Richard Allen Mosby v. The State of Texas--Appeal from 351st District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00014-CR

______________________________

RICHARD ALLEN MOSBY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st Judicial District Court

Harris County, Texas

Trial Court No. 884754

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Richard Allen Mosby appeals his conviction for writing an undercover police officer a prescription for dihydrocodeinone // when there was no valid medical purpose for that prescription. He presents sixteen points of error. We overrule each and affirm the trial court's judgment.

Background

Mosby was a medical doctor working as a radiologist in Houston, Texas. After an undercover investigation by Houston police in coordination with other state officials, officers arrested Mosby for writing a prescription for dihydrocodeinone without a valid medical purpose. That offense is a third-degree felony. See Tex. Health & Safety Code Ann. 481.129(c)(1) (Vernon 2003). Mosby voluntarily waived his right to counsel and agreed to proceed pro se during the case. Ultimately, Mosby pled guilty and, pursuant to a negotiated plea agreement, was placed on five years' adjudicated community supervision.

Improper Presentment of Indictment

In his first point of error, Mosby contends the indictment was signed before presentment of evidence on the charge to the grand jury. A notation on the indictment indicates the instrument was prepared September 12, 2001. The indictment does not, however, show whether it was formally approved and signed by the grand jury foreman on the date it was prepared (September 12, 2001) or on the following day (September 13, 2001), when it was filed with the district clerk's office. Regardless, there is nothing in the record before us either to show when the grand jury's term began or to otherwise suggest the indictment was approved without the State first presenting any evidence to the grand jury to substantiate the return of the indictment. Mosby's first point of error is overruled.

Burden of Proof

In his second point of error, Mosby contends the burden of proof was not properly placed on the State to prove Mosby's guilt beyond a reasonable doubt. All persons charged with a criminal offense are presumed innocent until proven guilty beyond a reasonable doubt. Tex. Pen. Code Ann. 2.01 (Vernon 2003). In this case, Mosby pled guilty and judicially confessed to committing the offense as alleged in the indictment. Mosby's plea was accepted by the trial court, and his judicial confession was admitted into evidence without objection. A judicial confession, standing alone, is sufficient to satisfy Article 1.15 of the Texas Constitution and sustain a conviction based on the defendant's guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979). In this case, the trial court did not shift to Mosby the burden of proof to prove his innocence. Instead, the trial court found Mosby's judicial confession, made in conjunction with his plea of guilty, satisfied the State's burden of proof. We overrule Mosby's second point of error.

Involuntary Guilty Plea

In his fourth point of error, Mosby contends his guilty plea was involuntary because it was the result of coercion or fear. A defendant may not appeal the voluntariness of a plea when the conviction is the result of a negotiated plea agreement. Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001); Woods v. State, No. 06-00-00210-CR, 2003 WL 21960371, at *1 (Tex. App. Texarkana Aug. 19, 2003, no pet.) (op. on remand). Moreover, before accepting Mosby's plea, Mosby told the trial court no one had forced, threatened, or coerced him into pleading guilty. The record demonstrates that Mosby was aware of the range of punishment and that he was both competent and sane at the time of his guilty plea. In short, the law does not permit consideration of Mosby's point of error, nor does the record factually support his position on this issue. We overrule Mosby's fourth point of error.

Denial of Impartial Jury

In his fifth point of error, Mosby contends he was denied his right to an impartial jury because the trial court did not appoint an attorney to represent Mosby before permitting him to waive a jury trial, as required by Article 1.13(c) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 1.13(c) (Vernon Supp. 2004). "The defendant in a criminal prosecution for any offense may waive any rights secured him by law except that a defendant in a capital felony case may waive the right of trial by jury only in the manner permitted by Article 1.13(b) of [the Texas Code of Criminal Procedure]." Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon Supp. 2004); see Tex. Code Crim. Proc. Ann. art. 1.13(b) (Vernon Supp. 2004). Mosby was not charged with a capital crime. Our law permits Mosby to waive any right, including his right to have counsel appointed to represent him. Mosby knowingly and intelligently waived his right to a jury trial. No error has been shown. We overrule Mosby's fifth point of error.

Quashing Witness Subpoenas

In his sixth point of error, Mosby contends the trial court erred by quashing his subpoenas for Senator Rodney Ellis and Representative Garnet Coleman, both members of the Texas Legislature. Mosby subpoenaed Senator Ellis and Representative Coleman to testify at trial. The trial court granted the State's motions to quash those subpoenas.

