1. The defendant is presumed innocent and remains that way unless the State proves its case.

Transcription

1 1. The defendant is presumed innocent and remains that way unless the State proves its case. 2. Defendant has an absolute right to a jury trial unless he that right in writing. 3. is evidence unless it comes from the witness stand or is admitted as an exhibit. 4. It is the primary duty of a prosecutor, but to see that justice is done. 5. Pursuant to & the Michael Morton Act, the prosecutor shall evidence or information that tends to negate the guilt of the accused. 6. The judge has no inherent right to a case on his own motion. 7. The judge cannot publicly comment about a pending proceeding which suggests how the judge. 1

2 8. The interpreter s role is the translate what is said by the participant s into the defendant s/witness language, not to give. 9. The defendant may waive his right to the by signing a waiver in writing and filing it with the court. 10. The defendant s presence is at all pre-trial proceedings. 11. A motion to quash challenges the of the complaint. 12. Any matters not raised or filed 7 days before the pretrial hearing are except by leave of court for good cause shown. 13. Motions in limine, invoking the Rule and the appointment of an interpreter can all be made the day of. 14. The purpose of voir dire is to determine how potential jurors feel about relevant issues so parties can intelligently exercise & peremptory strikes. 15. Each side gets peremptory strikes. 16. Jurors are the judges of facts & credibility of witnesses; they can believe some, none or all of what they hear. 17. No contest (nolo contendere) means the defendant is not saying he did it or did not do it, but fighting the case. 18. Opening statement is not, but simply a statement as to what a party expects the evidence to show. 2

3 19. By the time the State rests, it must have presented at least some evidence on each to survive a motion for directed verdict. 20. The defendant has an absolute right and can rest without calling any witnesses. 21. If the judge the objection, he agrees with the party making the objection. 22. While the parties must formally be given an opportunity to object to the proposed jury charge once evidence closes, the judge can give the parties a proposed jury charge at any time the jury charge conference. 23. No can be raised during closing argument. 24. A guilty verdict means the State has proven its case. 25. If the State has not proven its case beyond a reasonable doubt the verdict must be. 26. A motion for new trial must be made within days in non-record courts and days in courts of record. 3

4 Overview of Pretrial & Trial Procedure Michael Acuña Municipal Judge City of Dallas Basic Concepts Δ is presumed innocent & remains not guilty unless State proves case BRD and burden is entirely on the State Δ has absolute right to jury trial unless he waives that right in writing (even if he refuses to enter a plea) Δ has absolute right not to testify & exercising that right cannot be held against him Unless it comes from witness stand or exhibit is admitted, nothing is evidence Basic Concepts II Even in jury trial, Judge makes all final legal decisions except guilty or not guilty It is the primary duty of a prosecutor not to convict, but to see that justice is done - Arts & (d) C.C.P. Decideshowapersonischarged Only one who can move to dismiss a case (in most instances) Can waive the defendant s presence for trial Goes first and last at trial 1

5 No motion required: Prosecutor Brady Brady v. Maryland, 373 U.S. 83 (1963) Suppression of evidence favorable to an accused violates due process where evidence is material to guilt or to punishment. Shall timely disclose to Δ all evidence/information that tends to negate the guilt of Δ or mitigates the offense. Tex. Disciplinary R. Prof. Conduct 3.09(d) State shall disclose to Δ any exculpatory, impeachment, or mitigating item or information in the possession, custody, or control of the state that tends to negate the guilt of Δ or would tend to reduce the punishment. Art (h) C.C.P. Complaint Complaint (art ) basic charging instrument; sworn allegation charging Δ with an offense Δ is entitled to notice of the complaint the day before any proceeding under the complaint (art ) Δ may waive his right to the complaint by signing a waiver filed with the court and have a trial on the citation (art (d)) Pre-Trial Hearings Legal Authority Article C.C.P. authorizes the court to set any criminal case for a pre-trial hearing Can be by motion of party or court s own motion Order directs Δ, his attorney & the prosecutor appear for a conference & hearing Δ s presence is required at all pre-trial proceedings Δ can t waive his presence Warren v. State, 804 S.W.2d 597 (Tex. App. Houston [1 st District] 1991, no pet.) (requirement not a right) 2

6 Legal Authority II Pre-trial hearing to determine: 1) Arraignment if necessary - fixing identity & hearing Δ s plea; not required in municipal court (art ) 2) Defendant s motions 3) Special pleas - double jeopardy 4) Motions to quash - Challenging the complaint 5) Motion for continuance* - set another date 6) Motion to suppress - Prohibiting State from using evidence 7) Motion in Limine* - Cannot raise issue w/o prior permission 8) Discovery motion to compel 9) Motion to appoint interpreter* 10) Anything else Court wants to address Legal Authority III Art Any such matters not raised or filed 7 days before the pre-trial hearing are waived except by leave of court for good cause shown Record made at the hearing, objections, exceptions, & rulings are part of the trial record Important for appellate reasons Notice of Pre-trial Δ shall have at least 10 days notice in which to raise or file matters listed Art Notice can be by 1) Announcement in open court by judge in presence of Δ or attorney; 2) Personal service to Δ or attorney; 3) Mail by clerk to either Δ or his attorney deposited in mail at least 6 days b/f hearing. If no attorney, mail to Δ at address on bond. If no address on bond, mail to surety 3

