Lewis, James E. v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Opinion filed July 18, 2002

Affirmedand Opinion filed July 18, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00735-CR

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JAMES E. LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 867,453

O P I N I O N

Appellant James E. Lewis was charged by indictment with unauthorized use of a motor vehicle and found guilty by a jury. The trial court found two enhancement paragraphs true and assessed punishment at fifteen years confinement in the Texas Department of Criminal Justice, Institutional Division. Acting pro se, appellant urges eight issues on appeal. He contends that the trial court erred in denying the following: (1) a motion to suppress; (2) a motion to quash the indictment; (3) a motion to set aside the indictment; (4) a request for a Batson hearing; and (5) a pretrial discovery request. Appellant also contends a police officer who testified at his trial committed perjury, he was denied effective assistance of counsel, and his sentence exceeded the applicable sentencing guidelines. For the reasons stated below, we affirm.

 

FACTS

On January 27, 2001, Lucio Gonzales let his brother, Jose, borrow his 1984 Ford Bronco. On his way to work, Jose stopped at a convenience store. Someone stole the Bronco while Jose was inside the store. Jose contacted the police and reported the vehicle missing. Three days later, Officer Eddie Pavloski stopped the Bronco because it was missing its front and back license plates. Inside were appellant and two other persons. Appellant, the driver, told the officer that he had recently purchased the vehicle and was waiting for the plates to come in. Appellant did not have a bill of sale or temporary tags for the Bronco, and could not identify who sold him the vehicle. Officer Pavloski ran the Bronco s vehicle identification number through the police department s computer system and learned that the vehicle had been reported stolen several days earlier. After calling Lucio Gonzales and confirming that the vehicle had been stolen, Officer Pavloski arrested appellant. At trial, Lucio and Jose Gonzales both testified that they did not give appellant permission to drive the Bronco.

Although counsel had originally been appointed to represent appellant, the trial court permitted counsel to withdraw because appellant had filed a lawsuit against his counsel and others. Appellant appeared pro se at trial.

ISSUES ON APPEAL

Appellant raises the following issues on appeal: (1) the trial court erred in denying his motion to suppress; (2) the trial court erred in denying his motion to quash the indictment; (3) the trial court erred in denying his motion to set aside the indictment for violations of Texas Code of Criminal Procedure article 27.03; (4) the trial court erred in failing to grant a written pretrial request for a Batson hearing; (5) Officer Pavloski committed perjury during his testimony in appellant s trial; (6) the trial court erred in denying a pretrial discovery request; (7) appellant was denied effective assistance of counsel; and (8) appellant s sentence exceeded the applicable sentencing guidelines. We address each issue in turn.

1. The Motion to Suppress

In his first issue, appellant contends the trial court erred in denying his motion to suppress evidence because he was arrested without probable cause or an arrest warrant. However, appellant fails to identify any evidence that was seized as a result of his arrest; therefore, we have nothing to review. See Stiggers v. State, 506 S.W.2d 609, 611 (Tex. Crim. App. 1974) (holding that when no evidence obtained as a result of allegedly illegal search was introduced in evidence, no error is shown or presented for review).

To the extent appellant may be complaining that he was arrested without probable cause or a search warrant, we overrule appellant s issue. Officer Pavloski testified that he initially stopped appellant because the vehicle he was driving did not have a front or rear license plate. A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view, including a traffic offense. Ford v. State, 26 S.W.3d 669, 673 (Tex. App.CCorpus Christi 2000, no pet.); Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 1977). A person commits an offense if the person operates a passenger car or commercial motor vehicle that does not display license plates at the front and rear of the vehicle. Tex. Trans. Code Ann. ' 502.404(a) (Vernon 1999).

Thus, Officer Pavloski had probable cause to stop the Bronco and arrest appellant for failing to properly display license plates. See Ford, 26 S.W.3d at 674 (holding that stop of motor vehicle in which defendant was passenger was not unlawful when officers observed motorist driving vehicle without front license plate and while his license was suspended); Vela v. State, 871 S.W.2d 815, 819-20 (Tex. App.CHouston [14th Dist.] 1994, no pet.) (holding that officer had probable cause to arrest defendant for failing to properly display two license plates on vehicle).

Additionally, once Officer Pavloski confirmed that appellant was driving a vehicle that had been reported stolen three days earlier, he had probable cause to arrest him without a warrant for the offense of unauthorized use of a motor vehicle. See Kelly v. State, 721 S.W.2d 586, 587 (Tex. App. Houston [1st Dist.] 1986, no pet.) (holding that sufficient probable cause exists to make a stop of vehicle when police officer receives information from dispatch system that vehicle is stolen); see also Tex. Pen. Code Ann. ' 31.07 ( A person commits an offense if he intentionally or knowingly operates another s boat, airplane, or motor-propelled vehicle without the effective consent of the owner. ).

We therefore overrule appellant s first issue.

