David Thomas v. State

Opinion Issued October 15, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00305-CR

DAVID THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1114267

O P I N I O N

Appellant, David Thomas, was convicted of possessing cocaine weighing more

than four grams and less than 200 grams with an intent to deliver. (1) Appellant pled

true to both enhancement paragraphs alleged in the indictment, and the trial court

sentenced him to imprisonment for 35 years. Appellant asserts seven points of error.

In five points of error, appellant argues that the trial court erred by: (1) denying the

motion to suppress evidence; (2) denying a requested continuance; (3) denying a new

trial, based on evidence that denial of the continuance was harmful; (4) not permitting

impeachment of the police officers; and (5) permitting impeachment of appellant with

his 1982 conviction and the life sentence imposed for that conviction. In his sixth

point of error, appellant argues that the trial court's modified Allen charge was

coercive, thereby denying appellant's right to trial by jury. In his seventh point of

error, he argues that one of the prior convictions used for enhancement purposes was

not proved properly because the judgment indicates a different conviction date and

a "deferred finding" of guilt.

We affirm.

Background

In April 2007, Officer D. Garza received information from a confidential

informant of a pending drug deal. The informant described the person who would

deliver the drugs as a black male between 50 and 55 years of age, between five feet

eight inches and five feet ten inches tall, and weighing between 180 and 200 pounds.

The informant stated that the transaction would occur at a specified Whataburger

restaurant at nine p.m. The informant also indicated that the person delivering the

drugs would arrive in a grey Chevy Cavalier and would be wearing tan shorts and an

orange colored shirt.

Based on the informant's tip, Officer Garza organized surveillance of the

specified Whataburger restaurant. When appellant arrived matching the informant's

description of the suspected drug dealer, Garza requested that a uniformed officer

detain him. Officer M. Chapnick responded to Garza's request.

Officer Chapnick entered the restaurant and went to the restroom to detain

appellant. When Officer Chapnick opened the restroom door, he directed appellant

to put his hands behind his back. Appellant took an aggressive posture, raising his

hands. Appellant then reached for his waistband, which Officer Chapnick perceived

as a threat because drug suspects often carry weapons in their waistbands. Officer

Chapnick attempted to forcibly restrain him. Appellant struggled with the officer,

jerking his hands away as Officer Chapnick attempted to gain control over appellant.

Eventually, Officer Chapnick took appellant to the ground, where the officer had a

better chance of gaining control of his hands. When Officer Chapnick knocked

appellant to the floor, appellant's face was injured. Although on the floor, appellant

continued to resist.

Officer C. Rozek and Officer S. Zakharia entered the restroom to assist Officer

Chapnick in establishing control over appellant. At some point when appellant was

on the floor, Derrick Glover, an employee of the Whataburger, went to the bathroom

and saw the police on top of appellant. Glover claims that he never saw appellant

fight or resist the police, but he conceded on cross-examination that appellant could

have been reaching for a weapon when appellant was on the floor and being

restrained by the police. The three officers handcuffed appellant, conducted a search

for weapons, and moved him out of the restroom.

The police took appellant outside, where Officer Rozek conducted a thorough

search of appellant and his clothing. During this search, a paper towel containing two

plastic sandwich bags of powdered cocaine and two rocks of "crack" cocaine fell

from appellant's waistband. The combined weight of the powdered cocaine and the

"crack" rocks was about two ounces.

At trial, appellant took the stand and testified in his own behalf. Appellant

testified that he had gone to the Whataburger to confront a man with whom he had

a personal issue. According to appellant, when he was unable to locate the man in the

main area of the restaurant, he checked the restroom. As he was leaving the

Whataburger restroom, Officer Chapnick hit him in the eye without provocation.

Appellant testified that after being hit, he knelt down on the floor immediately, that

Officer Chapnick then forced him to lie faced down on the ground, and that he

permitted Officer Chapnick to handcuff him. Appellant testified further that, once he

was handcuffed, two additional officers arrived and began kicking and punching him.