An appellate court may not find the trial court erred by excluding evidence unless a substantial right of the party is affected and the party seeking to have the evidence admitted makes an offer of proof as to what the excluded testimony would be. Simmons v. State, 100 S.W.3d 484, 495 (Tex. App. Texarkana 2003, pet. ref'd); see also Tex. R. Evid. 103. At the hearing on the motions to quash the subpoenas, Mosby did not make any offer of proof at the trial showing what the testimony of Senator Ellis and Representative Coleman would have been had they testified. Accordingly, this issue has not been preserved for appellate review.

Trial Judge's Appointment to Preside by Administrative Judge

In his seventh point of error, Mosby contends the trial judge, Honorable Charles J. Hearn, rendered judgment during a time when he was disqualified from service. The presiding judge of an administrative region may assign the judges within the region to hold special or regular terms in any county of the region. Tex. Gov't Code Ann. 74.056 (Vernon 1998). Honorable Olen Underwood, Presiding Judge of the Second Administrative Judicial Region, assigned Judge Hearn, as senior judge of the 263rd Judicial District Court, to preside over the 351st Judicial District Court of Harris County, Texas, for a period of at least one week, beginning November 4, 2002, and continuing until all trials begun during the initial week of the assignment had concluded. The assignment did not restrict Judge Hearn's ability to exercise plenary jurisdiction over the assigned court during the term provided by the assignment.

A judge who is assigned pursuant to Article 74.056 "has plenary authority over the case to the extent of the assignment order." Davis v. Crist Indus., Inc., 98 S.W.3d 338, 341 (Tex. App. Fort Worth 2003, pet. denied). Mosby's trial in the 351st Judicial District Court began November 4, 2002, the same day Judge Hearn's assignment commenced. Accordingly, Judge Hearn's assignment was proper and did not result in the rendition of a judgment during a time when the trial judge lacked authority to act. See also Davis v. State, 956 S.W.2d 555, 557 59 (Tex. Crim. App. 1997) (distinguishing trial court's jurisdiction from trial judge's authority).

Lack of Venue And Jurisdiction

In his eighth and ninth points of error, Mosby contends venue was not proper in Harris County and the trial court lacked jurisdiction. Mosby contends venue and jurisdiction lie exclusively in Travis County before the Texas State Board of Medical Examiners. To establish venue at trial, the State must prove the offense was committed in the county alleged. Skelton v. State, 626 S.W.2d 589, 592 (Tex. App. Texarkana 1981, no pet.). In the case now before us, the indictment alleged that Mosby delivered a prescription form for a controlled substance for other than a valid medical purpose and that this occurred in Harris County, Texas. See Tex. Health & Safety Code Ann. 481.129 (Vernon 2003). The State was not prosecuting Mosby for a violation of the Texas Medical Practice Act, as Mosby now contends on appeal. Venue thus lies with a Harris County district court.

The 351st Judicial District is composed of Harris County, Texas. Tex. Gov't Code Ann. 24.497 (Vernon 1988). A district court "has the jurisdiction provided by Article V, Section 8, of the Texas Constitution." Tex. Gov't Code Ann. 24.007 (Vernon 1988). "District Court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by [the Texas] Constitution or other law on some other court, tribunal, or administrative body." Tex. Const. art. V, 8. District courts in Texas have criminal jurisdiction. Tex. Code Crim. Proc. Ann. art. 4.01 (Vernon Supp. 2004). Neither the Texas Constitution nor the Texas Legislature, via statute, has accorded exclusive original jurisdiction over the criminal prosecution of an offense under Section 481.129 to a county other than the one in which the crime allegedly occurred. Tex. Health & Safety Code Ann. 481.129. Nor has the Legislature limited subject matter jurisdiction over this case to a separate court or tribunal. In this case, once the grand jury returned an indictment against Mosby that alleged he committed a felony offense in Harris County, Texas, jurisdiction over the case vested with the district court. We overrule Mosby's eighth and ninth points of error.

