Michael Ervin Tucker v. The State of Texas--Appeal from County Court at Law No 5 of Bexar County

99-00304 Tucker v State of Texas.wpd No. 04-99-00304-CR
Michael Ervin TUCKER,
Appellant
v.
The STATE of Texas,
Appellee
From County Court at Law Number Five, Bexar County, Texas
Trial Court No. 703219
Honorable Joe E. Briscoe, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: October 25, 2000

AFFIRMED

Michael Tucker appeals his conviction of and sentence for assault causing bodily injury. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 22, 1998, a dispute arose between Michael Tucker and his twenty-three year old stepdaughter, Sheila Reed. Reed was visiting her mother, Laurelia Harris, who was married to and lived with Tucker. During the visit, Tucker confronted Reed, asking her, "when are you going to pay me my money?" Tucker was referring to an inexpensive computer desk that Reed had accidentally broken some time earlier. When Reed said that she did not have the money, Tucker instructed her to leave the apartment immediately against his wife's objections. Reed refused to leave and challenged Tucker by saying, "make me leave." In response, Tucker grabbed Reed's arm and attempted to forcibly eject her from the apartment. Reed resisted and a fight broke out. Tucker threw Reed to the ground, hit her in the face, and kicked her in the stomach. Reed eventually broke free from Tucker and ran to a neighbor's apartment where she called 911. Tucker was later charged with assault causing bodily injury. At trial, Tucker was offered legal counsel, but instead chose to proceed pro se assisted only by a "friend of the Court." A jury found Tucker guilty of the misdemeanor offense of assault causing bodily injury and the trial court assessed punishment at one year in jail probated over two years and a $500 fine.

Factual Insufficiency

In his first point of error, Tucker argues the evidence introduced is factually insufficient to support the jury's verdict. We disagree.Standard of Review

In reviewing for factual sufficiency, we consider all of the evidence introduced at trial. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The evidence is not viewed in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). A guilty verdict may only be set aside when it is so clearly wrong and unjust that it undermines confidence in the jury's determination. Johnson, 23 S.W.3d at 11.

Because the jury is the exclusive judge of witness credibility and weight given to witness testimony, it is the jury's prerogative to reject all or part of the evidence and draw reasonable inferences from the evidence presented. Clewis, 922 S.W.2d at 135. It is not proper for a reviewing court to reweigh the evidence or to substitute its judgment because it concludes another result is more reasonable. Id. Instead, deference must given to the jury verdict unless it is manifestly unjust and against the great weight of evidence. Id.; Johnson, 23 S.W.3d at 11-12.

Discussion

Tucker argues the great weight of the evidence establishes he acted under legal justification. For support, Tucker points to his testimony that he had no intention of hurting Reed, but merely intended to remove her from his home, which he believed was his legal right. He also points to the factual discrepancies between the address Reed gave to the police and her true address. Because Reed had only lived with Tucker and her mother intermittently while she was attending college, Tucker contends he had a greater right of possession in the apartment than did Reed. Tucker concedes that the lease for the apartment listed both his children and her children as occupants, but he argues the lease only permitted the children, including Reed, to visit for brief periods of time. For this reason, Tucker claims he was justified in exercising his right to possession when he asked Reed to leave the apartment and that her refusal to leave was criminal trespass. Tucker further argues that Reed's resistance to his forcible attempt to remove her from the apartment amounted to assault and justified his acting in self-defense.

Finally, Tucker argues that evidence of Reed's motive supports his claim of factual insufficiency. This evidence includes Tucker's testimony regarding a $20,000 judgment he received in 1997, his denial that he had assaulted other family members as suggested by his ex-wife, his allegations that his wife obtained an illegal divorce, evidence that his wife refused to post his bond, and evidence his wife sought to terminate custody of his son to prevent the child from testifying at trial.

Reed's motive and testimonial discrepancies were within the jury's province to resolve. Here, the jury heard all of the evidence and apparently found Reed and her mother more believable than Tucker. The jury could also have reasonably determined that Reed's true address was irrelevant, because both she and her mother were listed as tenants on the family's apartment and because Reed had her own key. Alternatively, the jury could have reasonably concluded that Reed's presence in the apartment was justified since Reed's mother consented to her being there and then sought to intervene on Reed's behalf when Tucker first demanded Reed leave. The jury could have also concluded that Tucker's use of force in removing Reed from the apartment was unreasonable or unnecessary. See Tex. Pen. Code Ann. 9.41 (Vernon 1996). Finally, while the jury may or may not have believed that Tucker acted out of provocation in response to Reed's remark "make me leave," it apparently did not accept that he acted justifiably in self-defense when he, being considerably larger and stronger, punched Reed in the face with his fist and kicked her in the stomach. See Tex. Pen. Code Ann. 9.31 (Vernon Supp. 1999).We thus hold the jury verdict is not so against the great weight and preponderance of the evidence as to be clearly unjust and wrong. We therefore overrule Tucker's first point of error.

