Kurtis Eugene Rupert v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00182-CR
Kurtis Eugene RUPERT,
Appellant
v.
STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-5857
Honorable Sharon MacRae, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 30, 2003

AFFIRMED

Kurtis Eugene Rupert appeals the judgment convicting him of driving while intoxicated and sentencing him to eight years imprisonment. We affirm.

1. At the pretrial hearing, the trial court asked Rupert, who was appearing pro se, (1) whether he wanted the court or the jury to assess punishment. Rupert responded that he was not ready for trial. The trial court then stated that the jury would assess punishment. Rupert did not thereafter object to the trial court's action or otherwise indicate he wanted the trial court to assess punishment. On appeal, however, he argues the trial court erred in permitting the jury to assess punishment in violation of section 2(b) of article 37.07 of the Texas Code of Criminal Procedure. We agree that the trial court should have assessed punishment. See Tex. Code Crim. Proc. art. 37.07, 2(b) (Vernon Supp. 2002). However, Rupert waived the error by failing to object. See Dickson v. State, 492 S.W.2d 267, 270-71 (Tex. Crim. App. 1973).

2. Rupert next alleges the trial court abused its discretion by failing to hold a hearing on his "Motion to Dismiss-Insufficient Evidence." We again disagree. Rupert did not ask for a hearing on this motion before or during trial and thus waived the error. See Calloway v. State, 743 S.W.2d 645, 649-50 (Tex. Crim. App. 1988).

3. Finally, Rupert argues the trial court erred in overruling his objection to the inclusion of the following instruction in the jury charge regarding de facto officers:

You are instructed that under our law that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

You are further instructed that Article XVI, section 1 of the Texas Constitution requires elected and appointed officers to take an oath of office. Before such oath is taken, section 1 requires elected and appointed officers to sign and file a statement with the secretary of state before taking the oath or [sic] office.

Therefore, if you find the officer is a de facto officer under Texas law, you are instructed that the duties he performs are valid.

A de facto officer is one who acts under color of a known and valid appointment, but has failed to conform to some precedent requirement, such as taking the oath or filing the statement as required by section 1.

However, if you find that the officer is not a de facto officer then any evidence obtained as a result of the arrest must be disregarded.

We again disagree.

At trial Rupert argued the testimony of the arresting officer and of the officer who administered the sobriety tests should be excluded under article 38.23 of the Texas Code of Criminal Procedure, because it was obtained in violation of article XVI, section 1 of the Texas Constitution, which requires all appointed officers to sign and file an anti-bribery statement before taking the oath of office. See Tex. Const. art. XVI, 1. In response, the State did not dispute Rupert's evidence that the officers had not filed anti-bribery statements but argued that there was no causal connection between the failure of the officers to file anti-bribery statements and their obtaining evidence of Rupert's intoxication. See Gonzales v. State, 67 S.W.3d 910, 913 (Tex. Crim. App. 2002). Although we believe the instruction is a correct statement of Texas law, (2) we need not reach the issue in this case. Even if the trial court erred in including this instruction in the jury charge, the error, if any, was harmless, because there is no evidence of a causal connection between the arresting officer not having signed the anti-bribery statement and his testimony concerning Rupert's intoxication. Absent evidence of a causal connection, the arresting officer's testimony was not excludable under article 38.23(a). See Roquemore v. State, 60 S.W.3d 862, 870 (Tex. Crim. App. 2001); Chavez v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000) (the "plain language" of article 38.23(a) does not require exclusion of evidence when no "ordinary person" would consider the evidence to have been obtained in violation of the law); State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) (ordinary meaning of "obtained" does not extend to remote causal relationships).

The judgment is affirmed.

Sarah B. Duncan, Justice

Do not publish

1. Before permitting Rupert to appear pro se, the trial judge questioned him extensively regarding his educational background and legal experience and then admonished him as follows:

The Court: Okay. Mr. Rupert, you have a right to represent yourself, you know, if that is what you insist on doing. But it is not a good idea. And it is not a good idea because first of all, although you may have done extensive reading in the last seven months, most lawyers spend three years in law school, four years in college prior to that and they take an examination before they are licensed to practice to make sure that they know what they are doing. When they come to a felony court, they have generally tried any number of cases. I take it you've never tried a case; have you?

The Defendant: No, ma'am.

The Court: And the Court is going to hold you to the same standards that I would hold a lawyer.

The Defendant: I understand.

The Court: If your objection is not right, it's going to be overruled.

The Defendant: Yes, ma'am.

The Court: If your motions are not in order, they're going to be overruled. And I am not going to help you out.

The Defendant: Yes, ma'am.

The Court: And no one else is going to help you out.

The Defendant: Yes, ma'am.

The Court: And this is a bad idea, Mr. Rupert. I really wish you would not do this.

....

The Court: All right. Mr. Rupert, before we get to that, obviously you intend to go ahead and do this regardless of what I say.

The Defendant: Yes, ma'am. I'm innocent and I have to prove this in court.

2. See Williams v. State, 588 S.W.2d 593, 595 (Tex. Crim. App. [Panel Op.] 1979) (citing Weatherford v. State, 31 Tex. Crim. 530, 21 S.W. 251 (Tex. Crim. App. 1893)); Tex. Att'y Gen. No. DM-381 (1996).