Double Jeopardy and Res Judicata

In his tenth point of error, Mosby complains double jeopardy bars prosecution of this case. Mosby believes criminal prosecution is foreclosed in this case by a finding from the Texas Board of Medical Examiners that Mosby did not violate the Drug Abuse Prevention and Control Act of 1970. See 21 U.S.C.A. 801 971 (West 1999 & Supp. 2003). The Texas Constitution prohibits prosecuting a person twice for the same offense after a verdict of not guilty by a court of competent jurisdiction. Tex. Const. art. I, 14. A prior action by an administrative body generally does not, however, preclude the State from bringing charges against an individual in a criminal prosecution. Cf. Hudson v. United States, 522 U.S. 93 (1997) (double jeopardy does not bar prosecution for illegal lending transactions, where individuals had stipulated to sanctions in prior administrative proceedings involving same transactions); Reynolds v. State, 4 S.W.3d 13, 17 (Tex. Crim. App. 1999) (Department of Public Safety administrative finding of no reasonable suspicion to make traffic stop does not preclude subsequent criminal prosecution for driving while intoxicated). We overrule Mosby's tenth point of error.

Failure To Arraign Mosby

In his eleventh point of error, Mosby asserts the trial court committed reversible error by failing to arraign him. "In all felony cases, after indictment . . . there shall be an arraignment." Tex. Code Crim. Proc. Ann. art. 26.01 (Vernon 1989). Arraignment may, however, be waived. Richardson v. State, 508 S.W.2d 380, 381 (Tex. Crim. App. 1974). Once the defendant's identity has been established and he or she has been afforded an opportunity to enter a plea, the purpose of arraignment has been fulfilled. Id. at 381 82; see also Tex. Code Crim. Proc. Ann. art. 26.02 (Vernon 1989). An accused waives the right to arraignment if that right is not raised for the first time in a motion for new trial. Richardson, 508 S.W.2d at 381.

In the case now before us, Mosby's identity was established during numerous pretrial proceedings not formally labeled "arraignment." The trial court permitted Mosby to enter a plea during those hearings, thereby fulfilling the purpose of arraignment. Mosby has not directed our attention to any location in the record now before us where he asserted his right to arraignment before the trial court. See Tex. R. App. P. 38.1(h). No error has been shown.

Defective Indictment

In his twelfth and fifteenth points of error, Mosby contends the indictment is defective because it fails to give adequate notice of the charge against him. Before trial, Mosby moved to quash the indictment because he claimed the indictment did not adequately inform him of the nature of the accusation against him. The trial court overruled the motion to quash.

An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment . . . ."

Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 1989). Generally, an indictment which tracks the applicable statute or statutes will satisfy constitutional and statutory requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).

Under Texas law, a person commits an offense if he or she "knowingly or intentionally delivers a prescription or prescription form for other than a valid medical purpose in the course of professional practice." Tex. Health & Safety Code Ann. 481.129(c)(1). This offense is a third-degree felony if the controlled substance is listed in Schedule III. Tex. Health & Safety Code Ann. 481.129(d)(2). A material, compound, mixture, or preparation containing "not more than 300 milligrams of dihydrocodeinone (hydrocodone), or any of its salts, per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts" is a Schedule III drug. Tex. Health & Safety Code Ann. 481.104(a)(4) (Vernon 2003).

The indictment against Mosby alleged he,

on or about August 3, 2001, did then and there unlawfully, intentionally, and knowingly deliver a prescription for a controlled substance, namely, NOT MORE THAN 300 MILLIGRAMS OF DIHYDROCODEINONE, OR ANY OF IT'S [sic] SALTS, PER 100 MILLILITERS OR NOT MORE THAN 15 MILLIGRAMS PER DOSAGE UNIT, WITH ONE OR MORE ACTIVE NONNARCOTIC INGREDIENTS IN RECOGNIZED THERAPEUTIC AMOUNTS, to M. VANA, for other than a valid medical purpose in the course of professional practice.

After comparing the indictment with the language in the applicable statutes, we find the indictment tracks the applicable statutory language.

Moreover, at the hearing on the motion to quash, the trial court asked, "Dr. Mosby, do you feel like you have a rational as well as factual understanding of the proceedings against you, the charges?" Mosby responded affirmatively. Mosby's admission before the trial court that he had a factual understanding of the charges against him eviscerates his contention on appeal to the contrary. We overrule his twelfth and fifteenth points of error.

Evidentiary Sufficiency

Also in his fifteenth point of error, Mosby contends the evidence is factually and legally insufficient to support his conviction. Similarly, Mosby challenges the factual sufficiency of the evidence in his third point of error based on his filing of numerous, unrebutted affidavits which he contends negate one or more elements of the crime.

