Michael Tremal Sanders v. The State of Texas--Appeal from 6th District Court of Lamar County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00104-CR

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MICHAEL SANDERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 20576

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

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

After Lamar County jailers told inmate Michael Sanders he was wrong in concluding he had received no milk with his breakfast, Sanders became furious, beat on the walls of his cell, and ultimately threw urine and feces on three officers who were attempting to get him under control. // A jury convicted Sanders of three offenses // of harassment by a person in a correctional facility, with one prior conviction. The jury assessed Sanders' punishment for each of the three offenses at fifteen years' imprisonment. The trial court ordered those sentences to run concurrently and then stacked them onto the sentence Sanders was already serving.

Sanders urges multiple points of error. We affirm the trial court's judgment because (1) sufficient evidence supports the implicit jury finding of Sanders' criminal intent; (2) during voir dire, the State was not erroneously allowed to present Sanders' criminal history to the panel; (3) allowing the victim to testify concerning his own medical diagnosis was not error; and (4) error in allowing victim impact testimony during the guilt/innocence phase was not preserved.

(1) Sufficient Evidence Supports the Implicit Jury Finding of Sanders' Criminal Intent

Sanders first contends there is legally and factually insufficient evidence to support the verdict because the State did not prove Sanders intended to harass, alarm, or annoy the officers involved. Sanders asserts the evidence shows his intentions were focused, instead, on either the trustees or another inmate.

In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

To establish the offense of harassment by a person in a correctional facility, the State was obliged to prove that Sanders,

(a) . . . with the intent to assault, harass, or alarm, . . .

(1) while imprisoned or confined in a correctional or detention facility, cause[d] another person to contact the . . . saliva, urine, or feces of the actor . . . .

See Tex. Pen. Code Ann. 22.11 (Vernon Supp. 2005).

Sanders contends the evidence is insufficient because there is a lack of proof of his intent to "assault, harass, or alarm" the jail staff. Sanders testified that he originally saved the feces and urine in a cup to harass the inmate in the adjoining cell, and that he instigated the disturbance to make it hard on the trustees. He further testified that he threw the mixture out the "bean hole" to stop officers from using the pepper spray, and his counsel notes the "bean hole" is approximately the width of two cafeteria trays, narrow enough to prevent Sanders from clearly seeing on whom he was throwing the substances. The argument raised from that evidence is that he could not have formulated the intent to harass the officers, because he threw the materials out of his cell without knowing who would be hit, and that the only evidence of intent was that he intended to harass a fellow inmate or the trustees.

We find this argument unpersuasive. First, we note that neither the statute nor the indictment required the State to prove that Sanders' intent to harass was directed at any officer. By his own admission, Sanders intended to harass someone, namely the trustees or a fellow inmate. That, alone, was sufficient proof of his intent. Also, Sanders' contentious, disruptive behavior, which continued or returned even after multiple warnings, was such that he would be fully aware that officers would eventually arrive to calm the situation. The jury could also conclude Sanders knew the pepper spray, which had been sprayed into his cell just before he threw the offending substances out of his cell, was unlikely to have been used by fellow inmates or trustees, but by officers alone.

The scene, as it unfolded, also dooms Sanders' argument to failure. The trustees first cleared the feces and urine away from the door, and an officer then sprayed pepper spray through the "bean hole." Officer Foster testified that he could see Sanders through the hole and that Sanders left the entry and then came back with the cup, stuck his arm out to about the elbow, and threw the urine and feces on the officers, hitting Foster in the face. Foster testified that Halton had the mixture on her back and in her hair and that Jimenez had it on her glasses, face, and uniform. Halton and Jimenez testified consistently to the same sequence of events.

Intent may be directly proven, or it may be inferred from circumstantial evidence such as acts, words, and the conduct of an appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). The evidence set out above directly shows Sanders' intent to throw the malodorous and dangerous substances on the officers, or at least on someone.

There is both legally and factually sufficient evidence to allow a rational fact-finder to find Sanders guilty, and the contrary evidence is not strong enough that the State could not have met its burden of proof. See Zuniga, 144 S.W.3d at 484 85. We overrule these assertions of error.

(2) During Voir Dire, the State Was Not Erroneously Allowed To Present Sanders' Criminal History to the Panel

Sanders next contends the trial court committed reversible error by allowing the State to present Sanders' criminal history to the jury during voir dire. Specifically, he argues that, even though the State may voir dire the jury in hypothetical terms about the applicable range of punishment if prior convictions are proven for enhancement, the State went beyond hypotheticals and informed the panel that Sanders was a convicted felon. See Frausto v. State, 642 S.W.2d 506, 509 (Tex. Crim. App. [Panel Op.] 1982); Johnson v. State, 901 S.W.2d 525, 532 (Tex. App. El Paso 1995, pet. ref'd).