7 Pre-trial Procedure Defense Counsel has right to open & conclude argument in all motions submitted by defense (art ) Witnesses can be subpoenaed (art ) Burden of proof on movant Use it for special requests or technical language for jury charge, determination of admissibility of scientific evidence, designation & qualifications of experts, etc. Written or oral? Pre-trial Procedure II Art C.C.P. pleadings may be oral or in writing as court may direct BUT Gov t Code all pleadings must substantially conform to Chapters 27 & 45 Art C.C.P. all motions to set aside & all special pleas & exceptions shall be in writing Discovery Art (a) C.C.P. As soon as practicable after receiving a timely request from Δ the state shall produce: 1) any offense reports, 2) any designated documents, papers, 3) written/recorded statements of the Δ or a witness, including statements of law enforcement officers, or 4) any designated objects or other tangible things 5) not otherwise privileged 6) that constitute or contain evidence material to any matter involved in the action and 7) are in the possession, custody, or control of the state or any person under contract with the state. 4

8 Discovery Art (c) C.C.P. If only part of the applicable document, item, or information is subject to discovery, state is not required to produce or permit inspection of the remaining portion and may withhold or redact that portion. The state shall inform Δ that a portion of the document, item, or information has been withheld or redacted. On request of Δ, the court shall conduct a hearing to determine whether withholding or redaction is justified. (h) Brady exculpatory disclosure Discovery Art (b) C.C.P. If party requests the name & address of experts at least 30 days b/f date jury selection is scheduled to begin or presentation of evidence is scheduled to begin in a bench trial Party receiving request shall disclose in writing not later than 20th day before the date jury selection is scheduled to begin or presentation of evidence is scheduled to begin in a bench trial On motion of a party and on notice to the other parties, the court may order disclosure at an earlier time Michael Morton Case Law Glover v. State, 496 S.W.3d 812 (Tex. App.--Houston [14 th Dist.] 2016) Davy v. State, No CR, 2017 (Tex. App.--Amarillo) 5

9 Pre-Trial Motions (Day of Trial) Motion in Limine Cannot raise issue w/o prior permission Invoking the Rule Barring witnesses from courtroom (except Δ) Appointment of Interpreter Any motion carried by Court to trial Voir Dire (Jury Selection) Purpose: To determine how potential jurors feel about relevant issues so parties can intelligently exercise challenges for cause & peremptory strikes Judge may make introductory remarks Only time potential jurors can speak to parties Voir Dire (Jury Selection) II State goes first Defense goes second Parties do not pick the jury Peremptory strikes: 3 Challenges or cause: legal reasons unlimited 1 st six not struck are the jury 6

10 Voir Dire (Jury Selection) III Ask each party if there are any challenges to the array (Batson) Administer the juror oath Jury Shuffle Only 1 art C.C.P. Excuse the rest of the panel Before Entry of the Plea Padilla inquiry - Judge ensures plea offer relayed to Δ(Padilla v. Kentucky, 559 U.S. 356 (2010)) 1) What is state s offer? 2) Has your attorney conveyed that offer to you? 3) Do you reject offer? Before any plea or trial, parties shall acknowledge in writing or on the record the disclosure & receipt, of all discovery provided to Δ (art C.C.P.) Outside jury s presence - Can do before voir dire. Jury Instructions 1) Please do not deliberate until asked 2) Nothing the parties say is evidence 3) You are not to take any ruling as a comment on the weight of the evidence 4) If parties/witnesses do not talk to you during breaks, they are following my order 7

11 Jury Instructions II 1) Exclusive judges of facts & credibility of witnesses can believe some, none or all of what you hear 2) You are going to take the law I give you and apply it to the facts you determine 3) Parties & witnesses are following my order not to talk to jurors during any recess Reading the Complaint So jury knows what the accusation is So Δ knows what he is accused of doing Can be waived In a bench trial Entry of the Plea Not Guilty invoking the presumption of innocence I did not do it I don t think State can prove it Guilty admission that Δ did it No contest (nolo contendere) not saying Δ did it or did not do it, but not fighting the case If no plea entered by Δ, Judge must enter not guilty plea 8

12 Opening Statement Not argument or testimony Simply a statement as to what a party expects the evidence to show State goes first If State waives opening statement, Δ has to wait until State has rested its case-inchief Δ goes second State s Case-in-Chief State calls witness(es): officer, etc. Swear in each witness For each witness: Direct Examination State asks questions Cross Examination Δ asks questions Redirect Examination State asks questions When the State is finished with its witnesses, then State rests Motion for Directed Verdict Judge takes decision away from jury If when the State rests, there is NO evidence on at least one of the elements, Δ is entitled to a directed verdict NOT a substitute for a motion to quash 9

