Bell-DW v. Lawrence et al

IN THE

TENTH COURT OF APPEALS

No. 10-96-044-CV

     DARRYL WAYNE BELL,

                                                                                              Appellant

     v.

     W. LAWRENCE, ET AL.,

                                                                                              Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 28,809

                                                                                                    

MEMORANDUM OPINION

                                                                                                    

      Darryl Bell attempts to appeal from the court's dismissal of his in forma pauperis petition. Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1996). Because Bell failed to perfect his appeal, we will dismiss for want of jurisdiction.

      The court signed an order dismissing Bell's suit on February 12, 1996. Bell filed a notice of appeal on February 26. The transcript was filed in this court on February 29. Upon examining the transcript, we determined that Bell had not duly perfected his appeal, and notified him of this defect by letter. Tex. R. App. P. 40(a)(1), 56(a). On March 27, he filed an "Affidavit In Support of Motion to Proceed on Appeal in Forma Pauperis" in this court.

      Perfection of an appeal is required to invoke our jurisdiction. Welch v. McDougal, 876 S.W.2d 218, 220-22 (Tex. App.—Amarillo 1994, writ denied); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App.—El Paso 1992, writ denied). Because Bell is not exempt from paying the costs on appeal, he is required to file either a cost bond, a cash deposit, or an affidavit of inability to pay costs to perfect this appeal. Tex. Civ. Prac. & Rem. Code Ann. §§ 6.01-6.03 (Vernon 1986 & Supp. 1996); Tex. R. App. P. 40(a)(1), (a)(3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App.—Corpus Christi 1990, no writ). His notice of appeal is insufficient to perfect the appeal. Id.

      However, because his notice of appeal is a bona fide effort to invoke our jurisdiction, we have jurisdiction to allow him the opportunity to properly perfect his appeal. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). Included within the proper perfection of an appeal is the filing of the appropriate instrument, within the appropriate time, in the appropriate court. Tex. R. App. P. 40(a)(1), 41(a)(1); Chavez v. Housing Auth. of El Paso, 897 S.W.2d 523, 526 (Tex. App.—El Paso 1995, writ denied); El Paso Sharky's, 831 S.W.2d at 5. Bell's filing of an affidavit of inability to pay costs in this court does not remedy the defect so that this appeal is properly perfected. See id.; also Tex. R. App. P. 55(b).

      We notified Bell that the transcript did not demonstrate that his appeal had been duly perfected. Tex. R. App. P. 56(a), 60(a)(2). Even though given the opportunity to cure the defect, he has failed to properly perfect this appeal. Id. 40(a)(1), 83. Thus, the transcript does not show that this court has jurisdiction and "after notice it [has] not [been] amended." Id. 56(a).

      Therefore, we dismiss this cause for want of jurisdiction. Id.

                                                                               PER CURIAM

Before Justice Cummings and

            Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed April 10, 1996

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ate, 82 S.W.3d 64, 66-67 (Tex. App.San Antonio 2002, pet. ref'd) (stating that if a prospective juror responded to a question by stating that he would automatically disbelieve a defendant's testimony simply because he was the defendant, that person would be stricken for cause). Thus, the questions meet the second Standefer prong for proper commitment questions. See Lydia, 117 S.W.3d at 906. Smith does not contend that the questions contained more facts than necessary, but only that the questions were improper commitment questions because they committed the venire to not considering whether the victim was a bad guy, a gangster and not a saint in their deliberations. We overrule issue one.

Improper Comments by Trial Court

Smith complains that the trial court made comments during voir dire, which vitiated the presumption of innocence and improperly created a bias in favor of the victim. Smith admits he did not object to these comments, but contends that they constitute fundamental error, which requires no objection. He further contends that these comments compounded the harm from the States improper commitment questions, although we have determined that they were not, in fact, improper commitment questions in Smiths first issue.

Without a contemporaneous objection, error is generally waived, and in that instance, an appellate court may only review fundamental error. See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.Houston [14th Dist.] 2006, pet. ref'd); Tex. R. Evid. 103(d). Because Smith failed to object at trial, the comments must rise to the level of fundamental error to be preserved for appeal. To support his fundamental-error argument, Smith relies primarily on Blue v. State. 41 S.W.3d 129 (Tex. Crim. App. 2000). In Blue, a plurality of the Court of Criminal Appeals held that the trial court's comments explaining to the jury that the defendant had attempted to enter into a plea bargain with the State and that the trial court would have preferred a guilty plea vitiated the presumption of innocence before the venire, constituted fundamental error and, therefore, required no objection. Id. at 132-33.

The first comments by the trial court that Smith now contends vitiates his presumption of innocence went as follows:

[I]n every criminal case, , a defendant is presumed to be innocent. That is, nobody has to prove thats another way of saying nobody has to prove theyre not guilty. Its up to the prosecution to prove a defendant guilty, if they can.

 

And up until the time they do that, the jury is required to presume the defendant not guilty. And also, in conjunction with this right not to right to be presumed innocent and right not to have to prove theyre innocent is the right not to have to testify in order to prove your innocence in a criminal case.