Right to Cross Examine Witnesses

In his second point of error, Tucker contends the trial court impermissibly restricted his right to cross examine Reed and her mother. We hold the error, if any, was harmless.

Discussion

When the trial court improperly prohibits or limits a defendant's right to cross-examine State witnesses, we conduct a harm analysis using the Van Arsdall standard. See Delaware v. Van Arsdall, 475 U.S. 673, 683-84 (1986); Love v. State, 861 S.W.2d 899, 904 (Tex. Crim. App. 1993); Tex. R. App. P. 44.2(a). This analysis first requires us to focus on the witness' testimony and assume that the "damaging potential of the cross-examination [was] fully realized." Love, 861 S.W.2d at 904. We then consider (1) whether the witnesses' testimony was an important part of the prosecution's case; (2) the cumulative nature of the testimony; (3) the existence of material evidence corroborating or contradicting the witness' testimony; (4) the extent of cross-examination otherwise allowed; and (5) the overall strength of the prosecution's case. Id. (citing Van Arsdall, 475 U.S. at 683). Finally, we determine whether the error in limiting the cross-examination was harmless beyond a reasonable doubt. Id.; Tex. R. App. P. 44.2(a).

In the present case, Laurelia Harris, and the complainant, Sheila Reed, were the only State witnesses who actually witnessed the assault. Tucker sought to cross-examine these witnesses because he believed they were biased and had motive to lie. To attack their credibility, Tucker attempted to question these witnesses about Tucker's recent divorce from Harris, the distribution of the couple's community property, custody issues involving Tucker's son and whether Harris returned the child to his natural mother while Tucker was incarcerated to prevent him from testifying at trial, and an insurance settlement that Reed received shortly before the offense occurred. The trial court disallowed the evidence on the grounds that it was not relevant to the offense of assault.

However, the erroneous exclusion of this testimony was harmless, because the trial court permitted Tucker to question Reed and Harris on these same issues during the course of the trial. See Carmona v. State, 698 S.W.2d 100, 104 (Tex. Crim. App. 1985) (no harm results when a "defendant has otherwise been afforded a thorough and effective cross-examination and where . . . the bias and prejudice of the witness is so patently obvious."). We therefore overrule Tucker's second point of error.Right to Compulsory Process

In his third point of error, Tucker contends the trial court violated his Sixth Amendment right to compulsory process by quashing one of his subpoenas, in which he sought to compel the testimony of San Antonio Police Chief, Al Phillipus. We disagree.Standard of review

We use an abuse of discretion standard in reviewing a trial court's decision to quash a subpoena. See Drew v. State, 743 S.W.2d 207, 225 n.11 (Tex. Crim. App. 1987) (citing United States v. Nixon, 418 U.S. 683 (1974) and Ross v. Estelle, 694 F.2d 1008 (5th Cir. 1983)).

Discusssion

Compulsory process is the Sixth Amendment right of a criminal defendant to present his version of the facts to the jury. Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim. App. 1998). However, the Sixth Amendment does not require or guarantee that any and all witnesses sought will attend and testify in a criminal proceeding. Id. It only guarantees the compulsory process for obtaining witnesses with evidence "material and favorable" to the defense. Id. It is the defendant's burden to show the trial court, "by sworn evidence or agreed facts, that the witness' testimony would be both material and favorable to the defense." Id. at 528. "A defendant who has not had an opportunity to interview a witness may make the necessary showing by establishing the matters to which the witness might testify and the relevance and importance of those matters to the success of the defense." Id.

Tucker established on the record that he subpoenaed the Chief of Police to testify whether it was a police officer's job to decide if a property owner had used excessive force in ejecting a trespasser. Tucker explained that he intended to use the subpoenaed witness' testimony to rebut the following testimony of a police officer offered by the State:

If you had gone to that address and learned the facts of what you've learned, would you have effected an arrest for criminal trespass? No, ma'am. Why not? It's my understanding that if you ask someone to leave [your property], you're allowed to use the force reasonable to make them leave. In my opinion, based on what the complainant told me, hitting her in the head and kicking her in the stomach is not reasonable force to make somebody leave.