The officers then took appellant outside, where appellant alleged that they planted the

cocaine on him. (2) Procedural History

Five of appellant's grounds for appeal concern the trial court's rulings on

procedure. Appellant's first ground for appeal concerns his motion to suppress the

cocaine that was taken from him at the time of his arrest. The trial court held a pre-trial hearing on this and denied the motion. Grounds two and three concern two

different motions for continuance. Appellant's trial counsel filed the first motion on

April 10, 2008, claiming that appellant's prescribed pain medicine rendered appellant

incompetent to stand trial. Appellant filed the second motion for a continuance pro

se on April 11, 2008, after voir dire, alleging that his trial counsel was unprepared for

trial. The trial court denied both motions. Appellant's fourth ground for appeal

concerns the trial court's ruling that appellant could not impeach the testimony of the

arresting officers with a civil suit that appellant had filed against them and the

Houston Police Department. (3) Appellant's fifth point of error concerns the

admissibility of his prior convictions. Discussion

A. Motion to Suppress In his first point of error, appellant contends the trial court erred in denying his

motion to suppress evidence obtained through an alleged unlawful search and seizure.

The State argues that appellant waived his complaint regarding the admission of the

cocaine because appellant's trial counsel affirmatively agreed to the admission of the

evidence during trial.

Before trial, appellant filed a motion to suppress the cocaine that the police

discovered when they searched appellant. In his motion, appellant merely contended

that the evidence "was seized in violation of the United States Constitution and the

Constitution of the State of Texas." The trial court denied appellant's motion to

suppress, and the State introduced the evidence during its direct examination of

Houston Police Department criminalist Amanda Phillips. The State offered the

cocaine into evidence as State's Exhibits 6, 9, and 10; Phillips identified State's

exhibits 6 and 9 as cocaine in powder form and State's Exhibit 10 as cocaine in rock

form. When the State offered the exhibits, appellant's trial counsel stated, "[W]e

have no objection, Your Honor." The court then admitted these exhibits.

In general, when a court overrules a pretrial motion to suppress evidence, the

defendant need not object to the same evidence in order to preserve the error on

appeal. Brown v. State , 183 S.W.3d 728, 741 (Tex. App.--Houston [1st Dist.] 2005,

pet. ref'd) (citing Moraguez v. State , 701 S.W.2d 902, 904 (Tex. Crim. App. 1986)).

However, when a defendant affirmatively states that he has "no objection" to the

admission of the complained of evidence, the defendant waives any error in the

admission of the evidence. Brown , 183 S.W.3d at 741 ; see also Harris v. State , 656

S.W.2d 481, 484 (Tex. Crim. App. 1983) (holding that appellant's complaint that trial

court erred in overruling his motion to suppress evidence obtained as result of illegal

seizures was rendered moot when State offered complained of evidence and defense

counsel affirmatively stated "no objection"). Here, the record reflects that appellant

obtained an adverse ruling on his pretrial motion to suppress. However, when the

State offered the offending evidence during trial, appellant's trial counsel waived any

error in the admission of the evidence by affirmatively stating, "[W]e have no

objection, Your Honor." See Brown , 183 S.W.3d at 741 .

We overrule appellant's first point of error.

B. Motions for Continuance

In his second and third points of error, appellant argues that the trial court erred

in denying his pretrial motions for continuance and in denying him a new trial based

on evidence that the denial of a continuance was harmful. Appellant's first motion

for continuance contended that he would not be able to assist his attorney during trial

due to the effects of pain medications appellant was taking as a result of surgery he

had undergone at the end of March 2008. Appellant based his second motion, a pro

se motion, on his contention that his trial counsel was unprepared for trial.

A trial court's ruling on a motion for continuance is reviewed under an abuse

of discretion standard. Janecka v. State , 937 S.W.2d 456, 468 (Tex. Crim. App.

1996).

1. Appellant's First Motion

Appellant's principal contention in his first motion for continuance was that

he was not competent to assist his attorney due to prescribed pain medication. Texas

courts determine competency according to article 46B.003 of the Texas Code of

Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon 2008).

When competency is raised, the trial court "shall determine by informal inquiry

whether there is some evidence from any source that would support a finding that the

defendant may be incompetent to stand trial." Id. art. 46B.004(c) (Vernon 2008).

The trial court is the sole trier of fact and thus evaluates witnesses' testimony and

credibility. Torres v. State , 182 S.W.3d 899, 902 (Tex. Crim. App. 2005) . The denial

of a motion to suppress is reviewed for abuse of discretion, and we give great

deference to the trial court's determination of historical facts while reviewing de novo

the trial court's application of the law. Balentine v. State , 71 S.W.3d 763, 768 (Tex.

Crim. App. 2002). In reviewing this determination, the trial court's findings are

entitled to great deference. McDaniel v. State , 98 S.W.3d 704, 713 (Tex. Crim. App.

2003).