2. The Motion to Quash the Indictment

In his second issue, appellant contends the trial court erred in denying his motion to quash the indictment. In this section of his brief, appellant presents no discernable argument, but merely refers to Tex. Code Crim. Proc. Ann. art. 12.01 (Vernon Supp. 2001) and the Fourteenth Amendment in connection with the indictment and the two prior convictions referenced in the enhancement paragraphs of the indictment.

Appellant was charged with unauthorized use of a motor vehicle. An indictment for this offense may be presented within three years from the date of the commission of the offense. Tex. Code Crim. Proc. Ann. art. 12.01(6) (Vernon Supp. 2001). Appellant was arrested and charged on January 30, 2001. The grand jury returned the indictment less than one month later. Therefore, there was no violation of the statute of limitations.

To the extent appellant contends, as he did during the punishment phase of his trial, that the introduction of his prior convictions was in violation of a statute of limitations provision, appellant cites no authority for this position, and we are aware of none. Section 12.42 of the Texas Penal Code, which governs the enhancement of punishment for repeat and habitual felony offenders, contains no limitations period for the use of prior convictions. See Tex. Pen. Code Ann. ' 12.42 (Vernon Supp. 2002). Additionally, Texas courts have repeatedly held that the Texas habitual offender statute is constitutional. See McCardell v. State, 557 S.W.2d 289, 291 (Tex. Crim. App. 1977); Schultz v. State, 510 S.W.2d 940, 944 (Tex. Crim. App. 1974); Smallwood v. State, 827 S.W.2d 34, 36 (Tex. App.CHouston [1st Dist.] 1992, pet. ref d).

Appellant=s second issue is therefore overruled.

3. The Motion to Set Aside the Indictment

In his third issue, appellant appears to contend that the trial court erred in denying his motion to set aside the indictment for violations of Texas Code of Criminal Procedure article 27.03, which provides that an indictment may be set aside if certain identified irregularities occur in the grand jury proceeding in which the indictment is returned. See Tex. Code Crim. Proc. Ann. art. 27.03 (Vernon 1989). However, appellant failed to identify a specific violation of article 27.03 in either his pretrial motion or his appellate brief. Accordingly, appellant has failed to establish any error. See Ray v. State, 561 S.W.2d 480, 481-82 (Tex. Crim. App. 1977) (holding that defendant has burden of proving a violation of article 27.03 occurred).

Appellant s third issue is overruled.

4. The Motion for Batson Hearing

In his fourth issue, appellant contends the trial court erred in failing to grant his written pretrial request for a Batson[1] hearing. To be entitled to a Batson hearing, a defendant must present a prima facie case of purposeful discrimination by the State in its exercise of its peremptory strikes. Cantu v. State, 842 S.W.2d 667, 688 n.15 (Tex. Crim. App. 1992). A prima facie case is that minimum quantity of evidence necessary to support a rational inference that the allegation of purposeful discrimination is true. Held v. State, 948 S.W.2d 45, 48 (Tex. App.CHouston [14th Dist.] 1997, pet ref d). The defendant carries the burden of proof to establish a prima facie case. Muhammad v. State, 846 S.W.2d 432, 434 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d).

Appellant has failed to establish a prima facie case of purposeful discrimination by the prosecutor in the exercise of her peremptory challenges because the record is silent regarding the race of the venire members who were struck by the prosecutor. In the absence of any showing that the prosecutor actually struck any members of a minority group, much less that she did so with discriminatory intent, appellant has failed to show that he was entitled to a Batson hearing. See Dutton v. State, 836 S.W.2d 221, 224 (Tex. App.CHouston [14th Dist.] 1992, no pet.).[2]

5. Perjury

In his fifth issue, appellant contends Officer Pavloski committed perjury when he testified during appellant s trial. Appellant waived this contention because he failed to timely raise this issue in the trial court. See Tex. R. App. P. 33.1(a)(1)(A).

However, even if appellant had preserved this alleged error for review, his contention would be meritless. Officer Pavloski testified that the Bronco driven by appellant was missing both the front and back license plates when he stopped it. Appellant claims this portion of the officer s testimony constitutes perjury because Lucio Gonzales testified on cross-examination that the Bronco had a license plate when he recovered it after it was stolen. On redirect examination, however, Lucio clarified that the plates were missing when he recovered his Bronco and he had to purchase new ones. While appellant presents only selective portions of the testimony, an examination of the record in its entirety demonstrates that there is no conflict between the testimony of Officer Pavloski and that of Lucio Gonzales.

Accordingly, we overrule appellant s fifth issue.

6. The Pretrial Discovery Request

In his sixth issue, appellant contends that the trial judge erred in denying his pretrial discovery request. Appellant alleges that some of the information he requested, specifically relating to dispatch communications with Officer Pavloski, would show that the car had license plates or paper tags at the time of the arrest. In connection with this argument, appellant accuses the State of concealing and tampering with evidence favorable to his innocence and his assertion of no probable cause.