We have reviewed the language used by the State during voir dire. The State asked the panelists if they were "okay . . . with the prospect that we are holding a person's past against them to enhance the penalty range?" This does not inform the panel that Sanders was a convicted felon, the nature of any earlier crime, or provide specific information about the enhancements that would be sought. In light of the fact that the State was entitled to voir dire the panel on the full range of potential punishment, we find no error here.

(3) Allowing the Victim To Testify Concerning His Own Medical Diagnosis Was Not Error

Sanders next contends the trial court erred by allowing Officer Foster to testify about his own medical diagnosis. Foster testified, over objection, that after this incident, he was tested for H.I.V. and hepatitis, and that he was diagnosed with acute hepatitis B. He also testified he had been tested six months earlier and did not have the disease at that time.

There is little argument under this contention. Sanders suggests Foster was not an expert and could not testify as a lay witness. But Foster did not testify as an expert: he testified about his personal knowledge of the illness he had been diagnosed as having.

Sanders complains about the following testimony:

[THE STATE]: Did those tests coming [sic] back?

[WITNESS FOSTER]: Yes, sir.

[THE STATE]: What were the results?

[DEFENSE COUNSEL]: Objection, Your Honor, no foundation.

[THE STATE]: What was the diagnosis?

[WITNESS FOSTER]: The doctor's diagnosis?

[COURT]: Hold on. You may ask him what the diagnosis was.

[THE STATE]: What was the diagnosis on the hepatitis?

[WITNESS FOSTER]: Hepatitis B, acute.

On appeal, Sanders notes that he had objected based on lack of foundation, but then goes on to complain that, because Foster was not a qualified expert, he could not provide evidence of causation and that no showing of relevance or reliability was made. The only one of these contentions that was adequately preserved is the objection actually made, that there was no foundation to admit the test results. See Tex. R. App. P. 33.1. Arguably, that extends far enough to also cover the trial court's statement that the medical diagnosis could be admitted over that objection.

A witness may testify to that of which he or she has personal knowledge. See Tex. R. Evid. 602. In this case, the testimony shows that Foster had knowledge of his own medical history, and the court did not err by overruling the objection. We overrule this contention of error.

(4) Error in Allowing Victim-Impact Testimony During Guilt/Innocence Phase Was Not Preserved

Sanders contends it was error // to permit victim impact testimony during the guilt/innocence phase of trial. This argument is based on Foster's testimony, set out above, concerning his contracting hepatitis. Sanders' trial counsel did not object on this basis, thus the claimed error is waived. See Tex. R. App. P. 33.1.

Generally, a party's failure to timely and specifically object at the trial court level waives error. Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000). An accused may waive even constitutional rights. Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002).

But Sanders also contends that this is a fundamental error as contemplated by Rule 103(d) of the Texas Rules of Evidence and that, thus, we should review the matter in the interest of justice.

Rule 103(d) authorizes us in a criminal case to take "notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." See Tex. R. Evid. 103(d). Fundamental errors exist when rights are violated that are considered so fundamental to the proper functioning of our adjudicatory process that they cannot be forfeited they are not extinguished by inaction alone. Blue, 41 S.W.3d at 131. Instead, for an accused to lose a fundamental right, he or she must expressly relinquish that right. Id.; Nunez v. State, 117 S.W.3d 309, 319 (Tex. App. Corpus Christi 2003, no pet.).

Sanders has not set out any argument to suggest error other than his contention that this testimony constitutes inadmissible "victim impact evidence." He also makes no attempt to supply cases discussing situations in which courts have found the same or similar testimony to have been fundamentally erroneous. That of itself provides inadequate briefing on this topic to justify review. See generally Tex. R. App. P. 38; Lunsford v. State, 896 S.W.2d 394, 397 (Tex. App. Beaumont 1995, no pet.) (failure to preserve and provide argument about victim impact testimony at guilt/innocence phase of trial).

Fundamental errors that survive the failure to object timely were either absolute, systemic requirements, or rights that were waivable only. Saldano, 70 S.W.3d at 887 88. Error in admitting evidence, even if constitutional rights are implicated, is neither systemic nor waivable only, and thus is not fundamental. Id. at 889. Since this claimed error has to do solely with the admissibility of evidence, and no argument is presented that would arguably move it into a category of being either waivable only or an absolute systemic requirement, we overrule this contention of error.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 6, 2005

Date Decided: January 5, 2006

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