13 Defense Case Δ has absolute right not to testify Δ has no burden of proof as to guilt & can rest w/o calling any witnesses Can allow Δ to testify in narrative fashion If Δ calls witnesses, for each witness: Direct Examination Defense asks questions Cross Examination State asks questions Redirect Examination Defense asks questions Affirmative Defenses When the Defense is finished with witnesses, the Defense rests Objections Everyone stops talking no interrupting Objections Hey, Judge, the other side is not following the rules of evidence or procedure If Judge sustains objection, Judge agrees If Judge overrules objection, Judge disagrees Give movant a chance to fully state objection; then give other side a chance to respond; movant has chance to reply (if you want) If you are unsure, ask movant/respondent for supporting authority State s Rebuttal Case State can re-call prior witnesses or call new witnesses Same procedures as in State s case-in-chief When this is done, both sides close This means the evidence portion of the trial is finished no new evidence can be admitted (unless you re-open evidence) 10

14 Jury Charge Conference Jury charge is the law that applies to case & jury is sworn to follow it Jury charge has instructions, legal definitions & verdict form Judge gives parties proposed jury charge to give them a chance to make objections can do this even before voir dire Judge makes final decision re: jury charge Charging the Jury Judge reads jury charge verbatim to jury Charge is given to jury to have during deliberations Closing Argument Parties summarize the evidence from their point of view Parties cannot raise new facts or give personal opinion as to credibility Parties show why they are entitled to a result 11

15 Closing Argument Parties ask for a result State: guilty & fine Defense: not guilty State goes 1st and last (rebuttal) Defense goes 2 nd No sur-reply Can ask questions in a bench trial Deliberation Jury (jury trial) or judge (bench trial) weighs evidence credibility of witnesses and Jury (jury trial) or judge (bench trial) can believe some, all or none of a witness testimony Jury (jury trial) or judge (bench trial) is entitled to resolve conflicts in a witness testimony or among several witness testimony Jury (jury trial) or judge (bench trial) follows the law to make a decision not guilty or guilty Verdict Formal announcement of not guilty or guilty Guilty State proved accusation beyond a reasonable doubt *NEW* - Judge must make inquiry whether Δ can pay Not Guilty State did not prove beyond a reasonable doubt Verdict must be unanimous If not unanimous, no verdict = hung jury Mistrial declared Case not over 12

16 Post Trial Motions Time to pay or payment plan OCA forms Community service in lieu of fine Credit for time served Motion for new trial judge made legal error regarding admission of evidence Defendant has right of appeal: on the record in court of record; de novo in nonrecord courts Execution of Judgment Community service (art ) Capias pro fine (art ) arrest warrant for failure to pay the fine as required. Δ cannot bond out of jail if arrested *NEW* - hearing required first Commitment order (art ) commits nonindigent Δ who failed to make a good faith effort to satisfy judgment to jail until satisfied Civil execution (art ) abstract of judgment, writ of execution, public auction Collection agency (art ) private agency; can increase amount owed by 30% Thanks for Coming! Michael Acuña Municipal Judge City of Dallas (214) michael.acuna@dallascityhall.com 13

17 1. Texas Criminal and Traffic Law Manual (TMCEC Judicial Edition) by LexisNexis. 2. The Texas Code of Criminal Procedure - Enter Code of Criminal Procedure then select chapter and article. 3. The Texas Transportation Code - Enter Transportation Code then select chapter and section. 4. The Texas Penal Code - Enter Penal Code then select chapter and section. 5. Canons of Judicial Conduct Texas Rules of Evidence Texas Municipal Courts Education Center - Course Materials & Resources. 1

18 In The Court of Appeals Seventh District of Texas at Amarillo Nos CR CR LONNIE DOUGLAS DAVY, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 66th District Court Hill County, Texas Trial Court Nos. 38,865 and 38,866, Honorable Alan M. Mayfield, Presiding May 5, 2017 OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Through four issues appellant Lonnie Douglas Davy appeals his sentences for possession of methamphetamine and tampering with physical evidence. Three of his issues deal with the State s proof of punishment enhancements; the fourth addresses a statement made by the trial judge. We will overrule each of appellant s issues and affirm the judgments of the trial court.

19 Background By separate indictments appellant was charged with the felony offenses of possession of a controlled substance, methamphetamine, in an amount more than one gram but less than four grams, 1 and tampering with or fabricating physical evidence. 2 Both offenses were alleged to have been committed in August Both indictments contained two enhancement paragraphs alleging appellant was previously convicted of two felonies. 3 The cases were tried together before a jury, and appellant was convicted of both charges. At the punishment phase, appellant plead not true to the two enhancement paragraphs. The truth of the enhancement allegations was therefore submitted to the jury. The charge on punishment in each case informed the jury that the indictment alleged prior to the commission of the offense alleged to have been committed in the Indictment [appellant] was finally convicted of the felony offense of Burglary of Habitation... on the 28th day of February, [and appellant] was finally convicted of the felony offense of Unlawful Possession Firearm by Felon... on the 15th day of January, Appellant did not object to either charge. In both cases the jury 1 TEX. HEALTH & SAFETY CODE ANN (a),(c) (West 2010). 2 TEX. PENAL CODE ANN (a)(1) (West 2016). 3 As applicable to this case, under Penal Code section 12.42(d), if it is shown on the trial of a felony offense that the defendant was previously finally convicted of two felony offenses, and the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction becoming final, on conviction the defendant shall be punished by imprisonment for life, or for any term of not more than 99 years or less than 25 years. TEX. PENAL CODE ANN (d) (West Supp. 2016). 2