In a legal sufficiency review, we examine all the record evidence in the light most favorable to the judgment and determine whether a rational fact-finder could have found each element of the offense proven beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). When we review the evidence for factual sufficiency, we must examine all the evidence in a neutral light, setting aside the verdict only if the evidence supporting the verdict is greatly outweighed by contrary evidence, or is clearly wrong or manifestly unjust. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).

In his judicial confession of guilt, Mosby admitted that, on or about August 3, 2001, he

unlawfully, intentionally, and knowingly deliver[ed] a prescription for a controlled substance, namely, NOT MORE THAN 300 MILLIGRAMS OF DIHYDROCODEINONE, OR ANY OF IT'S [sic] SALTS, PER 100 MILLILITERS OR NOT MORE THAN 15 MILLIGRAMS PER DOSAGE UNIT, WITH ONE OR MORE ACTIVE, NONNARCOTIC INGREDIENTS IN RECOGNIZED THERAPEUTIC AMOUNTS, to M. Vana, for other than a valid medical purpose in the course of professional practice.

This confession's language adequately tracks both the indictment in this case and the applicable statutes defining the offense with which Mosby was charged. Thus, there is evidence from which the trial court could have found each of the essential elements of the crime to be proven beyond a reasonable doubt. See id. The judicial confession is also not greatly outweighed by contrary evidence, nor does the evidence show the trial court's judgment was manifestly unjust, especially considering the trial court approved Mosby's negotiated plea agreement with the State. We overrule Mosby's second, third, and fifteenth points of error.

Speedy Trial

In his thirteenth point of error, Mosby contends he was denied his right to a speedy trial. The Sixth Amendment to the United States Constitution provides that a defendant shall, in all criminal prosecutions, "enjoy the right to a speedy . . . trial." U.S. Const. amend. VI. The Texas Constitution also affords this protection to criminal defendants. Tex. Const. art. I, 10.

"In determining whether a criminal defendant has been denied his federal or state constitutional right to a speedy trial, a court must use a balancing test in which the conduct of both the State and the defendant are weighed." Shaw v. State, No. 1539-02, 2003 WL 22346384, at *3 (Tex. Crim. App. Oct. 15, 2003). "The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant's assertion of his speedy trial right, and the prejudice to the defendant resulting from the delay." Id. No single factor is dispositive in this balancing analysis. Id. Our review must be made "in light of the arguments, information, and evidence available to the trial court" at the time of trial. Id.

We measure the first factor the length of delay by measuring the time between the date of arrest or indictment until the time of trial. Id. at *4. In this case, the grand jury indicted Mosby in mid-September 2001. Mosby pled guilty to the charge November 5, 2002. Generally, a delay of more than a year is sufficient to trigger a speedy trial inquiry. Id. In this case, an almost fourteen-month delay in trial was sufficient to trigger a speedy trial inquiry. The first factor, therefore, balances in favor of Mosby.

In considering the second factor the reason for the delay we must assign different weights to the varying reasons given to explain the delay. Id. On at least seven occasions between September 18, 2001 and November 1, 2002, the parties entered agreed continuances. The orders reflecting the agreed settings do not explain the bases for each rescheduling of the case. The fact, however, that Mosby agreed to continue the case for trial shows he was, at least in part, responsible for the delay. Thus, this factor weighs against Mosby.

The third factor assertion of the right to a speedy trial weighs in Mosby's favor. Despite agreeing to continuing the case during several preceding months, on July 23, 2002, Mosby clearly expressed his desire to go to trial the following week. The State asked the case be continued from the trial docket because:

Prosecutor: First of all, about a week ago the Defendant filed a subpoena request with the process server here that listed approximately 100 witnesses, everybody from the President of the United States, down to I think maybe whoever picks up his garbage at his house.

Now, those have not been served and I think somebody needs to parse through his subpoena request possibly and find out which are valid and which are not and get those things served. That's Problem No. 1.

Problem No. 2 is the Court has appointed Mr. Hagstette to act as shadow counsel in the case. Mr. Hagstette has not had an opportunity to go through this file fully and completely.

Our concern is and the purpose of shadow counsel is if a person who represents himself finds that he's treading deep water and needs some help, that person can then turn to that attorney who is prepared to step forward, pick up the defense and move it on.

