CODE CRIM. PROC. ANN. Ch. 21 ...................................................................10, 40, 47
TEX. GOV’T CODE ANN. § 52.046(a) (West 2005) ........................................................... 22
x
RULES
TEX. R. APP. P. 9.4(g) ............................................................................................................. ii
TEX. R. APP. P. 9.4(i). ........................................................................................................... 52
TEX. R. APP. P. 33.1(a) ...................................................................................... 11, 36, 37, 38
Tex. R. App. P. 34.6 ............................................................................................................. 24
TEX. R. APP. P. 34.6(e)(1) .................................................................................................... 23
Tex. R. App. P. 34.6(e)(2) .................................................................................................... 23
Tex. R. App. P. 34.6(f) ................................................................................................... 23, 24
TEX. R. APP. P. 38.1(i) ...................................................................... 7, 22, 25, 35, 37, 38, 48
TEX. R. APP. P. 38.2(a)(1)(A) ................................................................................................. ii
TEX. R. APP. P. 39.1 ................................................................................................................ ii
TEX. R. EVID. 103........................................................................................................... 11, 38
CONSTITUTIONAL PROVISIONS
TEX. CONST. art. I, §10 .......................................................................................................... 9
U.S. CONST. amend. VI.................................................................................................. 13, 26
xi
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged with evading arrest in a motor vehicle and aggravated
assault with a deadly weapon in cause numbers 1356098 and 1356099 (1356098 CR at
9; 1356099 CR at 10).1 He entered pleas of not guilty, and a consolidated jury trial
was held to determine guilt (1356098 CR at 206; 1356099 CR at 267; 2 RR at 79-80).
The jury found appellant guilty (1356098 CR at 194, 206; 1356099 CR at 255, 267; 4
RR at 138). Per the jury’s determination, the court sentenced appellant to fifty years
confinement in the Institutional Division of the Texas Department of Criminal Justice
for the evading charge and confinement for life in the Institutional Division of the
Texas Department of Criminal Justice for the aggravated assault charge (1356098 CR
at 202, 206; 1356099 CR at 263, 267; 5 RR at 36). The court certified appellant’s right
to appeal, and appellant filed a timely notice of appeal (1356098 CR at 210, 211-12;
1356099 CR at 271, 272-73).
STATEMENT OF FACTS
On the night of December 29, 2011, Jose Bribiescas was celebrating his fortieth
birthday with his friends at Merinos Sports Bar (2 RR at 112, 113, 131; 4 RR at 24).
Appellant approached one of Jose’s friends, Claudia Atencio, and asked her if he
1
For clarity, the State will use the corresponding cause number in the citation to the clerk’s record
and supplemental clerk’s record. Several reporter’s records were filed in appellant’s case, and the
State will refer to the record of the pretrial hearings as “1 Pretrial RR” and “2 Pretrial RR” while the
reporter’s record at trial will be referred to as “1 RR,” etc.
1
could buy her a drink (2 RR at 132). Claudia refused appellant’s offer, so appellant
accosted Jose’s friend, Larry Hernandez, who had come the Merinos with Claudia,
demanding to know if Claudia was Larry’s girlfriend (2 RR at 132; 4 RR at 26-27, 62).
Jose intervened as appellant became aggressive and took a swing at Jose (2 RR at 87,
113, 132-33; 4 RR at 27). After a scuffle, their fight was broken up, and Pedro Padron
instructed appellant and Jose to leave (2 RR at 88; 4 RR at 8, 27).
Appellant left the bar first, but he returned a short time later (2 RR at 90, 115,
136; 4 RR at 31, 32). Appellant found Jose still at the bar and pointed a gun at him (2
RR at 116, 137; 4 RR at 33, 35). Before Jose could react, appellant shot Jose once in
the chest, inches away from his heart (4 RR at 35, 38, 40).
At the sound of gunfire, the bar erupted in chaos (4 RR at 37). Jose, while still
conscious, could not breathe as the bullet punctured his lung (4 RR at 39-40, 41).
Afraid appellant would see that he was still alive, Jose’s friends pulled him by a pool
table in the cover of the melee (4 RR at 39-40). There, Jose passed out (3 RR at 13; 4
RR at 39-40).
Appellant left the bar in a white truck that was missing a tailgate (2 RR at 96,
121; 3 RR at 35, 43). Corporal Moses Davila was dispatched to the scene and was
searching for the suspect’s vehicle when he came across a truck matching the
description (3 RR at 34, 35, 36, 43). He followed the truck until backup arrived and
then attempted to stop the vehicle (3 RR at 38, 39, 92). Instead of stopping when the
lights and sirens on several police cars were activated, appellant, who was driving the
2
white truck, accelerated and lead the officers on a high speed chase (3 RR at 42, 44,
58-59, 92, 93, 97). Appellant crashed while trying to turn at a high rate of speed, but
that did not stop the chase (3 RR at 46, 94). Realizing that the truck was disabled,
appellant jumped out of the vehicle and continued to flee on foot until he was
apprehended by the pursuing officers (3 RR at 51-55, 94-95).
Officers searched appellant’s truck and found the gun he used to shoot Jose (3
RR at 58, 75-76; 4 RR at 36; State’s Ex. 27). Appellant was brought back to Merinos
where several witnesses identified him as Jose’s shooter (2 RR at 98-99, 123, 141-42; 3
RR at 17).
Upon appellant’s arrest, the trial court appointed appellant counsel to represent
him (1356098 CR at 13; 1356099 CR at 15). Before the cases proceeded to trial, the
State re-indicted both charges (1356098 CR at 9, 15, 60; 1356099 CR at 10, 22, 102).
Before the commencement of his consolidated trial, appellant requested that the trial
court allow him to represent himself (1356098 CR at 95; 1356099 CR at 153; 1 Pretrial
RR at 5). The trial court inquired into appellant’s background, education, and
experience and informed him of the dangers and disadvantages of representing
himself at a pretrial hearing before finding that appellant understood the implications
and dangers of self-representation (1 Pretrial RR at 5-15). Appellant persisted in his
desire to represent himself, so the trial court granted his request to waive his right to
appointed counsel and assert his right to self-representation (1 Pretrial RR at 15).
3
SUMMARY OF THE ARGUMENTS
The indictments in appellant’s cases properly bestowed the trial court with
jurisdiction over his offenses of aggravated assault and evading arrest despite
appellant’s arguments that the complaints in his cases were in invalid. Also, appellant
failed to preserve the separation of powers argument that he raises for the first time
on appeal.
Appellant knowingly, intelligently, and voluntarily waived his right to counsel
and invoked his right to represent himself after the trial court properly inquired into
his background and admonished him regarding the dangers and disadvantages of self-
representation.
Appellant failed to timely raise his complaints about the reporter’s record in his
case and thus waived his arguments regarding the record.
Appellant waived his right to claim that his court-appointed attorney provided
ineffective assistance of counsel when he chose to waive his right to counsel and
represent himself, and even if appellant could raise an ineffective assistance of counsel
claim, he failed to show that his appointed counsel had an actual conflict of interest
with the State.
Appellant has not met his burden of showing that his due process rights were
violated by the State’s failure to copy video evidence from Merinos because appellant
did not show that the video was material, exculpatory, or lost in bad faith.
4
Appellant failed to preserve his complaint that the State tampered with
evidence when the copy of State’s Exhibit 17 that was filed in the clerk’s record
before trial and the copy of State’s Exhibit 17 that was admitted at trial were recorded
on different brands of CDs by failing to object at trial.
Appellant failed to preserve and adequately brief his argument questioning the
trial court’s impartiality. Appellant never objected to the trial court’s actions of
preserving appellant’s initial request for appointed counsel when the charges against
him were re-indicted.
Appellant failed to adequately brief and failed to preserve his argument that the
trial court erred when it did not issue written rulings on all motions filed by appellant.
The trial court did not abuse its discretion when it denied appellant’s motion to
dismiss his evading arrest charge on the basis that no complaint was filed in his case
because not complaint was needed.
The trial court did not abuse its discretion in denying appellant’s motions to
quash the enhancement paragraphs in his indictments without first holding a hearing
because appellant did not meet his burden of collaterally attacking his prior
convictions.
The trial court did not abuse its discretion when it denied appellant’s request
for extra access to the law library because appellant had no right for extra library time.
The trial court did not abuse its discretion in denying appellant’s motions to set
aside appellant’s indictments because the legal argument appellant presented attacking
5
the validity of the complaints filed in his cases was insufficient to set aside the re-
indicted charging instruments.
Appellant’s due process rights were not violated by the admission of perjured
testimony at trial when Jose’s testimony of his medical condition and care differed
from the medical records introduced at trial because his testimony was not perjurious.
REPLY TO APPELLANT’S FIRST POINT OF ERROR
I. The indictments in appellant’s cases properly bestowed the trial court with
jurisdiction over his offenses of aggravated assault with a deadly weapon
and evading arrest despite appellant’s arguments that the complaints in his
cases were in invalid.