Based on its role as the reviewer of facts and credibility, the trial court, in

accordance with article 46B.004(c) of the Code of Criminal Procedure, conducted an

inquiry into the condition and abilities of appellant. Appellant stated that the pain

medication affected his ability to think "a little bit" and that it made him "kind of

dizzy." However, appellant was able to communicate with his attorney on the record,

and the trial court determined that appellant seemed "very able to answer . . .

questions." Furthermore, while appellant did encounter difficulties when testifying

in his own behalf, his answers indicated that he understood the questions presented

to him. Appellant did not provide the trial court with testimony or an affidavit from

a physician to support his argument. On appeal, appellant argues that the difficulties

he encountered while testifying on his own behalf, as well as the inconsistencies that

developed from these difficulties, illustrate his impairment.

The examples provided by appellant do not indicate that the trial court abused

its discretion. The trial court complied with the Code of Criminal Procedure and

evaluated appellant's competency.

2 . Appellant's Second Motion

Appellant filed a pro se motion for continuance complaining of his counsel's

unpreparedness. Among other arguments, appellant contended that his attorney failed

to argue that the drugs were produced after he was arrested, that the drugs may have

come from the gas tank of his car, and that someone else had driven the car earlier

that day. As additional evidence of his incapacity, appellant points to his mistake in

identifying the police officer who first entered the Whataburger restroom.

Ordinarily, a criminal defendant currently represented by counsel is not entitled

to hybrid representation. Bledsoe v. State , 178 S.W.3d 824, 827 (Tex. Crim. App.

2005) (citing Landers v. State , 550 S.W.2d 272 (Tex. Crim. App. 1977)). However,

the Court of Criminal Appeals has determined that if a trial court rules on a pro se

motion when a criminal defendant is represented by counsel that decision is subject

to appellate review. Robinson v. State , 240 S.W.3d 919, 922 (Tex. Crim. App. 2007).

The record indicates that the trial court ruled on appellant's motion rather than

denying appellant the opportunity to present the motion. When the trial court rules

on such a motion, the motion is "subject to review on appeal." Id. at 922 .

Appellant's pro se motion, submitted on the first day of trial, alleges that

appellant's counsel was not prepared for trial. Although appellant did not specifically

designate his request as a motion for continuance, appellant did request that the trial

court grant him additional time to prepare for trial due to his counsel's alleged lack

of preparation.

The record reflects that appellant filed his motion on the morning of April 11,

after the completion of voir dire. Appellant's counsel did not join appellant's motion

and denied appellant's accusations. The record indicates that counsel began his

representation of appellant no later than April 28, 2007 and that trial began on April

10, 2008. Appellant claimed his attorney did not subpoena relevant witnesses, that

his attorney did not come to the jail to speak with him, and that his attorney

conducted an inadequate investigation of his case. The trial court asked appellant to

identify the witnesses that appellant contended his attorney refused to subpoena, and

appellant named Cynthia Clay, Derrick Clover, and Lisa Michelle Smith.

The trial court then asked appellant's attorney to respond to appellant's

allegations. Counsel explained that he talked with appellant on the phone while

appellant was in jail and that he sent his investigator to speak with him. He also

explained that some of the evidence appellant wanted the attorney to gather was

duplicative of evidence the State intended to introduce, and he explained that he

contacted some of the witnesses appellant wanted him to subpoena and that he could

not find others. The trial court denied appellant's pro se motion. Our consideration

of the record does not indicate that the trial court abused its discretion in denying

appellant a continuance based on appellant's pro se motion.

We conclude that the trial court did not err in denying appellant's two motions

for a continuance. Because we have concluded that the trial court did not err in

refusing to grant a continuance, we further conclude that the trial court did not err in

refusing to grant appellant a new trial based on evidence that appellant was harmed

by the denial of his motions for continuance. We also overrule appellant's second

and third points of error. C. Officers' Impeachment with Pending Civil Litigation

In his fourth point of error, appellant argues that the trial court erred in not

permitting him to impeach the testifying police officers with a pending civil suit he

had filed against them. Appellant filed suit against the Houston Police Department

and apparently against at least some of the police officers who were present for

appellant's arrest. Appellant never specified which of the testifying officers he had

sued. Rather, appellant indicated that the suit involved the "officers who testified

here previously." The State presented seven witnesses, all police officers or

employees of the Houston Police Department. Appellant argues that the denial of the

opportunity to impeach the officers resulted in his inability to demonstrate bias in the

officers' testimony, thereby denying him of his constitutional right of confrontation.

The State argues that appellant failed to preserve error because he did not sufficiently

establish the substance of the excluded evidence. Alternatively, the State argues that,

even if error was preserved, the ground is meritless because the trial court did not

abuse its discretion in excluding the evidence.