 

This has -- Ill visit this later again. This really doesnt have any application in a civil case. Theres no Fifth Amendment right in civil cases, but well get to that later. In other words, one party or the other can call each others witnesses and each others plaintiff and defendant in order to prove their case. But criminal cases, prosecution cant call the defendant as a witness. The defendant is not required to be a witness in the case because theyre not required to prove their innocence.

 

To give you an example of that, suppose three witnesses got on the witness stand that the prosecution called and each one of those witnesses testified, I saw the defendant commit each and every element of the indictment thats alleged in the offense. And I personally saw them do that and I know they did that. And the prosecution put on three witnesses to say that.

 

And the defense didnt say anything. They didnt cross-examine the witnesses. They didnt present any witnesses of their own. They didnt even call the defendant to the witness stand to say, I didnt do what they say I did. In the event the defendant elects to do that, you cannot take that as a circumstance against the defendant. And you cant consider it as any evidence against the defendant.

 

And if you evaluate this prosecutions testimony and you look at witness number one who said I saw the defendant do all this, you may decide, well, that witness, when he got on the stand, was obviously intoxicated. Im not even sure he understood the questions. It sounded like the prosecution was spoon-feeding him. The second witness, hes absolutely insane. He didnt tell the same story twice.

 

Even on direct examination, he kept wishy-washing around. The third witness, he has such an ax to grind against the defendant for whatever reason that he could you know, his testimony is just tainted beyond belief because he just obviously really has something against the defendant. So I really cant I dont really -- cant really buy all the States witnesses on this case.

 

But you know what, the defense didnt put on any witnesses. The defense the defendant didnt tell me he didnt do it. And so even though the witnesses for the prosecution are shaky and theres not enough to convince me beyond a reasonable doubt that the defendant committed the offense, he must have because he didnt tell me he didnt do so. And so, therefore, Im going to find him guilty.

 

Thats what you cant do. So if a defendant elects not to testify, you cannot take that as a circumstance against him. On the other hand, if the defense elects to put on a defense and suppose we had those same shaky witnesses from the prosecution, and the prosecution put on these shaky witnesses and you had the same feelings about them, saying, boy, I cant wait to get back to the jury room because Im going to find these guys, or whoever the defendant is, not guilty as quick as I can because the prosecutions evidence is just pitiful and I couldnt find anybody guilty beyond a reasonable doubt on this case.

 

But the defense, for whatever reason, they decide not to rest because they want to hit that home run. They want that Guinness Book of Records, jury verdict in less than two seconds, or for whatever reason, they decide to put on a defense. And they put on witnesses and they put on the defendant. And after listening to the defendant and listening to their side of the case, even though at the first part of the case you said, shoot, Im going to vote not guilty, after hearing the second part of the case and after hearing the second set, boy, after I hear that testimony, Im convinced beyond a reasonable doubt the defendant did commit the offense.

 

So if a defendant does not elect to testify, you cant take that as a circumstance against them. If a defendant elects to testify, then their testimony is just like any other testimony that may be offered in the case and you can consider it in determining a verdict for guilty or not guilty. Okay?

 

Reporters Record Volume 6, pages 55-58 (emphasis added).

Smiths complains of the two italicized sections in the above section. He contends that the trial court improperly commented on his right to remain silent when the trial court said, They didnt even call the defendant to the stand to say and for whatever reason, they decide to put on a defense. And they put on witnesses and they put on the defendant. Taking the statements in the context in which they were made, we cannot say that they constituted a comment on the Smiths right to remain silent or that they vitiated Smiths presumption of innocence. See Jasper, 61 S.W.3d at 421 (holding that, even under the reasoning of the Blue plurality, the trial judge's comments would not rise to the level of fundamental error); Ganther, 187 S.W.3d at 650-51 (concluding that, even if court of appeals were bound by the Blue plurality, the trial judge's comments during voir dire did not rise to the level of tainting the presumption of innocence or vitiating the impartiality of the jury).

Smiths other contention is that the trial court erred in making comments that enhanced the States improper commitment questions regarding the victims criminal history. The trial court clarified the States question to the venireperson by stating that because a person committed a crime in the past does not give the general public permission to commit a crime against him free from prosecution, later using an illustration of the St. Valentines Day Massacre when some gangsters lined other gangsters up on a wall and executed them and that to do so is not justifiable, but is still murder. No objection was lodged to the trial court making improper comments or demonstrating bias to the jury. Smith now contends that the trial courts references to gangsters imply that he is a guilty gangster criminal which vitiated the presumption of innocence.

We reject Smith's characterization of the trial court's comments and conclude from our review of the record that none of the court's complained-of comments rise to the level of fundamental error obviating the need to object in the trial court. See Jasper, 61 S.W.3d at 421; Ganther, 187 S.W.3d at 650-51. Because Smith did not object to the trial court's comments and because the alleged error was not fundamental error, Smith's complaint has been waived. See Tex. R. App. P. 33.1(a); Jasper, 61 S.W.3d at 421. We overrule issue two.