In his first point of error, appellant presents this Court with a multifarious,
inadequately briefed argument alleging multiple violations to his federal and state
constitutional rights by the complaints in his cases.2 First, appellant alleges that his
convictions are void because the charging instruments in his case did not bestow the
trial court with jurisdiction as the complaints in both cases fulfilled the statutory
requisites of an “information” rather than a “complaint” without providing citations
for any of his constitutional claims; he does adequately cite to state law relevant to his
2
Points of error are multifarious when they are based on more than one legal theory and raise more
than one complaint. Prihoda v. State, 352 S.W.3d 796, 801 (Tex. App.—San Antonio 2011, pet. ref’d)
(holding that that appellate courts may refuse to address multifarious points because they present
nothing for review). An argument is inadequately briefed when it does not contain citations to
authority supporting the assertions in the point of error. TEX. R. APP. P. 38.1(i); Lucio v. State, 351
S.W.3d 878, 896-97 (Tex. Crim. App. 2011). While appellant does not distinguish his points of error
within his brief, the State looks to the “Issues Presented” portion of his brief to determine the
arguments included in his fourteen points of error. Appellant’s Br. 4-6.
6
statutory claims.3 See TEX. R. APP. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896-97
(Tex. Crim. App. 2011) (holding that an argument that is inadequately briefed presents
nothing for review). Next, appellant argues that the form of the complaints in his
case violated the separation of powers doctrine.
As multiple courts of appeals have held that when a point of error on appeal
raises more than one legal theory and raises more than one complaint, nothing is
presented for review, this Court can refuse to address appellant’s multifarious point of
error. See Davis v. State, 329 S.W.3d 798, 803 (Tex.Crim.App. 2010); Prihoda v. State,
352 S.W.3d 796, 801 (Tex. App.—San Antonio 2011, pet. ref’d); Foster v. State, 101
S.W.3d 490, 499 (Tex. App.—Houston [1st Dist.] 2002, no pet). However, should this
Court chose to address the adequately briefed portions of appellant’s multifarious first
point of error, this Court should overrule appellant’s arguments as meritless.
a. The indictments issued by the grand jury provided the trial court with
jurisdiction over appellant’s offenses.
In the first part of appellant’s point of error, he attacks the validity of his
convictions by alleging that the trial court lacked jurisdiction over his cases because
the complaints were in the form of “informations” rather than “complaints.”
Appellant filed motions to quash the indictments on this basis which the trial court
denied (1356098 CR at 173-75; 1356099 CR at 231-33). To preserve appellant’s point
3
Appellant brings similar arguments in his ninth and twelfth points of error.
7
of error, the State construes appellant’s first argument as a complaint against the trial
court’s denying his motion to quash on the grounds alleged in his first point of error.
Standard of Review
Appellate courts review a trial court’s decision to deny a motion to quash an
indictment de novo. Lawrence v. State, 240 S.W.3d 912, 915 (Tex.Crim.App. 2007).
Applicable Law
According to the Texas Code of Criminal Procedure article 15.04, a
“complaint” is an affidavit made before a magistrate or district attorney that charges
to commission of an offense and informs the accused of the alleged offense. TEX.
CODE CRIM. PROC. ANN. art. 15.04 (West 2005); Naff v. State, 946 S.W.2d 529, 531
(Tex. App.—Fort Worth 1997, no pet.). To be sufficient, a complaint must state the
name of the accused, show that the affiant has good reason to believe that the accused
has committed some offense against the laws of the State, give the time and place of
the commission of the offense, and be signed by the affiant. TEX. CODE CRIM. PROC.
ANN. art. 15.05 (West 2005).
By contrast, an “information” is a written statement filed and presented on
behalf of the State charging a defendant with an offense that may be prosecuted by
law. TEX. CODE CRIM. PROC. ANN. art. 21.20 (West 2009). Only misdemeanor
offenses may be prosecuted by an information in Texas. Ex parte Krarup, 422 S.W.2d
173, 174 (Tex. Crim. App. 1967), overruled in part, King v. State, 473 S.W.2d 43 (Tex.
Crim. App. 1971). To be sufficient, an information must begin with the phrase, “In
8
the name and by authority of the State of Texas,” appear to have been presented in a
court having jurisdiction over the offense alleged, appear to have been presented by
the proper officer, contain the name of the accused, appear that the place the offense
occurred is within the jurisdiction of the court where the information if filed, mention
a date before the filing of the information and alleged an offense not barred by
limitations, set forth the offense in plain and intelligible words, conclude “Against the
peace and dignity of the State,” and be signed by the district or county attorney.”
TEX. CODE CRIM. PROC. ANN. art. 21.21 (West 2009). Additionally, a valid complaint
is a prerequisite to a valid information. TEX. CODE CRIM. PROC. ANN. art. 21.22 (West
2006); State v. Zorrilla, 404 S.W.3d 734, 735 (Tex. App.—San Antonio 2013, no pet.);
Ho v. State, 856 S.W.2d 495, 497 (Tex. App.—Houston [1st Dist.] 1993, no pet.).
For a felony offense to be prosecuted, an indictment must be issued by a grand
jury accusing the defendant of an offense. TEX. CONST. art. I, §10; TEX. CODE CRIM.
PROC. ANN. art. 21.01 (West 2009); see Kinley v. State, 16 S.W. 339, 339 (Tex. App.
1891, no pet.) (“Informations cannot be used to bring before the court a party
charged with a felony for the purpose of finally trying him. It is only misdemeanors
that can be presented by information.”). To be sufficient, an indictment must have
the same requirements as an information but also must appear to be presented to the
grand jury of the district court and be signed by the grand jury. TEX. CODE CRIM.
PROC. ANN. art. 21.02 (West 2009). A compliant is not required for a grand jury to
indict a defendant on felony charges as it is required in order for the State to proceed
9
on a misdemeanor information. TEX. CODE CRIM. PROC. ANN. Ch. 21; Ferguson v.
State, 335 S.W.3d 676, 681-82 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
Analysis
The trial court did not err when it denied appellant’s motions to quash because
the appellant’s argument against the form of the complaints is misplaced. Indictments
alone were needed to bestow the trial court with jurisdiction over his offenses. See
Cook v. State, 902 S.W.2d 471, 475 (Tex.Crim.App. 1995) (noting that an indictment
vests a trial court with jurisdiction over a felony offense). The complaints appellant
complains about did not affect whether the trial court had jurisdiction because
complaints are not required for a grand jury to indict a defendant on felony charges.
TEX. CODE CRIM. PROC. ANN. Ch. 21; Cook, 902 S.W.2d at 475; Ferguson, 335 S.W.3d
at 681-82. Thus, the trial court did not err when it overruled appellant’s motion to
quash the indictments on this ground.
b. Appellant failed to raise his separation of powers argument at trial, thus
waiving this argument on appeal.
The second argument appellant makes regarding the complaints’ forms alleges
that the separation of powers doctrine was violated. Appellant claims that since the
State ignored the requisites of a complaint as set out by article 15.05, it effectively
created its own statute and usurped the power of the legislature. Appellant’s Br. 9.
Appellant raises this argument for the first time on appeal. Because appellant did not
advance this argument at trial, appellant has failed to preserve it for appellant review.
10
Applicable Law
“[A] complaint is not preserved for appeal unless it was made to the trial court
‘by a timely request, objection or motion’ that ‘stated the grounds for the ruling that
the complaining party sought from the trial court with sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds were apparent from
the context.’” Resendez v. State, 306 S.W.3d 308, 312 (Tex.Crim.App. 2009) (quoting
TEX. R. APP. P. 33.1(a)); see TEX. R. EVID. 103. To preserve error, a party timely and
specifically inform the trial court of his objection “when the trial court is in a proper
position to do something about it.’” Resendez, 306 S.W.3d at 313 (quoting Lankston v.
State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992)). A reviewing court will not consider
errors, even of constitutional magnitude, not called to the trial court’s attention. Lovill
v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009); Rothstein v. State, 267 S.W.3d
366, 373 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).
Analysis
Appellant waived appellate review of his separation of powers argument
because he failed to raise it to the trial court. Resendez, 306 S.W.3d at 312; TEX. R.
APP. P. 33.1(a); TEX. R. EVID. 103. While appellant file multiple motions contesting
the validity of the charging instruments filed in his case, the State cannot find one
raising this argument despite scouring the record. Because appellant did not inform
the trial court of his separation of powers argument, he failed to preserve it. Thus,
11
this Court, if it should choose to address appellant’s multifarious point of error,
should overrule appellant’s separation of powers argument.
REPLY TO APPELLANT’S SECOND AND FOURTEENTH
POINTS OF ERROR4
II. Appellant properly waived his right to counsel and invoked his right to
represent himself.
Next, appellant presents another multifarious argument alleging violations of
multiple federal and state constitutional rights involved in his self-representation at
trial. Foster, 101 S.W.3d at 499. Within this argument, appellant advances two main
claims regarding his right to counsel. Appellant first argues that he did not properly
waive his right to counsel in regards to cause number 1356098 because he lacked
notice that he would be representing himself on the evading arrest charge.
Appellant’s Br. 10. Secondly, appellant argues that his right to self-representation was
not knowingly, intelligently, or voluntarily made on both cause numbers because the
trial court did not provide proper Faretta warnings. Appellant’s Br. 10. Appellant
makes a similar argument in his fourteenth point of error alleging that the trial court
abused its discretion when found that appellant knowingly and intelligently waived his
right to counsel after being informed of the charges against him and the dangers and
disadvantages of representing himself. Appellant’s Br. 17-18. The State will address
4
Appellant rehashes the arguments made in his second point of error in his fourteenth by alleging
that the trial court abused its discretion by failing to inform appellant that he was facing trial on
cause number 1356098 as well as cause number 1356099. Because appellant’s arguments are nearly
identical, the State briefs appellant’s second and fourteenth points of error together.