20 found the enhancements true. It assessed appellant s punishment at forty years confinement on the possession charge and twenty-five years on the tampering charge. The trial court imposed the sentences accordingly and ordered that the sentences run concurrently. Analysis Second Issue By his second issue, appellant argues the trial court abused its discretion by admitting punishment evidence not produced by the State, in violation of the Michael Morton Act. 4 The specific item of evidence challenged was appellant s penitentiary packet marked as State s Exhibit 20. It contained a custodian s affidavit, photographs of appellant, two prior judgments of conviction, and a fingerprint card. The first judgment, in McLennan County cause number C, was signed on February 28, 2002, and states it revoked a term of probation for the April 14, 2000 offense of burglary of a habitation. The judgment specifies that on February 28, 2002, a sentence of five years confinement in prison and a fine of $500 was imposed. Appellant s punishment, according to the terms of the judgment, commenced on February 28, The judgment also contains the date of appellant s burglary conviction and probation order, that being November 28, The second judgment, in cause number C, also from McLennan County, documents appellant s January 15, 2004 conviction for the July 7, 2003 offense of unlawful possession of a firearm by a felon. The judgment 4 TEX. CODE CRIM. PROC. ANN. art (West Supp. 2016). 3

21 specifies that on January 15, 2004, a sentence of two years confinement in prison was imposed. An investigator testifying for the State took appellant s fingerprints during trial and later testified to his opinion the prints on the card in State s Exhibit 20 and the prints he obtained from appellant were one and the same. The investigator gave the additional opinion, based on his observations of appellant, that the photographs in State s Exhibit 20 were of appellant. Appellant objected to the admission of the penitentiary packet on the ground that it had not been produced in response to his discovery request under Code of Criminal Procedure article The State argued it described the judgments in its notice of extraneous acts it intended to prove at trial. The court overruled appellant s objection and admitted State s Exhibit 20. We review a trial court s ruling on the admission of evidence using an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153 (Tex. Crim. App. 2001). The trial court s evidentiary ruling must be upheld if it is within the zone of reasonable disagreement. Id.; Montgomery v. State, 810 S.W.2d 372, (Tex. Crim. App. 1991) (op. on reh g). The 2013 amendments to Texas Code of Criminal Procedure article identified as the Michael Morton Act made significant changes to procedures for discovery in criminal cases. Gonzales v. State, No CR, 2015 Tex. App. LEXIS 7267 (Tex. App. San Antonio 2015, no pet.) (not designated for publication) (noting Act applies to litigation of offenses that occurred on or after January 1, 2014). 4

22 As the Fourteenth Court of Appeals has observed, the disclosure requirements described in article 39.14(a) are triggered only after receiving a timely request from the defendant. Glover v. State, 496 S.W.3d 812, 815 (Tex. App. Houston [14th Dist.] 2016, pet. refused) (internal quotation marks omitted). 5 We note also that by its 2013 amendments, the Legislature retained in article 39.14(a) the concept that discovery applies to items designated. With regard to appellant s request for discovery in this case, appellant points us only to a motion for continuance appellant filed, which contains a discussion of discovery materials made available by the State. The motion notes that appellant had requested discovery under Texas Code of Criminal Procedure Article But the appellate record does not contain a copy of appellant s discovery request. 6 Without a record showing the items of which appellant sought discovery under article 39.14(a), we are unable to say the trial court abused its discretion by admitting his penitentiary packet as punishment evidence. We overrule appellant s second issue. 5 Appellant does not contend the evidence of his prior convictions, offered by the State for the purpose of enhancing his punishment under Penal Code section 12.42(d), was subject to disclosure without request under article 39.14(h) or article 39.14(k) as information that would tend to negate his guilt or reduce his punishment. See Hart v. State, Nos CR & CR, 2016 Tex. App. LEXIS 9551, at *14 (Tex. App. Houston [14th Dist.] Aug. 30, 2016, no pet.) (mem. op., not designated for publication). 6 The State attached to its brief a copy of a discovery request from appellant, and argues it did not request copies of appellant s prior judgments. We may not, however, consider the document as it is not part of the record. See, e.g., Booth v. State, 499 S.W.2d 129, 135 (Tex. Crim. App. 1973) (explaining appellate court is not authorized to consider documents attached to an appellate brief which are not part of the record). We express no opinion on the State s contention regarding the scope of discovery designated in the request the State has provided. 5