A defendant in a criminal case does not have a general right to discovery of evidence in the State=s possession. Gowan v. State, 927 S.W.2d 246, 249 (Tex. App.CFort Worth 1996, pet. ref d). Decisions involving pretrial discovery of evidence that are not exculpatory, mitigating, or privileged are within the discretion of the trial court. Id. Further, police reports, arrest reports, offense reports, and similar law enforcement documents are not subject to production. Id.

The United States Supreme Court has held that the State violates a defendant s due process rights when it suppresses evidence in its possession favorable to the defendant and the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence withheld by a prosecutor is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 682 (1985). Impeachment evidence, as well as exculpatory evidence, is included within the scope of the Brady rule. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. Thus, a due process violation has occurred if a prosecutor (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a probability of a different outcome. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).

Here, appellant fails to identify any evidence indicating that the State possessed any exculpatory or mitigating evidence, and we have found none in our review of the record. Further, the evidence appellant contends exists is not material to his guilt or punishment for the offense of unauthorized use of a motor vehicle, and thus would not create a probability of a different outcome.

Appellant s sixth issue is overruled.

7. Ineffective Assistance of Counsel

In his seventh issue, appellant contends he was denied the effective assistance of counsel. Specifically, appellant claims that the defense attorneys who practice in the 232nd District Court conspire with the trial judge in a scheme in which they force defendants to plead guilty before they are allowed into the public area of the courtroom. Appellant claims these defense attorneys also refuse to file any pretrial motions on behalf of their clients because the defense attorneys are seeking a high conviction rate.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show the following: (1) counsel s performance was deficient; and (2) this deficiency was so prejudicial that it rendered the trial unfair. Strickland v. Washington, 466 U.S. 668, 687 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995) (en banc). The first prong of the Strickland standard requires the defendant to show that counsel=s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Regarding the second prong, the defendant must show a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id.

A defendant carries the burden of proving his claim of ineffective assistance of counsel by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984) (en banc). A defendant must overcome the strong presumption that an attorney s actions were sound trial strategy. Strickland, 446 U.S. at 689. Furthermore, a claim of ineffective assistance of counsel must be firmly supported by the record. Thompson, 9 S.W.3d at 813; Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999).

Here, none of appellant=s claims of ineffectiveness are supported by the record. There is no evidence that defense attorneys conspire with the trial judge to deny defendants their various rights or that defense attorneys refuse to file pretrial motions for their clients. More importantly, there is no evidence that appellant himself suffered from any of these alleged deficiencies at the hands of a defense counsel. Appellant did not plead guilty, he filed numerous motions on his own behalf, and he represented himself at trial. As such, none of the alleged conspiracy tactics employed by defense lawyers impacted appellant=s trial. Therefore, appellant has failed to show he was denied effective assistance.

Furthermore, appellant may not complain about the effectiveness of his representation because a pro se defendant may not allege his own ineffectiveness. Rodriguez v. State, 763 S.W.2d 893, 896 (Tex. App.CSan Antonio 1988, pet. ref d).

Appellant s seventh issue is overruled.

 8. Appellant=s Sentence

In his eighth issue, appellant contends that his sentence exceeded the applicable sentencing guidelines. At trial, appellant was convicted of the offense of unauthorized use of a motor vehicle, which is a state jail felony. See Tex. Pen. Code Ann. ' 31.07(a). Appellant cites State v. Mancuso, 919 S.W.2d 86 (Tex. Crim. App. 1996) (en banc), for the holding that the defendants state jail felonies could not be enhanced under the habitual offender statute. However, Mancuso does not stand for a general proposition that the habitual offender statute does not apply to any defendants convicted of state jail felonies. In that case, the Texas Court of Criminal Appeals held that, under the law in effect at the time of the commission of the state jail felonies at issue, the only way a defendant=s punishment could be enhanced was if the state jail felony was committed under the circumstances described in a specific subsection of the statute. Id. at 90. Because that subsection did not apply to the cases on review, the Court held that the defendants= state jail felonies could not be enhanced. Id. Notably, Mancuso involved the interpretation of a prior version of the habitual offender statute that has since been amended to eliminate any confusion in its application. See id. at 90 n.7. Therefore, Mancuso is of no help to appellant.

Generally, the punishment range for a state jail felony is 180 days to two years. Tex. Pen. Code Ann. ' 12.35(a). However, if it is shown on the trial of a state jail felony that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony. Tex. Pen. Code Ann. ' 12.42(a)(2). The punishment range for a second degree felony is two to twenty years. Tex. Pen. Code Ann. ' 12.33(a).

The enhancement paragraphs of appellant s indictment alleged that appellant was previously convicted of felony theft on November 15, 1985, and felony unauthorized use of a motor vehicle on August 16, 1991. Following the State s presentation of evidence in support of the prior convictions, the trial court found the enhancement paragraphs true, and assessed punishment at fifteen years confinement. This punishment is within the range provided for a second degree felony. Therefore, appellant s eighth issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed July 18, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

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

[1] Batson v. Kentucky, 476 U.S. 79 (1986).

[2] We also note that, at the time the jury was seated, the trial judge asked appellant if he had any objections to the jury, and appellant replied that he had none.