12
appellant’s claims that he did not knowingly, intelligently, and voluntarily waive his
right to counsel and chose to represent himself after being aware of the dangers and
disadvantages of representing himself before responding to appellant’s argument
regarding his apprehension of the nature of the charges against him.
Standard of Review
Appellate courts review whether a defendant invocation of his right to self-
representation for an abuse of discretion. DeGroot v. State, 24 S.W.3d 456, 457-58 (Tex.
App.—Corpus Christi 2000, no pet.).
Applicable Law
The Sixth Amendment of the United States Constitution guarantees both the
right to counsel and the corresponding right to self-representation. See U.S. CONST.
amend. VI; Faretta v. California, 422 U.S. 806, 819 (1975). A defendant making the
choice to waive counsel and represent himself must chose knowingly, intelligently,
and voluntarily. Faretta, 422 U.S. at 835; Moore v. State, 999 S.W.2d 385, 396
(Tex.Crim.App.1999).
A defendant knowingly, intelligently, or voluntarily decides to waive his right to
counsel and represent himself if he makes the decision with a full understanding of
the right to counsel, which is being abandoned, as well as the dangers and
disadvantages of self-representation. Moore, 999 S.W.2d at 396 n. 5. The defendant
should be aware that he will not be granted any special consideration because of his
self-representation and will be held to the technical and procedural rules like an
13
attorney. Johnson v. State, 760 S.W.2d 277, 278 (Tex.Crim.App.1988). The trial court,
however, does not need to follow a formulaic questioning or particular script in
ascertaining the knowing, intelligent, and voluntary nature of an accused’s waiver of
counsel, and a written waiver of the right to counsel is not required. See Burgess v. State,
816 S.W.2d 424, 428-29 (Tex.Crim.App.1991).
a. Appellant knowingly, intelligently, and voluntarily invoked his right to
self-representation and waived his right to counsel after the trial court
properly inquired into his decision.
Appellant’s claims that he did not knowingly, intelligently, and voluntarily
invoke his right to self-representation is meritless because the record shows that the
trial court properly questioned appellant about his decision and ability to represent
himself during a pretrial hearing, warned him of the dangers of representing himself,
and inquired into the voluntariness of appellant’s decision (1 Pretrial RR). Thus, the
trial court did not allow appellant to represent himself without insuring that appellant
was properly warned and knowingly, intelligently, and voluntarily invoked that right
while waiving his right to counsel.
At the hearing, the trial court inquired into appellant’s background, education,
age and experience:
Court: Now, it’s my understanding -- you correct me if I’m wrong -- that
you wish to represent yourself in this matter.
Appellant: Yes, sir.
Court: All right. Listen to me carefully, and answer these questions to
the best of your ability. Is that your full, true, and correct name is Samuel
Espinoza Rodriguez?
14
Appellant: Yes, sir.
Court: How old are you, Mr. Rodriguez?
Appellant: Forty-eight.
Court: Where were you born?
Appellant: June 10th, ‘64.
Court: No. Where were you born?
Appellant: Oh. In Lubbock, Texas.
Court: And do you read and write the English language?
Appellant: Yes, sir.
Court: Don’t be offended by these questions. Everyone is asked the
same type of questions who desire to represent themselves.
Appellant: Yes, sir.
Court: Because the Court has to make a determination of whether or
not you are fully aware of all the dangers and disadvantages plus the risks
of representing yourself.
Appellant: Yes.
Court: Do you have any learning disabilities or communication
handicaps?
Appellant: No, sir.
Court: No hearing problems, things of that nature. Okay. Have you ever
been declared mentally incompetent or treated for any mental health
disorder?
Appellant: No, sir.
Court: Tell me your educational background. How far did you go in
school?
Appellant: I got a G.E.D.
Court: You have a G.E.D.
Appellant: Yes, sir.
Court: All right. And when was that?
Appellant: ‘84.
Court: ‘84. Do you have any legal training or education or experience?
Appellant: I’ve argued a case in the United States Supreme Court, but
that was -- (inaudible)
Court Reporter: I didn’t hear what he said. But that was?
Court: He’s argued a case before -- he said the Supreme Court of the
United --
Appellant: They accepted my case.
Court: Okay. Supreme Court of the United States?
Appellant: Yes, sir.
15
Court: All right. Fine. But you do realize that’s not the same thing as a
trial? That was an appeal. There’s different rules, regulations, and law.
Appellant: Yes, sir.
Court: But that’s fine. That’s what I needed to know. With regard to any
other prior legal proceedings, do you have any experience representing
yourself in those?
Appellant: No, sir. (1 Pretrial RR at 5-8).
The trial court also informed appellant of the dangers and disadvantages of
representing himself:
Court: And because you’ve indicated to me that you want to represent
yourself, then you’ve waived your right for a Court-appointed counsel.
Now, you realize that you will not be able to claim ineffective assistance
of counsel at a later time if you are unsuccessful at trial. In other words,
you won’t be able to claim that any attorney that you had prior to
representing yourself was ineffective. […] I want to make sure you
understand you won’t be able to claim ineffective assistance on the part
of any lawyers you’ve had in the past on this case. Do you understand?
Appellant: Yes, sir.
Court: Okay. All right. And since you have elected to proceed pro se, if
you do, you must comply with the same technical rules of evidence and
any appellate procedures as an attorney as it goes forward. Do you
understand?
Appellant: Yes, sir.
Court: Okay. And unfortunately the Court will not be able to grant you
any special consideration because of your lack of formal legal -- formal, I
say, legal training. And I want you to be aware that because of that lack
of formal legal training you may fail to properly raise the right grounds
of error in the event and only in the event that you’ve been found guilty
you could waive those errors. You understand that?
Appellant: Yes, sir.
Court: If you don’t make the proper objections. Are you familiar with
the Texas Penal Code?
Appellant: Enough where I can -- learned enough, yes, sir.
Court: And, likewise, the Texas Code of Criminal Procedure?
16
Appellant: Yes, sir.
Court: You realize the Texas Penal Code, that’s the laws?
Appellant: Yes, sir.
Court: And the Code of Criminal Procedure is the mechanism that all
lawyers have to use as a procedure that trial goes by?
Appellant: Yes, sir. […]
Court: Okay. And, so, you are aware, then, of the dangers and
disadvantages of this self-representation?
Appellant: Yes, sir.
Court: Okay. Knowing that you are untrained and without prior legal
experience and not familiar with the rules of evidence and procedure, do
you waive the right to effective assistance of counsel? You have to
because you won’t have anybody to blame. Do you see what I’m saying?
Appellant: Yes, sir.
Court: All right. Likewise, like any attorney, if you represent yourself,
you’ll not be permitted to obstruct the orderly procedure of the court
trial as that would be considered an interference with the fair
administration of justice (1 Pretrial RR at 11-14). See Johnson v. State, 760
S.W.2d at 278.
Finally, the court inquired into whether appellant was voluntarily invoking his right to
represent himself:
Court: Okay. And you’re doing this of your own? You’re doing it
voluntarily --
Appellant: Yes, sir. Voluntarily.
Court: -- and knowingly? You appear to be intelligent, so I’m going to
say it’s intelligently done.
Appellant: Yes, sir.
Court: Okay. And, so, you are aware, then, of the dangers and
disadvantages of this self-representation?
Appellant: Yes, sir.
Court: Okay. Knowing that you are untrained and without prior legal
experience and not familiar with the rules of evidence and procedure, do
17
you waive the right to effective assistance of counsel? You have to
because you won’t have anybody to blame. Do you see what I’m saying?
Appellant: Yes, sir (1 Pretrial RR at 14).
As the record shows, the trial court conducted a proper inquiry into appellant’s
background, age, education, and experience, warned appellant that he would be held
to the same standard as an attorney and would have to face the consequences of
failing to make proper objections, ensured that appellant was aware that he was
waiving both is right to counsel and his right to advance an ineffective assistance of
counsel claim, and confirmed that appellant voluntarily invoked his right to self-
representation and waived his right to counsel; thus, appellant knowingly, intelligently,
and voluntarily decided to represent himself after receive the proper warnings from
the trial court. Moore, 999 S.W.2d at 396 n. 5; see Cudjo v. State, 345 S.W.3d 177, 184-85
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (holding that the record showed
that Cudjo properly waived his right to counsel and invoked his right to represent
himself). As such, this Court should overrule appellant’s point of error on this
ground.
b. The record shows that appellant knew that he faced the evading arrest
charge as well as the aggravated assault charge at trial when he waived
his right to counsel and chose to represent himself at trial.
Appellant also argues in his second point of error that he did not waive his
right to counsel and invoke his right to represent himself for his evading arrest charge
because at the hearing, the trial court told him that he only faced the charges
18
contained in cause number 1356099, the aggravated assault charge (1 Pretrial RR at 8-
9). Appellant argues that he did not have a proper apprehension of the nature of the
charges against him and thus did not waive his right to counsel on cause number
1356098, the evading arrest with a motor vehicle charge. However, the record
establishes that appellant was indeed aware that he faced the evading arrest charge as
well as the aggravated assault charges. Thus, appellant did not fail to waive his right
to counsel and invoke his right to represent himself for both offenses.
Applicable Law
To be valid, a defendant’s waiver of counsel and decision to represent himself
must be made with an apprehension of the nature of the charges. Blankenship v. State,
673 S.W.2d 578, 583 (Tex. Crim. App. 1984); Dolph v. State, 440 S.W.3d 898, 905 (Tex.
App.—Texarkana 2013, pet. ref’d).