23 First Issue In his first issue, appellant asserts the trial court erred by failing to define the words final and finally, as applied to the February 28, 2002, and January 15, 2004 judgments, in the punishment-phase jury charges. Appellant is concerned that a juror might have misperceived the date on which appellant s prior convictions became final. Appellant did not object to the charge but now contends the error he raises made his trial fundamentally unfair. A party must generally make a proper objection in the trial court to preserve the error for appeal. See TEX. R. APP. P. 33.1(a). However, in criminal cases courts may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved. TEX. R. EVID. 103(e). Fundamental error includes jury charge errors resulting in egregious harm. Baker v. State, No CR, 2015 Tex. App. LEXIS 846, at *4-5 (Tex. App. Fort Worth Jan. 29, 2015, no pet.) (per curiam, mem. op. on reh g, not designated for publication) (citing Saldano v. State, 70 S.W.3d 873, (Tex. Crim. App. 2002)). Reversal on a claim of egregious harm is possible only if the error was fundamental in the sense that it was so egregious and created such harm that the defendant was deprived of a fair and impartial trial. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Almanza v. State, 686 S.W.2d 157, (Tex. Crim. App. 1985) (op. on reh g). We do not undertake the egregious harm analysis unless charge error is first shown. Tear v. State, 74 S.W.3d 555, (Tex. App. Dallas 2002, pet refused). Article of the Code of Criminal Procedure requires that the trial court deliver to the jury a written charge distinctly setting forth the law applicable to the case. 6

24 TEX. CODE CRIM. PROC. ANN. art (West 2007). Trial courts have broad discretion in submitting proper definitions and explanatory phrases to aid the jury. Nava v. State, 379 S.W.3d 396, 420 (Tex. App. Houston [14th Dist.] 2012), aff d, 415 S.W.3d 289 (Tex. Crim. App. 2013). Section 12.42(d) of the Texas Penal Code provides that a defendant s punishment may be enhanced if: [I] it is shown on the trial of a felony offense other than a state jail felony... that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years. TEX. PENAL CODE ANN (d) (emphasis added). Enhancement under this statute thus requires the State to prove a sequence of events: the first conviction became final, an offense leading to a later conviction was committed, the later conviction became final, and the defendant subsequently committed the present offense. Jordan v. State, 256 S.W.3d 286, (Tex. Crim. App. 2008). Establishing a prior conviction requires that the State prove beyond a reasonable doubt the existence of the prior conviction and the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). A defendant may be linked to a prior conviction through independent evidence such as expert testimony connecting the fingerprints from the judgment in the prior conviction with the defendant s known fingerprints. Collins v. State, No CR, 2012 Tex. App. LEXIS 1636, at *18-19 (Tex. App. Dallas Mar. 1, 2012, pet. refused) (not designated for publication) 7

25 (citing Banks v. State, 158 S.W.3d 649, 652 (Tex. App. Houston [14th Dist.] 2005, pet. refused)); Fontenot v. State, 704 S.W.2d 126, 127 (Tex. App. Houston [1st Dist.] 1986 no pet.). Here, appellant challenges the State s proof that he was finally convicted of two prior felonies and the second prior felony conviction was for an offense that occurred after the first prior conviction became final. See TEX. PENAL CODE ANN (d). Absent a notice of appeal, a conviction is final on the date sentence is imposed. Woolsey v. State, 166 Tex. Crim. 447, 314 S.W.2d 298, 300 (1958); cf. Jones v. State, 77 S.W.3d 819, 824 (Tex. Crim. App. 2002) (holding in case of driver s license suspension for prior drug-offense conviction a conviction which appears to be regular, valid and final on its face, does not lack finality merely because the defendant still has an opportunity to appeal that conviction ). Prima facie proof of a prior conviction is made by introduction of the prior judgment and sentence. Johnson v. State, 583 S.W.2d 399, 403 (Tex. Crim. App. 1979). Once the State makes prima facie proof of an enhancement conviction, finality of the conviction is presumed if the record is silent regarding finality. Fletcher v. State, 214 S.W.3d 5, 8 (Tex. Crim. App. 2007). The defendant then assumes the burden of proving the conviction was not final. Id.; Ashley v. State, 527 S.W.2d 302, 305 (Tex. Crim. App. 1975) ( when a conviction appears to be final on its face, as here, the burden of showing the same to be not final is on the defendant ); see Jones, 77 S.W.3d at (internal footnoted citations omitted) ( Thus, when the State offers into evidence a certified copy of a judgment and sentence, it has made a prima facie case that the conviction reflected within that judgment and sentence is a final conviction worthy of respect. That evidence is legally and factually 8

