Madria, DuWayne v. The State of Texas--Appeal from 10th District Court of Galveston County

Affirmed and Opinion filed June 13, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00550-CR

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DUWAYNE MADRIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 00CR1855

O P I N I O N

Appellant, DuWayne Madria, was convicted by the trial court of the felony offense of assault on a public servant. He was sentenced to twenty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant raises three points of error: (1) the trial court denied appellant due process of law by assessing punishment; (2) the trial court erred in admitting evidence of enhancement offenses when the State failed to provide appellant with notice of State=s intent to prove enhancement offenses; and (3) the evidence was legally insufficient to support appellant=s conviction. We affirm.

I. Factual Background

At approximately 4:00 a.m. on October 21, 2000, while on patrol, Officer Norman Keith Desormeaux was driving by Mainland Memorial Cemetery when he observed an individual on the grounds. He stopped his patrol car, got out, and entered the cemetery. Desormeaux approached the individual, and recognized him as appellant. Desormeaux and appellant had a short conversation, during which Desormeaux briefly turned away from appellant. At that time, Desormeaux was struck on the right side of his face and jaw, causing him to lose his balance, and fall against a tombstone. The tombstone toppled over, pinning him to the ground. Desormeaux testified that appellant ran away when he threatened to release his canine partner. Unable to move the tombstone, Desormeaux radioed for help. Officer Michael Haynes was the first to arrive at the cemetery. Haynes helped Desormeaux move the tombstone off his legs and waited with him for emergency medical services to arrive. Appellant was charged by indictment with the felony offense of assault on a public servant. Appellant waived his right to a trial by jury and the case was tried before the judge.

II. Due Process

Appellant argues he was denied due process of law in the punishment phase of his trial when the court, rather than a jury, assessed his punishment. Appellant correctly states that there is no constitutional right to have a jury assess punishment. Laird v. State, 933 S.W.2d 707, 715 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d) (citing Allen v. State, 552 S.W.2d 843, 847 (Tex. Crim. App. 1977)). Rather, appellant asserts his denial of due process stems from his statutory right to have a jury assess punishment. Tex. Code Crim. Proc. Ann. art. 37.07, ' (2)(b) (Vernon Supp. 2002). Article 37.07, section 2 provides that the judge shall assess punishment except in cases when (1) the jury may recommend probation and the defendant files a sworn motion for probation before trial begins, and (2) the defendant so elects in writing before the commencement of voir dire examination of the jury. Id. If the defendant is found guilty, he may change his election of who will assess punishment with the consent of the attorney representing the State. Id. Under the statute, it is the judge=s responsibility to assess punishment unless the defendant requests in writing that the jury do so. Gibson v. State, 549 S.W.2d 741, 742 (Tex. Crim. App. 1977). A defendant=s failure to file an election to have the jury assess punishment leaves the court with the responsibility. Toney v. State, 586 S.W.2d 856, 858 (Tex. Crim. App. 1979); Pine v. State, 889 S.W.2d 625, 634 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d). The only question we ask here is whether appellant timely filed an election. The record shows no such election was made. By operation of the Code of Criminal Procedure, the judge was left with the responsibility of assessing punishment. By failing to submit such a request, the right to have a jury consider punishment was waived, and therefore, appellant=s first point of error is overruled.

 III. Notice of State=s Intent to Prove Enhancement Offenses

Appellant argues the trial court erred in admitting evidence of enhancement offenses at the punishment phase because he was not given proper notice of the State=s intent to prove enhancement offenses. The State must give notice of its intent to introduce evidence of an extraneous crime or bad act if the defendant has timely requested notice. Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(g) (Vernon Supp. 2002). Notice of intent to introduce evidence under Article 37.07, section 3 must be given in the same manner required by Rule 404(b) of the Texas Rules of Evidence. Id. The notice requirement mandates that reasonable notice be given in advance of trial. Tex. R. Evid. 404(b). Under Rule 404, however, the State=s duty to provide notice arises only upon timely request by the defendant. Patton v. State, 25 S.W.3d 387, 391 n.2 (Tex. App.CAustin 2000, pet. ref=d). The record demonstrates appellant did timely file a request for notice. Therefore, the State had a duty to provide notice.