The trial court quashed the subpoena, ruling that witness testimony was not the proper source for establishing the elements of criminal trespass. The court also noted that the testimony sought was unnecessarily cumulative in that Tucker had already presented a great deal of evidence raising the issue of criminal trespass and related defenses.

Nothing in the record indicates Chief Phillipus had personal knowledge of facts relevant to the issue of whether Tucker used reasonable force in removing Reed from the apartment. Thus, the trial court did not abuse its discretion in quashing the subpoena. Moreover, to complain on appeal about the exclusion of evidence, the record must show that the proponent of the evidence made an offer of proof or bill of exception to establish what the excluded testimony would have been or shown. Tex. R. App. P. 33.2; Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 866 (1985). Without this, nothing is preserved for review. Here, Tucker failed to show what Chief Phillipus would testify to. Therefore, the error was not preserved for review. We overrule Tucker's third point error.

Due Process and Due Course of Law

Tucker complains in his fourth point of error that the trial court violated his right to due process and due course of law by repeatedly denying his attempts to present evidence relevant to his defense.

Discussion

To preserve error for appeal, a specific and timely objection must have been made at trial. See Holland v. State, 802 S.W.2d 696, 699 (Tex. Crim. App. 1991). A party on appeal may only complain about those issues specifically raised in the trial court. Webber v. State, 21 S.W.3d 726, 729-30 (Tex. App.--Austin 2000, pet. filed) (citing Mooney v. State, 817 S.W.2d 693, 703 (Tex. Crim. App. 1991)). As a general rule, appellate courts will not review alleged errors that were not presented at trial, and even constitutional errors are subject to waiver. Id. at 730. Here, Tucker failed to object on the basis he now complains of on appeal. Thus error, if any, was not preserved. See Holland, 802 S.W.2d at 699-700. Point of error number four is overruled.

Right to Self-Representation

In his fifth point of error, Tucker claims he was denied his constitutional right to assistance of counsel at trial and was forced to proceed pro se. We disagree.

Discussion

The Sixth Amendment guarantees a criminal defendant in a state trial the right of self-representation. Faretta v. State, 422 U.S. 806 (1975). Before permitting a defendant to proceed without counsel, the trial court should warn about the "dangers and disadvantages" of self-representation so that a "knowing, intelligent and voluntary waiver" of the right is made. Johnson v. State, 614 S.W.2d 116, 118 (Tex. Crim. App. 1981). "While the choice must be knowingly and intelligently made, it need not be wise." Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989). Whether a defendant is "competent to represent himself is immaterial; the appropriate question is whether he is competent to choose the endeavor." Id.

Tucker argues his decision to proceed without counsel was made "under the gun" of the trial court and, thus, his waiver of counsel was not voluntary. The record, however, does not support this claim. During the six months before this case went to trial, Tucker filed three motions to proceed pro se, the last of which was filed only one week before trial. Without an attorney, Tucker filed at least twenty-three miscellaneous hand written motions in his own defense. This suggests Tucker wanted to be in charge of his defense from the outset. This conclusion is also supported by the fact he dismissed his court appointed attorney. The fact he requested new counsel be appointed is unpersuasive. "A criminal defendant is not entitled to appointed counsel of choice. Under the State and Federal Constitutions he is entitled to effective assistance of counsel, however this constitutional protection cannot be manipulated in such a manner so as to throw the trial process into disarray." Dunn, 819 S.W.2d at 520. Finally, the record shows Tucker proceeded without counsel because he insisted that he be tried that day and, more importantly, because he said he would only accept appointed counsel if one could be appointed that day. Thus, if Tucker was "under the gun" to proceed without counsel, it was the result of his own doing and not the court's.

The trial court adequately warned Tucker about the dangers and disadvantages of self-representation, cautioning him that he would be "on his own" and held to the same rules of procedure even though he lacked formal legal training. It was only after admonishing Tucker and appointing a "friend of the Court" to assist him the trial took place. Although Tucker's choice to represent himself may have been a poor one because he was "ill-equipped" for the undertaking, the choice was his to make, and it would have been error for the trial court to force an attorney on Tucker under the circumstances. See Faretta v. State, 422 U.S. at 835-36. Because we find Tucker was not denied his constitutional right to assistance of counsel, we overrule point of error number five.

The judgment of the trial court is affirmed.

Sarah B. Duncan, Justice

Do not publish