Analysis
Despite appellant’s claims that he did not waive his right to counsel and invoke
his right to self-representation for his evading arrest charge, the record establishes that
appellant had notice that he would also face the charge of evading arrest when he
chose to represent himself at trial.
The record shows that even though the trial court informed appellant that he
would represent himself on cause number 1356099 at the pretrial hearing on February
4, 2013, cause number 1356099 included two paragraphs alleging the offense of
aggravated assault with a deadly weapon and alleging the offense of evading arrest in a
19
motor vehicle (1356099 CR at 10; 1 Pretrial RR at 8-9). As of the pretrial hearing, the
first paragraph of cause number 1356099 alleged that appellant “unlawfully,
intentionally and knowingly caused bodily injury to JOSE ALBERTO BRIBIESCAS,
hereinafter called the Complainant, by SHOOTING THE COMPLAINANT WITH
A FIREARM,” while the second paragraph, which the State abandoned on May 15,
2013, alleged that appellant “intentionally fled from M. DAVILA, hereafter styled the
Complainant, a peace officer, employed by HARRIS COUNTY CONSTABLE’S
OFFICE PRECINT 6, lawfully attempting to detain the Defendant, and the
Defendant knew that the Complainant was a peace officer attempting to detain the
Defendant, and the Defendant used a MOTOR VEHICLE while he was in flight”
(1356099 CR at 10). This second paragraph of cause number 1356099 tracked the
exact language that also appeared on cause number 1356098 (1356098 CR at 9;
1356099 CR at 10). The trial court gave appellant a copy of the indictment, and from
the face of cause number 1356099, appellant was aware that he faced both the
aggravated assault and the evading arrest charges when he waived his right to counsel
and invoked his right to represent himself (1356099 CR at 10; 1 Pretrial RR at 10).
Additionally, the record shows that appellant was aware that he was
representing himself on both the aggravated assault charge as well as the evading
arrest charge because every motion that appellant filed with the court on his own
behalf after being allowed to represent himself included both cause numbers (1356098
RR at 124, 127-29, 131, 134035, 136-37, 142-43, 144-45, 147-4, 150-52, 153-55, 156-
20
58, 160-61, 162-63, 164-65, 167-68, 169-70, 171, 173-75, 178-80, 181-82, 184-85).
Appellant even filed a motion objecting to the consolidation of the offense that he
withdrew before trial (1356098 RR at 171).5 Given the voluminous filings indicating
that appellant was aware that he was representing himself for both offenses, appellant
made the decision to waive his court-appointed counsel and to represent himself with
the proper apprehension of the nature of the charges against him.
Because the face of the indictment in cause number 1356099 included both the
offenses of aggravated assault with a deadly weapon and evading arrest with a motor
vehicle when appellant chose to represent himself and because appellant’s filings
indicate that appellant knew that he faced both charges when representing himself at
trial, appellant’s rights were not violated by his apprehension of the charges against
him when he waived his right to counsel and chose to represent himself. As such, this
Court should overrule his argument on this ground.
REPLY TO APPELLANT’S THIRD POINT OF ERROR
III. Appellant failed to timely raise his complaints about the reporter’s record in
his case and thus waived his arguments regarding the record on appeal.
In his next point of error, appellant again alleges that multiple of his federal and
state constitutional rights were violated by the court reporter failing to comply with
her official duties as a court reporter by proffering an incomplete record that is
5
Additionally, at the hearing in which appellant chose to waive his right to counsel and invoke his
right to represent himself, appellant turned down the State’s plea deal which would have given him
forty years on both charges (1 Pretrial RR at 34).
21
missing bench conferences, contains typographical errors, and has “unclear
notations.” Appellant’s Br. 11. Appellant also relies on Texas statutory law in his
brief for his argument that the court reporter failed to comply with her official duties.
Appellant’s Br. 11. While appellant clearly cites to applicable statutory law, his federal
and state constitutional allegations are multifarious and inadequately briefed. TEX. R.
APP. P. 38.1(i); Lucio, 351 S.W.3d at 896-97; Foster, 101 S.W.3d at 499. Should this
Court decide to address appellant’s point of error on the merits, it should limit its
review to the arguments that appellant properly briefed and should hold that appellant
failed to preserve his arguments regarding the record on appeal because appellant
failed to properly object to the record on appeal.
Applicable Law
Texas Government Code section 52.046 requires an official court reporter to
attend all sessions of court and furnish a transcript of the reported evidence or other
proceedings when requested by a party. TEX. GOV’T CODE ANN. § 52.046(a) (West
2005). However, a defendant must object to the court reporter’s failure to record a
portion of the trial proceedings to preserve error. Valle v. State, 109 S.W.3d 500, 508–
09 (Tex. Crim. App. 2003); Harris v. State, 364 S.W.3d 328, 338 (Tex. App.—Houston
[1st Dist.] 2012, no pet.); see Velazquez v. State, 222 S.W.3d 551, 556–57 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). Even if the trial court grants a motion for the
court reporter to record the proceedings at trial, reviewing courts treat such a motion
22
similarly to a motion in limine and requires that the party preserve error. Harris, 364
S.W.3d at 338; see Moore v. State, 999 S.W.2d 385, 398 (Tex. Crim. App. 1999).
When the record is created for an appeal, the Rules of Appellate Procedure
allow the parties to agree to correct inaccuracies in the record if such inaccuracies are
discovered. TEX. R. APP. P. 34.6(e)(1). However, to preserve error regarding the
record submitted on appeal, the Court of Criminal Appeals requires that an appellant
make the necessary inspection of the record after it is completed so he may object to
the record and make sure that the necessary and relevant materials are included. See
Winkfield v. State, 792 S.W.2d 727, 729 (Tex. App.—Corpus Christi 1990, pet. ref’d).
If the parties cannot agree how to correct the reporter’s record, the trial court must
settle the dispute after notice and hearing. Tex. R. App. P. 34.6(e)(2). In instances
where the reporter’s record is lost or destroyed, an appellant is entitled to a new trial
only if he has timely requested a reporter’s record, a significant portion of the court
reporter’s notes and records has been lost or destroyed through no fault of appellant,
the portion of the record that is lost or destroyed is necessary to the resolution of
appellant’s appeal, and the lost or destroyed portion of the record cannot be replaced
by agreement of the parties. Tex. R. App. P. 34.6(f).
Analysis
Appellant waived the arguments he presents in his third point of error because
he failed to timely and properly object to the reporter’s record presented on appeal.
Winkfield, 792 S.W.2d at 729.
23
While appellant contends that the court reporter failed in her duty after the trial
court granted his motion for the court reporter to record all proceedings, appellant
did not preserve error by objecting to the reporter’s failure to record bench
conferences at trial (1356098 CR at 136-38; 1356099 CR at 194-96). Appellant’s Br.
11; see Valle, 109 S.W.3d at 508–09; Harris, 364 S.W.3d at 338. As reviewing courts
treat a motion to record bench conferences similar to the way they treat motions in
limine, appellant had the burden to object when the court reporter did not record
bench conferences. Moore, 999 S.W.2d at 398. Thus, appellant failed to preserve error
for his argument that the trial court should have recorded bench conferences.
In regards to his contention that the record is inadequate because of
typographical errors, appellant also waived this argument by failing to alert this Court
to his objections so that the necessary steps could be taken under the Rules of
Appellate Procedure to correct the record. Tex. R. App. P. 34.6; Winkfield, 792
S.W.2d at 729. Appellant has slept on his right to correct the record. Thus, this
Court should overrule his third point of error.6
6
Furthermore, appellant advances no argument for how the typographical errors and omissions in
reporter’s record would affect the resolution of his appeal. See Tex. R. App. P. 34.6(f). Thus, he
shows no harm from his objections to the record that he failed to preserve.
24
REPLY TO APPELLANT’S FOURTH POINT OF ERROR
IV. Appellant waived his right to claim that his court-appointed attorney
provided ineffective assistance of counsel because she had a conflict of
interest when he waived his Sixth Amendment right to counsel and chose to
represent himself.
Like his previous points of error, appellant again presents another multifarious,
inadequately briefed argument claiming multiple federal and state constitutional
violations regarding his right to conflict-free representation. TEX. R. APP. P. 38.1(i);
Lucio, 351 S.W.3d at 896-97; Foster, 101 S.W.3d at 499. Appellant’s most cogent and
adequately briefed argument focuses on his Sixth Amendment right to conflict-free
representation.7 However, in making this argument, appellant ignores that he waived
his right to raise an ineffective assistance of counsel claim when he chose to waive his
right to counsel and represent himself. Appellant’s argument also fails on the merits
because he does not point to anything in the record that shows that his appointed
counsel had an actual conflict of interest. As such, this Court should overrule
appellant’s fourth point of error.
7
Appellant advances conclusory arguments alleging violations to his federal Fifth, Sixth, and
Fourteenth Amendments as well as to his due course of law rights under article I, sections nineteen
and ten of the Texas Constitution without citation to authority or specific arguments for these
claims. Appellant’s Br. 12. As appellant fails to include any citations to support his arguments, his
point of error is inadequately briefed as well as multifarious, and the State will only address
appellant’s argument on the grounds which are adequately briefed. TEX. R. APP. P. 38.1(i); Lucio,
351 S.W.3d at 896-97; Foster, 101 S.W.3d at 499.
25
Applicable Law
The Sixth Amendment encompasses both the right to counsel and the
reciprocal right to self-representation. U.S. CONST. amend. VI; Williams v. State, 252
S.W.3d 353, 355-56 (Tex. Crim. App. 2008); Monreal v. State, 947 S.W.2d 559, 564
(Tex. Crim. App. 1997). When an accused asserts his right to counsel, the Sixth
Amendment also guarantees the right to reasonably effective assistance of counsel.
