Daniel Lee Schinzing v. The State of Texas--Appeal from of County

Schinzing v State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-96-225-CR

 

DANIEL LEE SCHINZING,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the County Court at Law No. 2

Johnson County, Texas

Trial Court # M95-2360

 

O P I N I O N

Appellant Schinzing appeals his conviction for driving while license suspended, revoked or canceled, for which he was sentenced to 150 days in the county jail and a $500 fine.

Appellant was stopped by Officer Pilato of the Cleburne Police Department on August 15, 1995, and was arrested for driving while license revoked. Appellant was thereafter tried on the State's amended information which alleged Appellant, on August 15, 1995, intentionally and knowingly drove and operated a motor vehicle on a public road in Johnson County while his operator's license was suspended, revoked or canceled.

A jury convicted Appellant and assessed 150 days in the county jail and a $500 fine.

Appellant represented himself in propria persona at trial and represents himself on appeal propria persona. He appeals on 18 points of error.

Point 1 asserts Appellant never understood the nature of the charges. He contends he was entitled to have "gist of the offense charged in direct and unmistakable terms," and that in this case he "in no way could determine the nature or cause of the accusations against him."

The amended information alleges "Appellant, on or about August 15, 1995, after [he] had been issued an operator's license to drive a motor vehicle . . . and while said operator s license was suspended, revoked or canceled, . . . intentionally and knowingly drove and operated a motor vehicle upon a public road in Johnson County, Texas"

Additionally the court advised Appellant what he was charged with, and that it was a misdemeanor offense set forth in Art. 6687b, 34.

Point 1 is overruled.

Point 2 asserts Appellant was denied the right to talk about the law in the presence of the jury.

An accused has the right to be heard by himself or counsel. This right, however, must of necessity be restricted to matters which come within the province of the jury for their determination. Christoph v. State, 314 S.W.2d 840 (Tex. Crim. App. 1958). At no time was Appellant denied the right to present his case, and he was properly restricted from testifying to the jury about the law. It is the judge who must instruct the jury on the law applicable to the case. Taylor v. State, 885 S.W.2d 154, 157 (Tex. Crim. App. 1994). Whether evidence sought to be introduced is relevant is a matter of law to be determined by the trial court. Werner v. State, 680 S.W.2d 858, 862 (Tex. App. Houston [1st Dist.] 1984), affirmed, 771 S.W.2d 639 (Tex. Crim. App.1986).

Point 2 is overruled.

Point 3 asserts that the officer who arrested Appellant had not filed the bribery statement before taking his oath of office, and was therefore not a legitimate police officer.

The Texas Constitution art. 16, 1(d), requires that:

The Secretary of State and all other appointed officers, before taking the oath or affirmation of office prescribed by this section and entering upon the duties of office, shall subscribe to the following statement:

I do solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, contributed, or promised to contribute any money, or valuable thing, or promised any public office or employment, as a reward to secure my appointment or confirmation thereof, so help me God.

 

Appellant equates a police officer with an appointed office and contends that because Officer Pilato had not taken the foregoing oath, he had no authority as a police officer.

In Solderman v. State, 915 S.W.2d 605, 612 (Tex. App. Houston [14th Dist.] 1996, pet. ref'd), the appellant contended the police officer who arrested him lacked authority to do so because he failed to file a signed "anti-bribery" statement before taking his oath of office as required by Art. 16, 1, of the Texas Constitution. The court held that failure to file the anti-bribery statement before taking his oath did not render an arrest "invalid."

In Attorney General Opinion DM-381 (1996), the question was asked whether city police officers are "appointed officers" under Art. 16, 1, of the Texas Constitution. The opinion advised to err on the side of caution and assume that a police officer must take the oath required by Art. 16, 1, until the courts answer the question. The attorney-general further opined that arrests made by an officer who had not taken the above oath would be valid as an arrest made by a defacto officer.

Under the record Officer Pilato was at least a defacto officer and the arrest was lawful and valid.

Point 3 is overruled.

Point 4 asserts that the affidavit supporting the information was not made by a person with first-hand knowledge.

The purpose of a "complaint" or affidavit supporting an information is to apprise the accused of the facts surrounding the offense with which he is charged so that he may prepare a defense.

Kindley v. State, 879 S.W.2d 261, 263 (Tex. App. Houston [14th Dist.] 1994, no writ).

Tex. Code Crim. Proc. Ann., art. 15.05, provides that a complaint shall be sufficient without regard to form if it:

1. States the name of the accused . . . ;

2. Shows that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense;

3. States the time and place of the commission of the offense, as definitely as can be done; and

4. Is signed by the affiant by writing his name . . . .

A complaint is sufficient if it meets the requirements of Art. 15.05. Kindley, supra.