Rule 38.1(i) of the Texas Rules of Appellate Procedure requires that a "brief

contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record." Tex. R. App. P. 38.1(i). Appellant has cited

no specific facts in support of his authority and no authority for his argument and

therefore has failed to adequately brief this point. Id. Appellant even acknowledges

"one problem which is that defense counsel did not make a record of precisely what

he wanted to bring out before the jury."

We overrule appellant's fourth point of error.

D. Impeachment with 1982 Conviction and Life Sentence Appellant argues, in his fifth point of error, that the trial court erred in denying

his motion to testify free from impeachment by his 1982 conviction of the offense of

unauthorized use of a motor vehicle ("UUMV") and the life sentence imposed for that

conviction. (4) Appellant argues that the trial court should have prohibited

impeachment with this prior conviction because of its remoteness, its low probative

value, and the strong risk of prejudice.

We will not reverse a trial court's decision regarding admissibility of evidence

of a prior conviction unless a clear abuse of discretion is shown. Morris v. State , 67

S.W.3d 257, 262 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). Thus, a trial

court's decision will not be overruled unless it lies outside the zone of reasonable

disagreement. Id. ; Theus v. State , 845 S.W.2d 874, 881 (Tex. Crim. App. 1992).

Rule 609(a) of the Texas Rules of Evidence provides that evidence of

conviction for a prior felony or crime of moral turpitude shall be admitted for

purposes of impeachment if the court determines that the probative value outweighs

the prejudicial effect. Tex. R. Evid. 609(a); Morris , 67 S.W.3d at 263 . However, if

the date of conviction or the release of the witness from confinement is more than ten

years from the moment of impeachment, impeachment is permissible only if the

probative value of the conviction supported by the facts and circumstances

"substantially outweighs" its prejudicial effects. Tex. R. Evid. 609(b); see Morris ,

67 S.W.3d at 263 .

Although the ten year limitations period in Rule 609 usually militates against

admissibility, Texas courts have held that subsequent felony or misdemeanor

convictions involving moral turpitude can be tacked onto remote convictions to cause

them to be evaluated under Rule 609(a) instead of Rule 609(b). See Morris , 67

S.W.3d at 263 (holding that evidence of two intervening felony convictions removed

taint of remoteness from convictions more than 10 years prior, permitting analysis

under Rule 609(a)); LaHood v. State , 171 S.W.3d 613, 620 (Tex. App.--

Houston[14th Dist.] 2005, pet. ref'd).

In the present case, evidence was presented that appellant was convicted of the

offense of delivery of cocaine in 2005 and burglary of a building with intent to

commit theft in 1992. These two intervening felonies remove the taint of remoteness

from the 1982 conviction, making appropriate analysis under Rule 609(a). Admission

of the 1982 conviction was proper, therefore, if the probative value of these

convictions outweighs their prejudicial effect. Morris , 67 S.W.3d at 263 .

In Theus , the Court of Criminal Appeals set out a non-exclusive list of factors

courts should use to weigh the probative value of a conviction against its prejudicial

effect. Theus , 845 S.W.2d at 880 . These factors include (1) the impeachment value

of the prior crime, (2) the temporal proximity of the past crime relative to the charged

offense and the witness's subsequent history, (3) the similarity between the past crime

and the charged offense, (4) the importance of the witness's testimony, and (5) the

importance of the witness's credibility. Id .; LaHood , 171 S.W.3d at 620 .

With respect to the first factor, the impeachment value of crimes that involve

deception or moral turpitude is greater than for offenses that involve violence. Theus ,

845 S.W.2d at 881 . Therefore, when the prior offense is one involving deception, the

first factor weighs in favor of admission. Id. The offense of unauthorized use of a

motor vehicle is a crime of deception. Baca v. State , 223 S.W.3d 478, 484 (Tex.

App.--Amarillo 2006, no pet.). The first Theus factor thus weighs in favor of

admission of appellant's prior conviction for unauthorized use of a motor vehicle.

Id .

The second factor, involving the temporal proximity of the past crime relative

to the charged offense and the witness's subsequent history, favors admission if the

crime in question is recent and the witness has a demonstrated pattern of running

afoul of the law. Theus , 845 S.W.2d at 881 . Appellant's conviction for UUMV was

not recent, occurring more than twenty years prior to the instant offense. However,

appellant's criminal record includes two additional offenses committed within the last

twenty years. See Martin v. State , 265 S.W.3d 435, 444 (Tex. App.--Houston [1st

Dist.] 2007, no pet.). The second factor weighs in favor of admission.