Monreal, 947 S.W.2d at 564 (citing Strickland v. Washington, 466 U.S. 668, 686, (1984)).
However, if the accused invokes his right to represent himself, courts do not consider
any subsequent claim of ineffective assistance of counsel. Faretta, 422 U.S. at 834
n.46; Perez v. State, 261 S.W.3d 760, 766 (Tex. App.—Houston [14th Dist.] 2008, pet.
ref’d).
Ineffective assistance of counsel may result when an attorney labors under a
conflict of interest. Monreal, 947 S.W.2d at 564; Gaston v. State, 136 S.W.3d 315, 318
(Tex. App.—Houston [1st Dist.] 2004, pet. struck). A defendant can demonstrate a
violation of his right to reasonably effective assistance of counsel if he can show that
his counsel was burdened by an actual conflict of interest and that the conflict had an
adverse effect on specific instances of counsel’s performance. Monreal, 947 S.W.2d at
564; Gaston, 136 S.W.3d at 318.
An actual conflict exists if counsel is required to make a choice between
advancing her client’s interest in a fair trial or advancing other interests to the
detriment of her client’s interest. Monreal, 947 S.W.2d at 564; Gaston, 136 S.W.3d at
26
318. “[A] potential conflict may become an actual conflict, but [an appellate court
need not] speculate about a strategy an attorney might have pursued ... in the absence
of some showing that the potential conflict became an actual conflict.” Routier v. State,
112 S.W.3d 554, 585 (Tex. Crim. App. 2003). “[U]ntil a defendant shows that his
counsel actively represented conflicting interests, he has not established the constitutional
predicate for his claim of ineffective assistance.” Acosta v. State, 233 S.W.3d 349, 355
(Tex. Crim. App. 2007) (quoting Cuyler v. Sullivan, 446 U.S. 335, 349–50 (2003)).
Analysis
a. Appellant waived his right to counsel and thus waived his right to
effective assistance of counsel.
At trial, appellant waived his right to counsel and invoked his right to represent
himself. Before appellant waived his right to counsel, the trial court warned him that
he was also waiving his right to raise a claim of ineffective assistance of counsel
before allowing appellant to represent himself: “And because you’ve indicated to me
that you want to represent yourself, then you’ve waived your right for a Court-
appointed counsel. Now, you realize that you will not be able to claim ineffective
assistance of counsel at a later time if you are unsuccessful at trial. In other words, you
won’t be able to claim that any attorney that you had prior to representing yourself
was ineffective. […] I want to make sure you understand you won’t be able to claim
ineffective assistance on the part of any lawyers you’ve had in the past on this case.
27
Do you understand?” (1 Pretrial RR at 11-12). Appellant informed the court that he
understood (1 Pretrial RR at 12).
Because appellant chose to represent himself at trial, he cannot now advance a
claim of ineffective assistance of counsel based on his court-appointed attorney’s
performance. Faretta, 422 U.S. at 834 n.46 (1975); Perez, 261 S.W.3d at 766. Thus,
appellant waived any claims of ineffective assistance of counsel, including his current
claim of ineffective assistance of counsel based on a conflict of interest.
b. Even if appellant had not waived his right to effective assistance of
counsel, appellant’s court-appointed counsel did not have an actual
conflict of interest with the State.
Even if appellant had not waived his right to effective assistance of counsel by
choosing to represent himself, appellant nevertheless failed to show that his court-
appointed counsel had an actual conflict of interest with the State. See Acosta, 233
S.W.3d at 355. In attempts to show a conflict, appellant first looks at discrepancies
with the file-stamped dates on the paperwork initially appointing his counsel as
evidence that his counsel, the court, and the State had a prior agreement between
them (1356098 CR at 12-13; 1356099 CR at 13-15). He then points this Court to the
fact that his counsel signed a confidentiality agreement before viewing the State’s file
as evidence of a conflict of interest. (1356099 CR at 13; 1 Pretrial RR at 31-32).
Appellant then argues that when his counsel agreed with the State that the video
evidence from Merinos did not exist another conflict of interests arose (1356099 CR
28
at 13; 1 Pretrial RR at 31-32). Appellant next claims that his counsel advanced the
State’s interest when she did not object to the State re-indicting appellant with
charging instruments alleging his status as a habitual offense on a day in which he had
been set for trial (1356098 CR at 60; 1356099 CR at 102). Finally, appellant takes
issue with his counsel continuing to represent him after he filed a motion to dismiss
her and have a new attorney appointed (1356099 CR at 149-51). Not one of these
instances shows that appellant’s appointed counsel had an interest for the State that
conflicted with her representation of appellant.
The discrepancies regarding the paperwork appointing appellant’s counsel
reflect an error with the clerk’s file stamp rather than an agreement between the State
and appellant’s appointed counsel as all are signed on the date appellant’s counsel was
appointed. As for counsel’s agreement to not disseminate the contents of the State’s
file per the confidentiality agreement, appellant overlooks that his counsel had a
statutory duty not to provide appellant with copies of the file. TEX. CODE CRIM.
PROC. ANN. art. 39.14(f) (West Supp. 2014). Also, while appellant alleges that his
counsel was following the confidentiality agreement when she denied the existence of
the video evidence, counsel merely agreed that the evidence did not exist after
thorough investigation (1 Pretrial RR at 31-32).8 As for appellant’s argument
regarding his counsel’s failure to object to the State re-indicting his cases, appellant’s
8
As was discussed before the trial court, the State believed that it had copied surveillance video
from Merinos on a flash drive that it tagged into evidence; however, before trial, it was discovered
that the video had not been properly copied and the flash drive was blank (1 Pretrial RR at 31-32).
29
counsel could not prevent the State from re-indicting appellant with his habitual status
by objection. See Wisenbaker v. State, 782 S.W.2d 534, 536 (Tex. App.—Houston [14th
Dist.] 1989. no pet.) (noting that article 28.10 does not apply to charges that are re-
indicted). Finally, in making his claims regarding his appointed counsel’s continued
representation, appellant fails to acknowledge that as an indigent defendant, he had no
right to the counsel of his choice and was required to accept the counsel provided by
the court unless he effectively waived his right to counsel or show adequate cause for
the appointment of a different attorney. Watkins v. State, 333 S.W.3d 771, 775 (Tex.
App.—Waco 2010, pet. ref’d). As he did not show adequate cause for the court to
dismiss his counsel in his motion which complained about his counsel’s preparation
and strategy for trial, counsel did not advance the State’s interest in continuing to
represent him (1356099 CR at 149-51). King v. State, 29 S.W.3d 556, 566 (Tex. Crim.
App. 2000) (“[P]ersonality conflicts and disagreements concerning trial strategy are
typically not valid grounds for withdrawal” and “A trial court has no duty to search
for counsel agreeable to the defendant”).
Because the allegations appellant points to fails to show an actual conflict of
interest, even if appellant could raise an ineffective assistance of counsel claim based
on conflict of interest, appellant fails to meet the necessary showing. Thus, this Court
should overrule his fourth point of error.
30
REPLY TO APPELLANT’S FIFTH POINT OF ERROR
V. The lost video evidence was not material, exculpatory, or lost in bad faith.
In his next multifarious point of error, appellant alleges that the State withheld
material and exculpatory evidence when it suppressed surveillance footage taken at
Merinos Sports Bar on the night of the offense and failed to preserve the video in bad
faith.9 Appellant’s argument is based on video evidence that officers tried to obtain
from Merinos shortly after the offense (1 Pretrial RR at 31-33). However, while the
officers thought they obtained the video evidence by copying it, they did not properly
copy the video onto a flash drive, and by the time they realized the mistake, the video
had recorded over itself (1 Pretrial RR at 31-33; 4 RR at 19-20).
Appellant argues that the State suppressed the evidence of the video which he
claims was material and exculpatory and adds that the State failed to preserve the
video in bad faith. Despite appellant’s claims, appellant has not shown that the lost
video evidence was material or exculpatory or that it would have changed the
outcome of trial had it been disclosed. Additionally, appellant failed to show that the
State failed to preserve the video evidence in bad faith. For these reasons, this Court
should overrule appellant’s fifth point of error.
9
Again, appellant advances a multifarious argument alleging violations to his federal Fifth, Sixth, and
Fourteenth Amendments as well as to his due course of law rights under article I, sections nineteen
and ten of the Texas Constitution. Appellant’s Br. 13-14. As appellant fails to include any citations
to support his arguments, his point of error is inadequately briefed as well as multifarious, and the
State will only address appellant’s argument regarding his preserved and adequately briefed Brady
claims. Lucio, 351 S.W.3d at 896-97; Foster, 101 S.W.3d at 499.
31
Applicable Law
The Supreme Court in Brady v. Maryland held “that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).
Under Brady, the State has an affirmative duty to disclose all favorable exculpatory or
impeachment evidence that is material to the defendant. Brady, 373 U.S. at 87;
Chandler v. State, 278 S.W.3d 70, 74 (Tex. App.—Texarkana 2009, no pet.). A
defendant’s due process rights are violated if the State fails to disclose favorable and
material evidence to the defendant. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App.
2000). Courts consider evidence material if there is a reasonable probability that, had
the evidence been disclosed, the outcome of the trial would have been different.
Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). The mere possibility
that the evidence might have helped the defendant or affected the outcome of trial
does not establish materiality in a constitutional sense. Wyatt, 23 S.W.3d at 27;
Chandler, 278 S.W.3d at 74. The defendant raising a Brady claim bears to burden to
show that there is a reasonably probability that the outcome of trial would have been
different in light of all of the evidence if the State had timely disclosed the exculpatory
evidence. Wyatt, 23 S.W.3d at 27; Chandler, 278 S.W.3d at 74.
Additionally, the State has a duty to preserve evidence that possesses an
exculpatory value that is apparent before the evidence is destroyed. California v.
32
Trombetta, 467 U.S. 479, 488 (1984); Chandler, 278 S.W.3d at 75. However, the failure
by the State to preserve potentially useful evidence is not a denial of due process
unless a defendant can show that the State acted in bad faith. Arizona v. Youngblood,
488 U.S. 51, 58 (1988); Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008);
Chandler, 278 S.W.3d at 75. Unless the defendant can show bad faith on the part of the
State, failure to preserve potentially useful evidence does not, in and of itself, result in
denial of due process. Davis v. State, 831 S.W.2d 426, 442 (Tex. App.—Austin 1992,
pet. ref’d); see Youngblood, 488 U.S. at 58.
Analysis
Appellant has not met his burden of proof under Brady to show that the video
evidence from Merinos was material or exculpatory. In his brief, appellant merely
claims that the video was material “because police officers watched the video and then
asked for disk copy, which they captioned ‘Flash Drive Video of the Shooting of
Complainant by Suspect,” but offers no other reasons other than the officers made a
copy of it for the video’s materiality. Appellant’s Br. 14. Appellant made no attempt
to put on the record what he believed the video would show (such as whether the
video depicted the inside of Merinos or the outside parking lot). See Higginbotham v.
State, 416 S.W.3d 921, 927 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (holding
that lost video was not material after officer testified regarding what was on it and
testified to his memory of the offense). Similarly, appellant does not offer any
explanation of how he thinks the video would be exculpatory other than
33
hypothesizing that “it would exculpate appellant by showing the act of self-defense
and impeaching because it would impeach testimony of State’s witnesses.”
Appellant’s Br. 14. See Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.—Houston [1st
Dist.] 1996, no pet.) (holding that a showing or a suggestion that lost evidence might
have been favorable does not fulfill a defendant’s burden of proof). Appellant merely
suggests that the video could have corroborated his theory that he shot Jose in self-
defense but provides no further proof to support his supposition. Indeed, appellant
has not shown that there is a reasonable probability that if the video evidence had
existed, the outcome of his trial would have been different given that the jury heard
eye-witness testimony from multiple witnesses who observed appellant’s altercation
with Jose and Larry and who saw appellant shot Jose and the appellant presented the
jury with testimony regarding his theory of self-defense which the jury rejected. See
Wyatt, 23 S.W.3d at 27; Chandler, 278 S.W.3d at 74. Because appellant has not met his
burden under Brady, his Brady claim should be overruled.
Additionally, appellant failed to meet his burden of showing that the State acted
in bad faith by failing to preserve the video. Youngblood, 488 U.S. at 58; Neal, 256
S.W.3d at 280. As the evidence showed, the officer who recovered video from
Merinos believed that he had copied the evidence (4 RR at 19). However, when the
video was retrieved, nothing had been copied onto the disk, and the video system at
Merinos had recorded over video from the night of the offense (1 Pretrial at 33; 4 RR
at 19-20). The State inadvertently failed to properly record the evidence and thus lost
34
it by accident rather than through bad faith (1 Pretrial at 31-33; 4 RR at 19-20). See
Mahaffey, 937 S.W.2d at 53 (holding that Mahaffey failed to show bad faith when there
was no evidence on the record that someone deleted video evidence). Appellant has
not met his burden of showing that the State failed to preserve the video evidence in
bad faith and thus his due process rights have not been denied. Chandler, 278 S.W.3d
at 75; Davis, 831 S.W.2d at 442; see Youngblood, 488 U.S. at 58. As such, his claim that
the State failed its duty to preserve the video in bad faith should be overruled.
REPLY TO APPELLANT’S SIXTH POINT OF ERROR
VI. Appellant failed to preserve his complaint that the copy of State’s Exhibit 17
that was filed in the clerk’s record before trial and the copy of State’s
Exhibit 17 that was admitted at court were recorded on different brands of
CDs by failing to object at trial.
Appellant also alleges that error occurred when the State admitted State’s
Exhibit 17, a CD which contained a recording of a witness’s call to 911 the night of
the offense.10 Appellant claims that by admitting State’s Exhibit 17, the State and
court reporter tampered with a government document. Appellant’s argument is based
on the fact that the copy of the CD in the clerk’s record is a different brand than the
CD admitted at trial as State’s Exhibit 17 (1356098 CR at 102; 1356099 CR at 160; 6
10
Again, appellant advances a multifarious argument alleging violations to his federal Fifth and
Fourteenth Amendments as well as to his due course of law rights under article I, sections nineteen
and ten of the Texas Constitution. Appellant’s Br. 15. As appellant fails to include any citations to
support his arguments, his point of error is inadequately briefed as well as multifarious, and the State
will only address appellant’s argument on statutory grounds which are adequately briefed. TEX. R.
APP. P. 38.1(i); Lucio, 351 S.W.3d at 896-97; Foster, 101 S.W.3d at 499.
35
RR at 19). In making this argument, appellant overlooks that he waived this argument
at trial by failing to inform the trial court of it.
Applicable Law
To preserve a complaint for appellate review, a party must timely present the
trial court with an objection or motion that advances the specific grounds of the
complaint. TEX. R. APP. P. 33.1(a). The specific objection made at trial must
comport with the argument on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
App. 2002); Oles v. State, 965 S.W.2d 641, 643 (Tex. App.—Houston [1st Dist.] 1998),
aff’d, 993 S.W.2d 103 (Tex. Crim. App. 1999). Additionally, a party fails to preserve
error when the contention urged on appeal does not comport with the specific
complaint made in the trial court. See Lovill v. State, 319 S.W.3d 687, 691-92 (Tex.
Crim. App. 2009).
Analysis
In making his argument in his sixth point of error, appellant overlooks that he
failed to preserve error at trial. When the State moved to admit State’s Exhibit 17 as a
business record, appellant lodge two objections: that the copy he had been given said
“there [was] no audio since the past six months” and that he had never received a
copy of it (2 RR at 139). Appellant did not advance the argument that he now
advances on appeal and thus failed to preserve error at trial. Wilson, 71 S.W.3d at 349.
Since appellant’s argument is not preserved, this Court should overrule appellant’s
sixth point of error.
36
REPLY TO APPELLANT’S SEVENTH POINT OF ERROR
VII. Appellant failed to preserve and adequately brief his argument questioning
the trial court’s impartiality.
In his seventh point of error, appellant alleges that he was denied a fair trial
because he believed the trial court’s impartiality was questionable.11 While appellant
did not raise the claim to the trial court, on appeal he now levies the allegation that
the trial court was impartial because it committed an illegal act when it noted that
appellant had requested appointed counsel in the paperwork for appellant’s re-
indicted cases (1356098 CR at 96; 1356099 CR at 154).12 Not only is appellant’s
seventh point of error multifarious and unpreserved, appellant does not include any
pertinent citations to authority in his brief. TEX. R. APP. P. 33.1(a); TEX. R. APP. P.
38.1(i); Lucio, 351 S.W.3d at 896-97; Foster, 101 S.W.3d at 499. As such, this Court
11 Appellant advances a multifarious argument alleging violations to his federal Fifth, Sixth, and
Fourteenth Amendments as well as to his due course of law rights under article I, sections nineteen
and ten of the Texas Constitution. Appellant’s Br. 15. While appellant includes citations to legal
authority in his argument, the authority is irrelevant to argument on appeal. Thus, his point of error
is inadequately briefed as well as multifarious. TEX. R. APP. P. 38.1(i); Lucio, 351 S.W.3d at 896-97;
Foster, 101 S.W.3d at 499. As such, this Court should overrule appellant’s seventh point of error.
12
Appellant contests that the trial court falsified this form when it noted that appellant had
requested appointed counsel because appellant had previously filed a motion to dismiss his court
appointed counsel (136099 CR at 149-51). However, when making his argument, appellant
overlooks that as an indigent defendant, he did not have the right to have the court appoint him the
counsel of his choice and that in his motion to dismiss his counsel, appellant again asked the trial
court to appoint new counsel for him (136099 CR at 150-51). Watkins, 333 S.W.3d at 775. The trial
court’s action in continuing to have appellant’s appointed counsel represent him was not illegal or
evidence of the trial court’s partiality. Thus, the trial court did not abuse its discretion or act with
impartiality when it continued the appointment of appellant’s counsel for the new indictments.
37
should hold that appellant has preserved nothing for review and overrule appellant’s
seventh point of error.
REPLY TO APPELLANT’S EIGHTH POINT OF ERROR
VIII. Appellant failed to adequately brief and failed to preserve his argument that
the trial court erred when it did not issue written rulings on all motions that
appellant filed.
Next, appellant argues that the trial court erred when it granted his motion to
issue written rulings on all of appellant’s motions but failed to follow its own ruling
(1356098 CR at 99-100; 1356099 CR at 157-58). Appellant points this Court to
numerous motions in the record that the trial court did not rule on in writing contrary
to its ruling granting appellant’s motion. Appellant’s Br. 15. However, appellant does
not provide any authority for his premise that a trial court’s failure to make written
rulings constitutes error. Appellant’s Br. 15.13 Thus, appellant’s eighth point of error
is inadequately briefed, and this Court should hold that it provides nothing to review.