There is no requirement that the affiant have first-hand knowledge since the affiant may base the accusation in the complaint upon information contained in a police report. Smith v. State, 811 S.W.2d 665, 668 (Tex. App. Houston [14th Dist.] 1991, pet. ref'd).

The information in this case fairly informed Appellant of the charge against him and the affidavit supporting the information met the requisites of Art. 15.05.

Point 4 is overruled.

Point 5 asserts the charge against him was an offense of the civil statutes, yet he was tried for a criminal offense.

Appellant was tried pursuant to Texas Revised Civil Statutes Annotated, art. 6687b, 34. This statute characterizes the offense for which Appellant was charged as a misdemeanor. Carter v. State, 702 S.W.2d 774, 777 (Tex. App. Fort Worth, pet. ref'd). The language of the statute is clear. Appellant cannot take the word "civil" from the statutes and insert it into art. 6687(b) to make it a civil offense.

Point 5 is overruled.

Point 6 asserts the information was defective because it spells his name in all capital letters.

Point 6 is overruled.

Point 7 asserts that the officer had no authority to stop Appellant; that the peace officer's only authority was to stop government-owned vehicles and vehicles used in commerce on the highways.

Appellant admitted running a red light as he was traveling in an automobile. The automobile had an engine and was self-propelled. Art. 6701, 153, Texas Revised Civil Statutes, provides that "any peace officer is authorized to arrest without warrant any person found in violation of this act." Section 32 requires "the driver of any vehicle . . . shall obey the instruction of any official traffic control device applicable and placed in accordance with the provisions of this act; section 33 states vehicular traffic facing a steady red light shall stop.

Officer Pilato had the authority to stop Appellant after he failed to stop for the red light.

Point 7 is overruled.

Point 8 asserts Appellant was denied a trial by jury guaranteed by the U.S. and Texas Constitutions due to being tried by a jury of six rather than twelve.

Tex. Rev. Civ. Stat. Ann. art. 6687b, 334, provides that driving while license suspended, canceled or revoked is a misdemeanor punishable by fine of $100 to $500 and confinement in jail for not less than 72 hours or more than 6 months.

Article 4.07, Texas Code of Criminal Procedure, gives County Courts original jurisdiction of all misdemeanors which is not given to the Justice Courts. Article 4.11 gives the Justice Courts original jurisdiction of criminal cases punishable by fine only.

Section 25.1281 of the Government Code provides Johnson County with Statutory County Courts being, County Courts at Law 1 and 2. Section 25.003 provides a Statutory County Court has jurisdiction of all cases prescribed by law for County Courts. Rutledge v. Rutledge, 720 S.W.2d 633, 635 (Tex. App. Fort Worth 1986, no writ) holds there is no constitutional prohibition against the Legislature providing that a County Court at Law may have a six-person jury. Williams v. Florida, 399 U.S. 78 (1970) holds the U.S. Constitution is not violated by a state providing a six-person rather than a twelve-person jury.

Point 8 is overruled.

Point 9 asserts Appellant was not allowed to have counsel of choice nor secretarial assistance at the table with him during trial.

Appellant filed a motion to proceed in propria persona. He specifically asked the court to allow him to defend himself and stated he did not want to be represented by counsel as he did not trust legal counsel. The trial court ruled that a licensed attorney could assist Appellant at counsel s table and that he could have a secretary on the first row directly behind him. The trial court warned Appellant of the practical consequences of waiving counsel and informed him that he is bound by the rules of evidence and procedure and would not be given special consideration because of his ignorance of the law. Daniels v. State, 921 S.W.2d 377, 381, 382 (Tex. App. Houston [1st Dist.] 1996, pet. ref d).

Appellant voluntarily and intelligently waived his right to representation by a licensed attorney.

Point 9 is overruled.

Point 10 asserts the trial court refused to allow the jury to rule on the law.

Article 36.13 of the Texas Code of Criminal Procedure provides that the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby. Article 36.14 provides that in every case tried to a jury, before the argument begins, the trial court shall deliver to the jury a written charge distinctly setting forth the law applicable to the case. Walker v. Walker, 823 S.W.2d 247, 249 (Tex. Crim. App. 1991).

Point 10 is overruled.

Point 11 asserts Appellant was denied a fair trial because pretrial correspondence from the trial addressed the County Attorney as Honorable, and Appellant as Mr.