The third factor militates against admission if the prior conviction is similar to

the charged offense. Theus , 845 S.W.2d at 881 . This is so because the admission for

impeachment purposes of a crime similar to that charged presents a situation where

the jury could convict based on the perception of the past conduct rather than the facts

of the present case. Id . Appellant's prior conviction is for UUMV, which is not

similar to the instant offense, possession with intent to deliver cocaine. This factor,

therefore, weighs in favor of admission of the prior offense. Id.

In regard to the final two factors, Theus states that "when the case involves the

testimony of only the defendant and the State's witnesses . . . the importance of the

defendant's credibility and testimony escalates" and "so will the need to allow the

State an opportunity to impeach the defendant's credibility." Id . Here, appellant took

the stand in his own defense. He had one other witness to the events that took place

in the restroom who could speak only to a very short period of that time. Appellant's

credibility was important because the police officers who testified for the State and

appellant were the only direct eyewitnesses to the entirety of the events taking place

in the restroom and in the parking lot. Furthermore, the State's need to impeach

appellant's credibility was great because his testimony contradicted much of the

police officers's testimony of the events taking place in both locations and accused

the officers of beating him and planting evidence. The fourth and fifth factors,

therefore, favor admission of appellant's prior UUMV.

We conclude that under Theus , the trial court did not err in admitting evidence

of appellant's prior convictions. (5)

We overrule appellant's fifth point of error.

E. Modified Allen Charge

In his sixth point of error, appellant argues that the trial court's modified Allen

charge was coercive, thereby denying appellant's right to trial by jury. There is no

evidence in the record that appellant objected to the submission of this charge.

Appellant has, therefore, waived any error with respect to the trial court's decision

to deliver the Allen charge. See Freeman v. State , 115 S.W.3d 183 , 186 n.2 (Tex.

App.--Texarkana 2003, pet. ref'd). Moreover, appellant has cited no authority in

support of his argument. Therefore this issue was briefed inadequately. Tex. R. App.

P. 38.1(i).

We overrule appellant's sixth point of error.

F. Proof of Prior Conviction for Enhancement Purposes

In his seventh point of error, appellant argues that one of his prior convictions

was not properly proved and, therefore, the trial court should not have considered it

in the assessment of punishment. Appellant argues that the State's indictment and

the judgment entered as State's Exhibit 13 list different dates for his conviction for

burglary of a building. Additionally, appellant argues that the judgment itself is

unclear regarding his actual guilt because handwritten changes were made to the

judgment.

The State has the burden of proof to show that any prior conviction used to

enhance a sentence was final under the law and that the defendant was the person

previously convicted of that offense. Flowers v. State , 220 S.W.3d 919, 922 (Tex.

Crim. App 2007). If the State does not prove beyond a reasonable doubt that the

offenses are attributable to the defendant, the evidence may not be considered in the

assessment of punishment. Fields v. State , 1 S.W.3d 687, 688 (Tex. Crim. App.

1999). If, however, a defendant pleads "true" to the enhancement paragraph, the

State's burden of proof is satisfied. Harrison v. State , 950 S.W.2d 419, 421 (Tex.

App., Houston [1st Dist.] 1997, writ ref'd) (citing Harvey v. State , 611 S.W.2d 108,

111 (Tex. Crim. App. 1981)).

Here the record reflects that upon the trial court's reading of the two

enhancement paragraphs, appellant pleaded "true" to both. Appellant's plea of "true"

to both of these enhancements satisfies the State's burden of proof with respect to the

conviction in question. See Harrison , 950 S.W.2d at 421 .

We overrule appellant's seventh point of error. Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Keyes, Alcala, and Hanks

Publish. Tex. R. App. P. 47.2(b).

1. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2008).

2. In the suppression hearing, appellant testified that the police found the drugs in his

car.

3. The record is unclear about whether or not the suit was against the police department

alone or against the police department and the individual officers.

4. Appellant's 1982 unauthorized use of a motor vehicle conviction was enhanced with

two prior felony convictions.

5. Appellant argues that admission of his prior conviction for UUMV is particularly

prejudicial because the life sentence imposed for that conviction indirectly discloses

two additional felony offenses. Appellant waived this particular complaint when he

failed to object at trial. Tex. R. App. P. 33.1(a); Gillenwaters v. State , 205 S.W.3d

534, 537 (Tex. Crim. App. 2006).