The State included two enhancement paragraphs in appellant=s indictment. The paragraphs indicated the State=s intention to prove at punishment that appellant had been previously convicted of two felony offenses. The only purpose of an enhancement allegation in the indictment is to give a defendant notice of the prior conviction the State relies upon so a defendant can prepare a defense. Holt v. State, 899 S.W.2d 22, 24 (Tex. App.CTyler 1995, no writ); Coleman v. State, 577 S.W.2d 486, 488 (Tex. Crim. App. 1979). When the enhancement paragraphs provide the correct date of conviction, county, trial court, and cause numbers of prior convictions, appellant is provided with proper notice. Jones v. State, 755 S.W.2d 545, 548 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d). The indictment in the case at hand contained the appropriate elements and provided appellant with timely notice of the State=s intent to prove enhancement offenses. Appellant received and reviewed the indictment with counsel prior to trial. Appellant had spoken with counsel about the ramifications of prior convictions. The notice was reasonable and received well in advance of trial. Appellant was clearly aware of State=s intent to prove enhancement offenses and had ample opportunity to prepare a defense contesting the evidence. Appellant=s contention that the State failed to comply with notice requirements is without merit.

Appellant relies on Article 37.07, section 3(g) of the Texas Code of Criminal Procedure to object to the introduction of appellant=s Apen packets.@ Appellant is mistaken in his assertion that evidence of his prior offenses cannot be admitted at the punishment phase. The Code of Criminal Procedure clearly provides that after a finding of guilty, Aevidence may be offered by the state . . . as to any matter the court deems relevant to sentencing, including . . . the prior criminal record of the defendant . . . and . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by defendant.@ Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon Supp. 2002). Appellant=s second point of error is overruled.

IV. Sufficiency of the Evidence

Appellant contends the evidence was legally insufficient to support his conviction for assault on Desormeaux.

In reviewing the legal sufficiency of the evidence, we view the 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). On appeal, the same standard of review applies to both circumstantial and direct evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

The State must prove the accused was the perpetrator, and the accused stands innocent before the court until his identity as the perpetrator is proven beyond a reasonable doubt. Rice v. State, 801 S.W.2d 16, 17 (Tex. App.CFort Worth 1990, pet. ref=d). When we face a record of facts supporting conflicting inferences, we must presume in our review that the trier of fact resolved any such conflicts in favor of the prosecution and we must defer to that resolution. Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App 1990) (quoting Jackson, 443 U.S. at 326). In a bench trial, the trial judge, as the trier of fact, is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony, and may accept or reject any part or all of the testimony given by any witness. Castillo v. State, 771 S.W.2d 239, 241 (Tex. App.CSan Antonio 1989, no writ).

A person commits the crime of assault on a public servant if he: (1) intentionally, knowingly, or recklessly causes bodily injury; (2) to a person the actor knows to be a public servant; and (3) while the public servant is lawfully discharging an official duty. Tex. Pen. Code Ann. ' 22.01(b)(1) (Vernon Supp. 2002). The actor is presumed to have known the person was a public servant if the person was wearing a distinctive uniform or badge indicating employment as a public servant at the time. Tex. Pen. Code Ann. ' 22.01(d) (Vernon Supp. 2002).

The crux of appellant=s argument is that Desormeaux did not see who struck him. Appellant testified that he did not assault Desormeaux, and denied that he was the individual in the cemetery or that he had any involvement in the incident. Appellant testified that he was elsewhere when the incident occurred, but there was no evidence other than his testimony to support this assertion. Desormeaux testified that appellant and he were alone in the cemetery, and appellant was the one who struck him. Desormeaux was familiar with appellant from previous encounters, and recognized him immediately. Desormeaux was on duty, driving a patrol car, and dressed in a Hitchcock Police Department uniform that clearly identified him as an officer.

Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found beyond a reasonable doubt all essential elements of the offense of assault on a public servant. The evidence is legally sufficient to support appellant=s conviction. Therefore, appellant=s third point of error is overruled

V. Conclusion

We affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed June 13, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).