TEX. R. APP. P. 38.1(i); Lucio, 351 S.W.3d at 896-97.
Further, the record does not show that appellant alerted the trial court to its
failure to issue written rulings in compliance with its order. Appellant should have
notified the trial court of its noncompliance with its prior ruling in order to preserve
error. See TEX. R. APP. P. 33.1(a) (discussing error preservation); TEX. R. EVID. 103
(same). Indeed, Court should hold that motions for a trial court to make written
13
Appellant cites to Rosales v. State, 841 S.W.2d 368 (Tex. Crim. App. 1992) in this section of his
brief, but the State cannot find a correlation between the Rosales opinion and appellant’s argument.
38
rulings on all of a party’s filed motions should be treated similarly to motions in limine
which preserves nothing for review unless the party advances his requests during trial.
See Geuder v. State, 115 S.W.3d 11, 14-15 (Tex. Crim. App. 2003) (“A trial judge’s grant
or denial of a motion in limine is a preliminary ruling only and normally preserves
nothing for appellate review.”); see also Moore, 999 S.W.2d at 398 (holding that
reviewing courts treat motions for the court reporter to record all bench conferences
similar to the way they treat motions in limine). Because appellant failed to notify the
trial court of its omission of written rulings for all the motions appellant identifies in
his brief, appellant waived error.
As a result, even if this Court ignores the inadequacies of appellant’s eighth
point of error and addresses it on its merit, it should nevertheless overrule his
argument as unpreserved.
REPLY TO APPELLANT’S NINTH POINT OF ERROR
IX. The trial court did not abuse its discretion when it denied appellant’s
motion to dismiss cause number 1356098.
Appellant also argues that the trial court erred by overruling his motion to
dismiss cause number 1356098 (1356098 CR at 147-52). Appellant asserts that the
trial court abused its discretion in denying his motion on the basis that no complaint
was filed in his case alleging that the specific complainant, date, and manner and
means as were alleged in his indictment. Appellant’s Br. 16. Appellant bases his
argument on his misunderstanding of the law when he asserts that the grand jury’s
39
indictment in cause number 1356098 is invalid because no complaint was filed in the
case naming M. Davila as a complainant. As a complaint is not required for a grand
jury to issue an indictment, the trial court did not err in overruling appellant’s motion.
Standard of Review
Appellate courts review a trial court’s ruling on a motion to dismiss an
indictment on a de novo standard when reviewing pure questions of law. State v.
Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011).
Applicable Law
A valid complaint is a prerequisite to a valid information. TEX. CODE CRIM.
PROC. ANN. art. 21.22 (West 2006); Zorrilla, 404 S.W.3d at 735; Ho, 856 S.W.2d at 497.
However, a compliant is not required for a grand jury to indict a defendant on felony
charges as it is required in order for the State to proceed on a misdemeanor
information. TEX. CODE CRIM. PROC. ANN. Ch. 21; Ferguson, 335 S.W.3d at 681-82.
Analysis
The trial court did not abuse its discretion when it denied appellant’s motion to
dismiss cause number 1356098 because the grand jury did not need a complaint
alleging the specific complainant, date, and manner and means of the offense to issue
the indictment in cause number 1356098. TEX. CODE CRIM. PROC. ANN. Ch. 21;
Ferguson, 335 S.W.3d at 681-82. As a felony indictment has no requirement that a
valid complaint be filed as is required in misdemeanor cases, the trial court did not
abuse its discretion in denying appellant’s motion to dismiss on the grounds presented
40
in his motion (1356098 CR at 147-52). TEX. CODE CRIM. PROC. ANN. art. 21.22
(West 2006); Zorrilla, 404 S.W.3d at 735; Ferguson, 335 S.W.3d at 681-82. For this
reason, this Court should overrule appellant’s ninth point of error.
REPLY TO APPELLANT’S TENTH POINT OF ERROR
X. The trial court did not abuse its discretion in denying appellant’s motions
to quash the enhancement paragraphs in his indictments without first
holding a hearing.
In his tenth point of error, appellant argues that the trial court abused its
discretion when it denied appellant’s motions to quash the enhancement paragraphs
without allowing appellant the opportunity to present the court with evidence or
arguments attacking the validity of his prior convictions (1356098 CR at 134-35, 169-
70; 1356099 CR at 192-93, 227-28). However, in making this argument, appellant
overlooks that in his motions to quash, he never requested that the trial court hold a
hearing and never provided proof of his claims (1356098 CR at 134-35, 169-70;
1356099 CR at 192-93, 227-28). Because appellant did not requested a hearing or
meet his burden of proof, the trial court did not abuse its discretion.
Standard of Review
A trial court’s ruling on a motion to quash is reviewed for abuse of discretion.
Jordan v. State, 56 S.W.3d 326, 329 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).
Applicable Law
Article 28.01, which allows a trial court to set any criminal cause for a pretrial
hearing, is not a mandatory statute, but one directed to the trial court’s discretion.
41
TEX. CODE CRIM. PROC. ANN. art. 28.01 (West 2006); Calloway v. State, 743 S.W.2d
645, 649 (Tex. Crim. App. 1988); see Hicks v. State, 508 S.W.2d 400, 403 (Tex. Crim.
App. 1974) (holding that trial court did not abuse its discretion when it failed to set
Hicks’ motion to quash for a pretrial hearing).
A defendant may collaterally attack an alleged prior conviction used for
enhancement if the prior conviction is void or if it is tainted by a constitutional defect.
Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. 1979). When a defendant
collaterally attacks a prior judgment, he bears the burden of proof in his motion to
quash to show that the prior convictions are void. Tate v. State, 120 S.W.3d 886, 890
(Tex. App.—Fort Worth 1999, no pet.); Bell v. State, 814 S.W.2d 229, 231 (Tex.
App.—Houston [1st Dist.] 1991, pet. ref’d).
A motion to quash is not self-proving, so a defendant must offer proof in
support of his motion. Worton v. State, 492 S.W.2d 519, 520 (Tex. Crim. App. 1973);
Bell, 814 S.W.2d at 231. A trial court properly denies a motion to quash when the
defendant offers no proof with respect to the allegations. Bell, 814 S.W.2d at 231; see
Worton, 492 S.W.2d at 520 (stating that a defendant must prove defects in prior
convictions alleged for enhancement purposes).
Analysis
The trial court did not abuse its discretion when it denied appellant’s motions
to quash the enhancement paragraphs in his cases without a hearing because appellant
did not request a hearing. Further, the trial court had discretion to not hold a hearing
42
when appellant offered no proof with respect to the allegations contained in his
motions. Mentioned above, article 28.01 bestows trial courts with the discretion to
choose whether to hold pretrial hearings. TEX. CODE CRIM. PROC. ANN. art. 28.01
(West 2006); Calloway, 743 S.W.2d at 649. A court does not abuse its discretion when
it does not hold a hearing on a defendant’s motion to quash and appellant did not
request the court to hold a hearing on his motion (1356098 CR at 134-35, 169-70;
1356099 CR at 192-93, 227-28). Hicks, 508 S.W.2d at 430. Further, courts did not
abuse its discretion because appellant offered no proof with respect to the allegations
contained within his motion that could meet his burden of proof to collaterally attack
his prior convictions. Worton, 492 S.W.2d at 520; Bell, 814 S.W.2d at 231.
Because appellant did not meet his burden of proof and the trial court had
discretion not to hold a hearing on appellant’s motion, the trial court did not err when
it denied appellant’s motions to quash the enhancement paragraphs without a hearing.
As such, this Court should overrule appellant’s tenth point of error.
REPLY TO APPELLANT’S ELEVENTH POINT OF ERROR
XI. The trial court did not abuse its discretion when it denied appellant’s
request for extra access to the law library.
In his eleventh point of error, appellant complains that the trial court abused its
discretion when it denied appellant’s request for extra access to the law library which
appellant presented to the trial court in a motion for continuance (2 Pretrial RR. at 10;
CR at 124-25; 1356099 CR at 182-83). Appellant especially takes issue with the trial
43
court’s ruling because the trial court informed him that access to the law library was a
danger and disadvantage of representing himself at trial (2 Pretrial RR. at 10).
However, the trial court did not abuse its discretion in denying appellant’s request as
appellant had no right to extra access to legal resources to prepare for his defense at
trial. Thus, this Court should uphold appellant’s eleventh point of error.
Standard of Review
Appellate courts review a trial court’s ruling on a motion for continuance for an
abuse of discretion. Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000).
Applicable Law
While the United States Supreme Court has recognized that the fundamental
constitutional right of access to the courts requires prison authorities to assist inmates
in the preparation and filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons trained in the law, Bounds v.
Smith, 430 U.S. 817, 828 (1977), overruled on other grounds by Lewis v. Casey, 518 U.S. 343
(1996), the Court held in Lewis v. Casey that Bounds “did not create an abstract,
freestanding right to a law library” and “does not guarantee inmates the wherewithal
to transform themselves into litigating engines.” Lewis v. Casey, 518 U.S. 343, 351, 355
(1996); see Johnson v State, 257 S.W.3d 778, 780 (Tex. App.—Texarkana 2008, pet.
ref’d). Indeed, many federal courts, including the Fifth Circuit, have held that a
prisoner who knowingly and voluntarily waives his right to appointed counsel is not
entitled to access to legal resources in preparing his defense. Johnson, 257 S.W.3d at
44
780; see Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir. 1996) (holding that a pro se
defendant has no constitutional right to access a law library in preparation of his
defense for trial). If an incarcerated defendant claims to have suffered from lack of
library access, the Supreme Court requires that he show that he suffered an actual
injury from the deprivation. Lewis, 518 U.S. at 351.