26 sufficient to prove that a prior conviction is a final conviction absent any evidence to the contrary. If the judgment of conviction has been set aside, vacated or appealed, the defendant must offer some evidence to support that fact ). But if the record evidence establishes the prior conviction was appealed, the conviction becomes final when the appellate court issues its mandate affirming the conviction. Beal v. State, 91 S.W.3d 794, 796 (Tex. Crim. App. 2002). In such cases, the State must demonstrate when the conviction became final. Ex parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App. 2005) (Keller, P.J., concurring) (citing Beal, 91 S.W.3d at 797) ( if the State s proof of the prior conviction shows on its face that the conviction was appealed, the State must put on evidence that mandate has issued ). Here there is no evidence that either prior conviction was appealed or was otherwise not final. It is thus presumed the first prior judgment was final on February 28, 2002, and the second prior judgment was final on January 15, The offense for which appellant was convicted in the second prior judgment occurred on July 7, Appellant made no attempt to rebut the presumption of finality. There was therefore no fact concerning finality for the jury to find. The trial court did not err in failing to instruct the jury as appellant now argues. See Buchanan v. State, 453 S.W.2d 479, 484 (Tex. Crim. App. 1970) (refusal of requested charge is not error where evidence raises no issue of fact to require its submission); Campbell v. State, 633 S.W.2d 592, 594 (Tex. App. Amarillo 1982, pet. refused) (citing Buchanan). Because we find no abuse of discretion, an egregious harm analysis is not applicable. Appellant s first issue is overruled. 9

27 Third Issue In his third issue, appellant asserts the evidence for enhancement was insufficient. He argues the February 28, 2002 judgment revoking probation provides no evidence of a final conviction on that date. We apply the Jackson v. Virginia standard to determine the sufficiency of evidence proving enhancement of punishment. Andrus v. State, Nos CR, CR, 2010 Tex. App. LEXIS 1665, at *19 (Tex. App. Dallas Mar. 10, 2010, no pet.) (not designated for publication) (citing Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Applying that standard, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential proof requirements beyond a reasonable doubt. See Jackson, 443 U.S. at ; Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The principles announced in Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), apply to affirmative findings necessary to sustain imposition of an enhanced punishment. Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000). Accordingly, we measure the sufficiency of the evidence to support the enhancement by the elements of the hypothetically correct jury charge for the enhancement, as it is defined by statute. Id. Here, the elements of proof required for enhancement under Penal Code section 12.42(d) are the sequential events set out in the statute. Jordan, 256 S.W.3d at

28 The judgment contained in State s Exhibit 20 in proof of the first enhancement allegation, that in cause no C, was signed February 28, It is entitled, Judgment Revoking Probation. It states appellant s offense of burglary of a habitation was committed April 14, It states the date of judgment, and the date of probation order as November 28, It states the original punishment assessed as 7 years in the Texas Department of Criminal Justice, Institutional Division Probated for 5 years. It states the date sentence imposed, as February 28, 2002; the punishment and place of confinement as 5 years in the Texas Department of Criminal Justice, Institutional Division and a fine of $ ; and the date to commence as February 28, Among its attributes, the hypothetically correct jury charge is one that accurately sets out the law. Malik, 953 S.W.2d at 240. A hypothetically correct jury charge addressing the first enhancement allegation would recognize Texas law on the finality, for purposes of enhancement under section 12.42, of felony convictions for which punishment is suspended and probation is granted. In such a case, the conviction is not final under section until the probation is revoked. A probated sentence is not a final conviction for enhancement purposes under unless it is revoked. Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001); see also Donaldson v. State, 476 S.W.3d 433, 438 (Tex. Crim. App. 2015) (under Texas law, probated sentence not final for purposes of enhancement until probation revoked); Franklin v. State, 219 S.W.3d 92, 96 (Tex. App. Houston [1st Dist.] 2006, no pet.) (same). 7 7 See State Bar of Texas, TEXAS CRIMINAL PATTERN JURY CHARGES: GENERAL, EVIDENTIARY & ANCILLARY INSTRUCTIONS CPJC 12:2 (punishment instructions) (2015). 11

29 A rational juror, accurately instructed on the law regarding finality under section 12.42(d) of probated sentences, would readily conclude from the information reflected in the judgment in cause C that appellant s conviction was final on February 28, 2002, the date appellant s probation was revoked and he was sentenced to a term of confinement. The body of the February 28 judgment contains the statement it appears that on November 28, [appellant] was finally convicted of a felony.... A juror confused on the law of finality might have believed appellant s conviction actually was final on that date, but that erroneous belief would not affect even that juror s correct verdict that the first enhancement conviction became final before appellant committed the second offense on July 7, The evidence appellant s burglary conviction was final on February 28, 2002, and the evidence it became final before he committed the second enhancement offense, was sufficient. In support of his third issue, appellant also points out what he sees as a variance between the cause number stated in the February 28, 2002 first enhancement judgment, that being cause number C, and the cause number referred to in the enhancement allegation in the indictment in his current prosecution, stated as cause number C. The variance is not material. The indictment correctly alleged the convicting court, county of conviction, offense and date of conviction. Appellant did not demonstrate in the trial court and he does not argue here that the incomplete cause number misled him to his prejudice. See Byrd v. State, 336 S.W.3d 242, (Tex. Crim. App. 2011) (materiality of variances); Cole v. State, 611 S.W.2d 79, 80 (Tex. Crim. App. [Panel Op.] 1981) (comparable variance in enhancement allegation not 12