Admissibility of Prior Convictions

Smith filed a pre-trial motion to testify free from impeachment by his prior convictions. Under Texas Rule of Evidence 609(a), the credibility of a witness may be attacked with a prior felony conviction or a conviction that involved moral turpitude. Tex. R. Evid. 609(a). Before the evidence is admitted, the trial court must determine that the probative value of the evidence outweighs its prejudicial effect to the party. Id.

In this case, we do not reach the merits of Smith's argument because he did not testify at trial and has not otherwise indicated what his testimony would have been. See Jackson v. State, 992 S.W.2d 469, 479 (Tex. Crim. App. 1999); Yanez v. State, 199 S.W.3d 293, 303 (Tex. App.Corpus Christi 2006, pet. ref'd); Caballero v. State, 919 S.W.2d 919, 923 (Tex. App.Houston [14th Dist.] 1996, pet. ref'd); Richardson v. State, 832 S.W.2d 168, 172 (Tex. App.Waco 1992, pet. ref'd). To preserve error on a trial court's ruling that permits the State to impeach a defendant with prior convictions, the defendant must have testified. Jackson, 992 S.W.2d at 479 (citing Luce v. United States, 469 U.S. 38, 43, 105 S. Ct. 460, 464, 83 L. Ed. 2d 443 (1984) (holding that a defendant must actually testify to preserve error on improper impeachment under Federal Rule of Evidence 609(a)).; Yanez, 199 S.W.3d at 303; Caballero, 919 S.W.2d at 923. A reviewing court is unable to weigh the probative value of the proffered testimony against its prejudicial effect without a factual record of the appellant's testimony at trial. Jackson, 992 S.W.2d at 479; Yanez, 199 S.W.3d at 303; Caballero, 919 S.W.2d at 923. Without such a record, there is no impeachment evidence for prior convictions and we cannot sufficiently review for error. See Long v. State, 245 S.W.3d 563, 573 (Tex. App.Houston [1st Dist.] 2007, no pet.); Yanez, 199 S.W.3d at 303. Therefore, we overrule Smiths third issue.

Brady Violation

Smiths next complaint is that the State violated the requirements of Brady v. Maryland regarding the production of exculpatory and impeachment evidence. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A prosecutor has an affirmative duty to turn over material, favorable evidence to the defense. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). To determine whether a prosecutor's actions violate a defendant's due process rights, we employ a three-part test. We consider whether: (1) the prosecutor failed to disclose evidence; (2) the evidence is favorable to the accused; and (3) the evidence is material (i.e., whether a reasonable probability exists that the result of the proceeding would have been different if the evidence had been disclosed to the defense). Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); Little, 991 S.W.2d at 866. When, as here, the disclosure of evidence occurs at trial, the issue becomes whether the tardy disclosure prejudiced Smith. Id. If Smith received the material in time to use it effectively at trial, his conviction should not be reversed just because it was not disclosed as early as it should have been. Id.

Smith contends there were two Brady violations: (1) that the State did not disclose the criminal history of the victim in writing until the day of trial, and (2) that the name of the owner of a firearm found on the ground near where Smith and his co-defendant were stopped was not disclosed until near the close of the States case through a witness for the State even though the State was aware of his identity approximately four days prior to the witnesss testimony. However, it is apparent from the record that Smith knew of the victims criminal history prior to trial and was able to question him extensively about his criminal history during his testimony. He did not ask for a continuance at any time to investigate either of these issues. The trial court ruled that Smith would be allowed to recall any witness that had previously testified to question them about this information, although Smith did not do so. Further, regarding the firearm, two firearms were located at that time, one of which was in the vehicle and was registered to Smiths spouse. A loaded magazine fell out of Smiths lap when he got out of the vehicle after law enforcement stopped him. The gun owned by Smiths spouse was located in the console of the vehicle. The magazine fit that firearm, and the firearm had a bullet in the chamber that matched those in the magazine that had fallen from Smiths lap. Additionally, Smith admitted to ownership of the firearm to the officer on the scene. The issue regarding the identity of the owner of the gun was solely related to the other firearm recovered on the ground near where Smiths vehicle was stopped. Assuming without deciding that the failure to disclose the evidence would constitute a Brady violation, we find that Smith has made no showing that he was prejudiced by the tardy disclosure of the information. We overrule Smiths issue four.

Adoption of Issues of Co-Defendant

Smith requested this Court to allow him to adopt his co-defendants issues on appeal. The State has objected to this. We deny this request. It is the obligation of each defendant to raise all of his issues for appeal in his brief. Tex. R. App. P. 38.1(f) (The brief must state concisely all issues or points presented for review. (emphasis added)). Additionally, it is not the obligation of this Court to create or restructure Smiths argument for him to make it fit his case, which would likely be necessary in an analysis of issues raised by his co-defendant and not by him.

Conclusion

We find that the State did not ask improper commitment questions to the venire panel. We also find that any error regarding the trial courts comments is not fundamental error, and because there was no objection, that issue is waived. We find that the trial court did not abuse its discretion in denying Smiths motion to testify free from impeachment by his prior convictions. We find that Smith did not establish that he was prejudiced by any Brady violation. We deny Smiths request to adopt his co-defendants issues on appeal. We affirm the judgment.

 

TOM GRAY

Chief Justice

 

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed November 25, 2009

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