And right now, I don't think Mr. Hagstette's had the opportunity to either to one, go through everything because we're talking about two file boxes here, stuff on our side, plus a number of tapes and some other things. But also the chance to even visit with Dr. Mosby on this matter.

And I've just got a whole big concern that we'll wind up trying this thing twice if we kick it off, you know, this Friday because I just these problems that are apparent to me.

And when a non-attorney represents himself or herself, you know, we're on our side of the case we have to really think both sides here from a matter of fairness. I am greatly concerned about all of this and that's why I'm asking the Court to reschedule this thing for no other reason to give Mr. Hagstette the opportunity to have some comfort level in the role in this case.

The trial court then continued the case until October to allow "Mr. Hagstette to have time to get ready to play his part as stand-by counsel in case at some point in the trial you [Dr. Mosby] change your mind."

The need for competent, prepared standby counsel one who is fully abreast of the case and the issues presented, and who would be able to step in at any point during the trial cannot be understated. Standby counsel is essential to the fair administration of justice should the need arise for the attorney to take control of defending the accused. On July 1, 2002, the trial court appointed Eric Hagstette as standby counsel. The case was scheduled for trial Friday, July 25, 2002; the State requested the continuance July 23, 2002, for the purpose of giving standby counsel more time to prepare. We believe the trial court had good cause to grant the continuance, given the arguments of counsel and the voluminous record to be reviewed by standby counsel. Accordingly, this factor weighs against finding a violation of Mosby's right to a speedy trial.

"When a court assesses the final factor, prejudice to the defendant, it must do so in light of the interests which the speedy trial right was intended to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the defendant's anxiety and concern; and (3) to limit the possibility that the defendant's defense will be impaired." Id. at *5. The Texas Court of Criminal Appeals has identified the third limitation as the most serious, "'because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" Id. (quoting Barker v. Wingo, 407 U.S. 514, 532 (1972)). "On the other hand, this presumption of prejudice to the defendant's ability to defend himself is 'extenuated . . . by the defendant's acquiescence' in the delay.'" Id. (quoting Doggett v. United States, 505 U.S. at 658.

Here, Mosby was incarcerated during much of the time he awaited trial. With respect to the second interest, Mosby offered no evidence the delay had caused him any anxiety or concern beyond the level normally associated with a felony charge. Finally, we must presume the lengthy delay in getting the case to trial did not adversely affect Mosby's ability to present a defense for two reasons: First, he acquiesced to much of the delay. Cf. id. Second, at the next trial setting following his asserting the speedy trial right, Mosby pled guilty and was sentenced pursuant to a negotiated plea agreement.

After balancing the factors both for and against finding a violation of the right to a speedy trial, we hold the four factors, balanced together, weigh against finding a violation of Mosby's right to a speedy trial. We therefore overrule Mosby's thirteenth point of error.

Ineffective Assistance of Counsel

In his fourteenth point of error, Mosby contends he received ineffective assistance of counsel at trial. Mosby represented himself at trial. "[A] defendant who chooses to forgo the assistance of counsel and represent himself at his trial also necessarily waives his right to complain on appeal that he was rendered ineffective assistance." Robinson v. State, 16 S.W.3d 808, 813 n.6 (Tex. Crim. App. 2000). We overrule this point of error.

Conspiracy

In his final point of error, Mosby contends law enforcement officers conspired with members of the Texas State Board of Medical Examiners to have Mosby fraudulently convicted. Mosby has inadequately briefed this point. Tex. R. App. P. 38.1(h) requires a brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Mosby's brief on this point is wholly inadequate in its citation to the record and fails to provide a clear and concise argument concerning how the facts of his case relate to the requirements of a claim for fraud. By failing to properly brief this issue, Mosby has waived this point of error. Cf. McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001) (appellant failed to explain how factual record supported point of appeal; point of error waived for failing to adequately brief issue).

Furthermore, the record in this case shows Mosby pled guilty to the charged offense and his plea was entered willingly, knowingly, and voluntarily. As such, even if we were to find Mosby had adequately presented this issue for review, the record does not support his claim that his conviction was a product of anything other than his voluntary guilty plea.

Conclusion

For the reasons set forth above, we affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 28, 2004

Date Decided: January 29, 2004

Do Not Publish