30 fatal). Nor would the variance be reflected in the hypothetically correct jury charge by which we determine the sufficiency of the evidence. Byrd, 336 S.W.3d at 248. Appellant s third issue is overruled. Fourth Issue In his fourth issue appellant asserts the trial court reversibly erred by commenting on his Fifth Amendment right not to testify in front of the jury. During the State s punishment argument appellant spoke out in open court, interrupting the prosecutor 8 and prompting the trial court to state, Sir, you can t speak. This is not your time. You chose not to testify. You will remain quiet. You may proceed. Appellant s counsel made no objection. Ordinarily, a complaint regarding an improper judicial comment must be preserved at trial. TEX. R. APP. P. 33.1(a); Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013); Jasper v. State, 61 S.W.3d 413, (Tex. Crim. App. 2001). Even claims of constitutional error may be waived if not properly brought to the attention of the trial court. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (waiver of objection under Confrontation Clause). An exception to the general rule applies if a trial court s comment amounts to fundamental error. TEX. R. EVID. 103(e); Unkart, 400 S.W.3d at 99. The comments of a trial court may amount to fundamental error if they bear on the presumption of innocence or vitiate the impartiality of the jury. Jasper, 61 S.W.3d at 421; Powell v. State, 252 S.W.3d 742, (Tex. App. Houston [14th Dist.] 2008, no pet.). 8 Apparently responding to the prosecutor s mention of a burglary, appellant interrupted, stating, And I got shot in the face. I got shot in the face by a gun. 13

31 Here the court s comment did not bear on the presumption of innocence since it occurred at the punishment phase of trial. The jury had already found appellant guilty. As for its potential to vitiate the jury s impartiality, we consider the court s statement in its context, as the court was restoring order after appellant s interruption of the State s argument. See Oulare v. State, 76 S.W.3d 231, 232 (Tex. App. Amarillo 2002, no pet.) (judge s comment viewed within its context). The jury would expect the court to admonish appellant to remain quiet. In that context, we cannot see the court s reference to appellant s exercise of his right not to testify as rising to the level of fundamental error. Moreover, the context includes also the court s punishment charge to the jury, which included this instruction: Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this phase, the defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant. An appellate court generally presumes the jury followed instructions. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). We are not shown that the jury failed to heed the instruction. Id. (noting a defendant may rebut the presumption by pointing to evidence the jury failed to follow the instruction). Because the record does not show the trial court committed fundamental error it was necessary for appellant to preserve the complaint he now urges. Because he 14

32 chose not to raise the complaint in the trial court, his fourth issue was not preserved for our review. TEX. R. APP. P. 33.1(a). Appellant s fourth issue is overruled. Conclusion court. Having overruled each of appellant s issues, we affirm the judgments of the trial James T. Campbell Justice Publish. 15

33 Page S.W.3d 812 (Tex.App.-Houston [14th Dist.] 2016) LAWRENCE GLOVER, III, Appellant v. THE STATE OF TEXAS, Appellee No CR Court of Appeals of Texas, Fourteenth District, Houston June 21, 2016 On Appeal from the 263rd District Court, Harris County, Texas. Trial Court Cause No For Appellant: Jani J. Maselli Wood, HOUSTON, TX. For State: Jessica Alane Caird, HOUSTON, TX. Panel consists of Chief Justice Frost and Justices Boyce and Wise. OPINION Page 813 Ken Wise, Justice Appellant Lawrence Glover, III, appeals his conviction for evading arrest or detention with a motor vehicle, asserting in a single issue that the State violated his due process rights by failing to comply with Page 814 the Michael Morton Act.[1] We affirm. Factual Background While patrolling southwest Houston on the evening of March 31, 2014, Officers Duncan and Valdez observed appellant commit a traffic violation by failing to maintain a single lane of traffic. The officers waited briefly to see if appellant would correct his violation, but when he did not, they turned on their overhead lights. Appellant continued driving, so the officers " yelped" the car's sirens. At that point, Valdez testified that appellant looked in the rearview mirror, made eye contact with the officers, and turned around in his seat. However, appellant still did not pull over. Instead, appellant continued driving, so the officers turned on the sirens and asked over the speaker system for appellant to " please pull over." Appellant kept driving for another half mile, cutting through a service station at approximately 35 or 40 miles per hour. Appellant did not stop at the station, but continued onto the I-610 service road. At that point, the officers radioed for assistance. At the next intersection, appellant made a last-minute turn from a non-designated lane. When he reached a second gas station, appellant pulled over. The officers estimated that the distance between the location where they first turned on the patrol car lights and where appellant ultimately stopped was about one mile. At the gas station, the officers asked appellant to exit the vehicle. When he did so, he " was aggressive and confrontational and abusive," cursing at the officers and raising his fists at them. Officer Duncan testified that appellant repeatedly reached for his own waistband. After the officers arrested appellant, Officer Valdez attempted to search appellant's person, but appellant lunged at him and attempted to knock him down. With the help of other responding officers, Valdez was ultimately able to place appellant in the patrol car without further incident. After hearing testimony from appellant and several officers on the scene, the jury found appellant guilty and sentenced him to 30 years in prison. Issues and Analysis In his sole issue, appellant argues that the State violated the Michael Morton Act and appellant's due process rights. Specifically, appellant claims that because the officers testified to information that was not included in the offense report and was not disclosed to appellant, the State denied appellant his due process right to present a defense. Appellant argues that the Act " requires disclosure of officer reports and statements as well as a record of the compliance." The Act is codified in article of the Texas Code of Criminal Procedure, which states in relevant part: (a) Subject to the restrictions provided by Section , Family Code, and Article of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded Page 815