Analysis
The trial court did not abuse its discretion when it denied appellant’s request
for access to the law library in his motion for continuance because appellant had no
right to access legal resources to prepare for his defense. Johnson, 257 S.W.3d at 780.
Indeed, as the Fifth Circuit has held, by waiving his right to counsel, appellant was not
entitled to extra access to legal resources, including the law library, to prepare his
defense at trial (2 Pretrial RR. at 10). Degrate, 84 F.3d at 769. Thus, the trial court did
not abuse its discretion when it informed appellant that lack of access to the law
library was a danger of representing himself.
As the trial court did not abuse its discretion when it denied appellant’s request
for extra access to the law library in his motion for continuance, this Court should
overrule appellant’s point of error.
45
REPLY TO APPELLANT’S TWELFTH POINT OF ERROR
XII. The trial court did not err when it denied appellant’s motions to set aside
the indictments.
Appellant next complains that the trial court abused its discretion when it
denied his motions to set aside the indictments in his cases because the trial court
noted that appellant’s arguments regarding the complaints filed in his case were not
relevant or germane to the validity of his indictments (1 Pretrial RR. at 24-25).
However, the trial court did not abuse its discretion in denying appellant’s motions to
set aside the indictments because the legal argument appellant presented attacking the
validity of the complaints filed in his cases was insufficient to set aside the charging
instruments (1356098 CR at 51-55; 1356099 CR at 93-97; 1 Pretrial RR. at 24-25).
Thus, this Court should overrule appellant’s twelfth point of error.
Standard of Review
Appellate courts review a trial court’s ruling on a motion to set aside an
indictment on a question of law de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex.
Crim. App. 2004).
Applicable Law
A valid complaint is a prerequisite to a valid information. TEX. CODE CRIM.
PROC. ANN. art. 21.22 (West 2006); Zorrilla, 404 S.W.3d at 735; Ho, 856 S.W.2d at 497.
However, a compliant is not required for a grand jury to indict a defendant on felony
46
charges as it is required in order for the State to proceed on a misdemeanor
information. TEX. CODE CRIM. PROC. ANN. Ch. 21; Ferguson, 335 S.W.3d at 681-82.
Analysis
The trial court did not abuse its discretion when it denied appellant’s motions
to set aside the indictments because appellant’s arguments regarding the sufficiency of
the complaints filed in his case were inapplicable to the validity of the indictments in
his case (1356098 CR at 51-55; 1356099 CR at 93-97; 1 Pretrial RR. at 24-25). The
complaints filed in appellant’s cases had no effect on the validity of his indictments
because there is no statutory requirement for the State to file a complaint before a
grand jury issues an indictment unlike the requirement that a valid complaint be filed
before a valid information can be issued. See Ferguson, 335 S.W.3d at 681-82. In his
brief and in his motions at trial, appellant did not produce any citation to legal
authority to show that a valid complaint must be filed before a grand jury can issue a
valid indictment. See Ferguson, 335 S.W.3d at 681-82. Thus, the trial court did not
abuse its discretion, and this Court should overrule appellant’s point of error.
REPLY TO APPELLANT’S THIRTEENTH POINT OF ERROR
XIII. The State did not knowingly offer perjured testimony at trial.
In his next multifarious point of error, appellant alleges that the State knowing
proffered perjured testimony at trial.14 Appellant points to discrepancies between
14
Again, appellant advances a multifarious argument alleging violations to his federal rights under
the Fifth, Sixth, and Fourteenth Amendments as well as to his due course of law rights under article
47
Jose’s testimony and the medical records offered into evidence as proof that the State
introduced false evidence at trial and failed to correct the perjured testimony.
However, appellant has failed to demonstrate that Jose offered perjured rather than
mistaken testimony.
Applicable Law
The Fourteenth Amendment prohibits the knowing use of perjured testimony
by the prosecution. Mooney v. Holohan, 294 U.S. 103, 112 (1935); Vasquez v. State, 67
S.W.3d 229, 239 (Tex. Crim. App. 2002); Ex parte Castellano, 863 S.W.2d 476, 479
(Tex. Crim. App. 1993). Even when the prosecutor does not instigate the perjury, he
is obligated to correct any perjured testimony given by one of his witnesses. Vasquez,
67 S.W.3d at 239; but see Luck v. State, 588 S.W.2d 371, 373 (Tex. Crim. App. 1979).
However, a defendant on appeal bears the burden of showing that the testimony used
by the State was in fact perjured. Luck, 588 S.W.2d at 373.
If the defendant is able to show that the State used of perjured testimony,
reviewing courts will consider that testimony material unless the court is convinced
beyond a reasonable doubt that this testimony did not contribute to the conviction or
punishment in question. See United States v. Bagley, 473 U.S. 667, 679-80 (1985);
Castellano, 863 S.W.2d at 485.
I, sections nineteen and ten of the Texas Constitution. Appellant’s Br. 16. As appellant fails to
include any citations to support his arguments, his point of error is inadequately briefed as well as
multifarious, and the State will only address appellant’s argument regarding his due process claims.
TEX. R. APP. P. 38.1(i); Lucio, 351 S.W.3d at 896-97; Foster, 101 S.W.3d at 499.
48
Analysis
a. Jose did not provide perjured testimony at trial.
In his brief, appellant alleges that the State offered the perjured testimony of
Jose and knew that the testimony was false when he testified to details of the night of
the offense that differed from the medical records introduced at trial.
Appellant first alleges that Jose’s testimony about losing consciousness and not
being able to breathe is false because it differs from the Houston Fire Department
report that noted that Jose never lost consciousness or had trouble breathing (4 RR at
39-40; Def. Ex. 6). Appellant’s Br. 17. Appellant next quibbles with Jose’s testimony
that he believed that he was taken to M.D. Anderson Hospital when the medical
records reveal that he was instead taken to Memorial Hermann Hospital (4 RR at 40;
State’s Ex. 33). Appellant also asserts that Jose further perjured himself when he
testified to his belief that he was in the hospital for weeks and spent about a week in
intensive care when the medical records show that he was in the hospital for about a
week and was in intensive care for three days (4 RR at 41; State’s Ex. 33). Appellant
also points to Jose’s testimony on cross-examination that he remembered being “Life
flighted” to the hospital when records establish that he was taken by ambulance (4 RR
at 46-47; State’s Ex. 33), and that he saw his son in the hospital two days after he was
49
shot when the medical records included a notation that Jose’s son visited him the day
of the shooting as evidence that Jose committed perjury (4 RR at 48; State’s Ex. 33).15
Despite appellant’s claims, none of these allegations amount to perjury; instead,
they indicate that Jose was mistaken as to the minute details of his medical condition
and care as a result of the shooting. See Vasquez, 67 S.W.3d at 239 (holding that
Vasquez failed to demonstrate that a witness lied instead of being mistaken); Losada v.
State, 721 S.W.2d 305, 312 (Tex. Crim. App. 1986) (holding that confusion of dates
“does not in and of itself show perjury” and that “[d]iscrepancies in testimony alone
do not make out a case of perjury”). Thus, appellant has not met his burden of
showing that Jose provided perjured testimony instead of simply being mistaken when
he told the jury that he passed out, could not breath, and was taken to M.D.
Anderson. As such, this Court should deny appellant’s thirteenth point of error.
b. Jose’s testimony regarding his medical condition and care as a result of
the shooting did not contribute to appellant’s conviction beyond a
reasonable doubt.
Assuming for the sake of argument that Jose’s testimony was perjury, it did not
contribute to appellant’s conviction beyond a reasonable doubt. See Bagley, 473 U.S. at
679–80; Castellano, 863 S.W.2d at 485. A wealth of evidence from other bystanders
proved that appellant intentionally shot Jose and caused him serious bodily injury
15
The Court of Criminal Appeals noted in Luck, that when the testimony to which appellant
complains was developed solely during his cross-examination of the witness, no due process
violation occurs. Luck, 588 S.W.2d at 373.
50
without Jose’s testimony regarding his consciousness, ability to breathe, where he was
taken for medical treatment, and how long he stayed in the hospital (2 RR at 116, 137;
4 RR at 33, 35, 38, 40). As the miscellaneous details to which Jose mistakenly testified
did not contribute to appellant’s conviction, Jose’s mistaken testimony was harmless.
Thus, this Court should overrule appellant’s point of error.
CONCLUSION
The State of Texas respectfully urges the Court to overrule appellant’s points of
error and affirm his conviction.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
dessauer_carly@dao.hctx.net
curry_alan@dao.hctx.net
51
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has
a word count of 13,350 words, based upon the representation provided by the word
processing program that was used to create the document. TEX. R. APP. P. 9.4(i).
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
52
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument will be served to
appellant by mail on February 19, 2015:
Samuel Espinoza Rodriguez
TDCJ # 1858964
Polunsky Unit-AD. Seg.-Death Row
3872 F.M. 350 South (12-0-75)
Livingston, Texas 77351-8580
/s/ Carly Dessauer
____________________________________________________________________________________________________________________________________________________________________________________
CARLY DESSAUER
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5826
State Bar No. 24069083
Date: February 19, 2015
53