Appellant has not shown any prejudice or how he was denied a fair trial by the court s addressing the County Attorney as Honorable and Appellant as Mr. in pretrial correspondence. Moreover, Appellant never objected and failed to seek a ruling from the trial court as to whether he was prejudiced, thus failing to preserve the complaint for appeal. Tex. R. App. P. 52(a).

Point 11 is overruled.

Point 12 asserts the trial court erred in not granting Appellant s motion to recuse himself on the ground that he was a member of the Masonic Lodge.

Appellant argues that a Mason has taken an oath that he will side with a brother Mason in all situations except murder and treason and for such reason there is no way he could provide over a fair trial.

Tex. R. App. P. 18a provides:

at least ten days before the date of trial or other hearing . . . any party may file . . . motion stating why the judge, before whom the case is pending, should not sit in the case . . . the motion shall be verified and must state with particularity the grounds why the judge should not sit. The motion shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence, provided that facts may be stated upon information and belief, if the grounds of such belief are specifically stated.

Rule 18a further provides that prior to further proceedings, the judge shall either recuse himself or request the presiding judge of the Administrative Region to assign a judge to hear the motion.

However, the trial judge can properly make an initial determination as to whether the recusal motion is in compliance with the rule. Sanchez v. State, 927 S.W.2d 195, 197 (Tex. App. El Paso 1996, no writ).

Appellant filed two motions to recuse the trial judge on the ground he was a Mason. The trial court properly overruled the first motion for recusal as not being timely filed and not being verified; and properly overruled the second motion as not being timely filed.

Additionally, Appellant s grounds for recusal in both motions are generalities, non-specific and not based on personal knowledge. Thus a mandatory hearing by another judge was not triggered by these generalities. Arnold v. State, 778 S.W.2d 172, 180 (Tex. App. Austin 1989), affirmed, 853 S.W.2d 543 (Tex. Crim. App. 1993).

Point 12 is overruled.

Point 13 asserts Appellant did not have an impartial jury to hear his case.

Appellant contends that, since none of the jury pool had read the Texas Constitution; almost none had read the traffic laws; and none could tell Appellant the definition of the term motor vehicle, that these facts make the jury partial to the State.

Appellant made no objection to the venire and has failed to preserve any error. Additionally, none of Appellant s contentions sustain a conclusion that the jury was not impartial.

Point 13 is overruled.

Point 14 asserts Appellant was not allowed to testify about the law to the jury.

A jury is bound to receive the law from the court and be governed thereby. Tex. Code Crim. Proc. Ann. art. 36.13.

Point 14 is overruled.

Point 15 asserts the trial court erred in not granting his motion for a new trial.

Appellant filed a motion for new trial but never requested a hearing on same. The trial court permitted the motion to be overruled by operation of law.

A motion for new trial must be timely filed and presented under Rule 31, Texas Procedure of Appellate Procedure. Owens v. State, 832 S.W.2d 109, 111 (Tex. App. Dallas 1995, no writ). Appellant s motion was never presented or a request made for a hearing on same. The trial court did not err in allowing it to be overruled by operation of law.

Point 15 is overruled.

Point 16 asserts the trial court prevented him from introducing copies of laws and legal definitions to the jury.

It is the trial court that must instruct the jury on the laws applicable to this case. Tex. Code Crim. Proc. art. 36.14.

Point 16 is overruled.

Point 17 asserts Appellant s lack of opportunity to give jury instructions to the court for inclusion in the charge requires reversal.

Appellant contends he had instructions prepared but was unaware of the proper time to present them to the court.

Pro se litigants are held to the same standards as licensed attorney. Kindley v. State, 879 S.W.2d 261, 264 (Tex. App. Houston [14th Dist.] 1994, no writ). In order to preserve error to the jury charge there must either an objection or a requested charge. Article 36.14, Texas Code of Criminal Procedure, required Appellant to object and obtain an adverse ruling to preserve any error. Appellant has not shown or preserved any error.

Point 17 is overruled.

Point 18 asserts the judge slipped the word automobile into the jury charge.

The court s charge in pertinent part in I instructed the jury that:

any person who operates a motor vehicle on the highways of this state while his license is suspended or revoked is guilty of a misdemeanor.

The charge in pertinent part in V instructed the jury that:

if you find beyond a reasonable doubt defendant operated a motor vehicle, to-wit, or automobile, upon a public road or highway while his license was suspended or revoked, then you will find the defendant guilty. Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.

Appellant did not object to the charge and has not preserved error. Tex. Code Crim. Proc. art. 36.14. Moreover, a motor vehicle is defined in article 6701d as every vehicle which is self propelled, which thus includes an automobile. Appellant has not shown or preserved error.

Point 18 is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

 

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed June 18, 1997

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