34 statements of the defendant or a witness, including witness statements of law enforcement officers (j) Before accepting a plea of guilty or nolo contendre, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article. Tex. Code Crim. Proc Appellant claims that the State violated his due process rights by failing to comply with the Act's disclosure requirements. He contends that the officers testified to the following " extremely incriminating and negative facts" that allegedly were not included in the offense report: 1. Appellant looked back at the officers through the rearview mirror; 2. Appellant made eye contact with the officers; 3. Appellant slowed down and then sped up during the offense; 4. Appellant was switching lanes; and 5. Appellant stood up and threw himself to the ground. Appellant's briefing is unclear as to whether his complaint stems from the State's alleged failure to disclose these additional facts before trial, the trial court's admission of these facts in the form of officer testimony, or both. We address both contentions. A. The State's Alleged Failure to Disclose The gravamen of appellant's complaint is that the State failed to comply with the Act's disclosure requirements. However, it is unclear whether appellant contends that the State violated the Act by failing to disclose the additional information from the officers pursuant to article 39.14(a), or by failing to acknowledge in writing or on the record what information was disclosed to appellant pursuant to article 39.14(j). See Tex. Code Crim. Proc Appellant merely asserts that " [t]here is nothing in the record as required by the Michael Morton Act." Neither contention is valid. The Act's disclosure requirements are triggered only " after receiving a timely request from the defendant." See Tex. Code Crim. Proc. art (a). By its express language, the Act requires a defendant to invoke his right to discovery by request to avail himself of the Act's benefits. See id. Nothing in the record indicates that appellant ever made such a request; therefore, we cannot conclude that the State violated article To the extent that appellant contends that the State had an affirmative duty to produce the officers' information, regardless of whether he requested it, we note that the Act only imposes such an obligation on the State with regard to exculpatory information. See Tex. Code Crim. Proc. art (h) (" Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment or mitigating document, item or information... that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged). Appellant characterizes the information about which he complains as " extremely incriminating," not exculpatory. Because the information was not exculpatory, the State had no duty to produce it absent a proper request. Page 816 B. The Trial Court's Admission of the Officers' Testimony To the extent appellant argues that the trial court erred in admitting officer testimony regarding facts that do not appear in the offense report, we conclude that appellant failed to preserve error in the trial court. Appellant admits that " there was no objection by defense counsel" that the officers' testimony was not included in the offense report. Generally, to preserve error for appellate review, a defendant must make a timely and specific objection. See Tex. R. App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991). Almost every right, both constitutional and statutory, may be forfeited by the failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986); see alsowright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (explaining that even constitutional error may be waived); Alexander v. State, 137 S.W.3d 127, (Tex.App.--Houston [1st Dist.] 2004, pet. ref'd) (holding that failure to object to trial court's alleged violations of federal and state due process rights waives appellate review of those claims). Appellant argues that an objection was not necessary because " this is the type of systemic error which can be considered without objection." However, appellant cites no authority to support this contention. Systemic rights are those rights " widely considered so fundamental to the proper functioning of our adjudicatory process" that they " are not extinguished by inaction alone." Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993). By contrast, the right to discovery of offense reports and witness statements is statutory in nature. See Tex. Code Crim. Proc. art (a); Dix & Schmolesky, 42 Tex. Prac. Series 27:89.20 (noting the State's new obligation under the Act to produce and permit the inspection of certain items following a timely request from the defendant, an obligation

35 that did not exist before the 2013 amendments). Just as the legislature, by passing the Act, chose to create the right to discovery of certain items upon the defendant's proper request, the legislature could choose to abrogate that right. SeeSubaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002) (internal quotation omitted) (noting the " fundamental proposition" that " no one has a vested right in the continuance of present laws" ). Appellant fails to explain how or why statutory rights under the Act can be classified as systemic or fundamental. We hold that even if appellant had complied with the requirements of article 39.14, he forfeited his complaint by failing to bring it to the attention of the trial court. SeeHull v. State, 67 S.W.3d 215, 217 (Tex.Crim.App. 2002) (holding defendant waived due process complaint by failing to present it in the trial court and instead raising it for first time on appeal). We overrule appellant's sole issue. Conclusion We affirm the judgment of the trial court Notes: [1] See Act of May 16, 2013, 83rd Leg., R.S., ch. 49, 2, sec , 2013 Tex. Sess. Law Serv. 106 (West) (codified at Tex. Code Crim. Proc. art )