Ivan Colbert Frazier v. The State of Texas--Appeal from 40th District Court of Ellis County

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IN THE

TENTH COURT OF APPEALS

 

No. 10-99-243-CR

 

IVAN COLBERT FRAZIER,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 40th District Court

Ellis County, Texas

Trial Court # 24,117-CR

O P I N I O N

A jury convicted Ivan Frazier of theft of property valued at less than $1500 and found that he had been previously convicted two or more times of theft. See Tex. Pen. Code Ann. 31.03(e)(4)(D) (Vernon Supp. 2000). The State enhanced the offense under Texas Penal Code section 12.42 with two prior felony convictions, and the jury sentenced Frazier to twenty years confinement. Frazier claims in four points that the trial court erred by: (1) coercing him to take the stand against the advice of his attorney; (2) overruling his motion to quash the indictment; (3) sustaining the State s relevance objection to the testimony of Municipal Judge Lee Johnson; and (4) sustaining the State s relevance objection to the testimony of Ennis Police Officer David Smith. He contends in a fifth point that the evidence is legally and factually insufficient to sustain a verdict of guilty. //

Frazier states that the court coerced him to testify against the advice of his attorney. Frazier initially indicated a desire to testify, but trial counsel advised against it. Trial counsel questioned Frazier about testifying, and he stated that he did not wish to testify. The court intervened at this point and the following conversation took place:

COURT: Mr. Frazier, I m sure you understand, but I just want to make it clear. The best example on about testifying or not testifying I ve ever thought of in my mind is going to a doctor and the doctor tells you, you need an operation and you say, well, doc, I don t know. I don t feel like I got what you say I got; but if you say so, I ll have the operation. But you know that when you go to the doctor, it s your choice whether or not you have that operation. It s not your doctor s choice. He s advising you to have the operation, but you don t have to take that advice. You have got to do what s best for you. Just because he advises you, that doesn t mean-

FRAZIER:Okay. I m going to testify in my own behalf, Judge.

COURT: You want to testify?

FRAZIER: I m going to.

COURT:And you understand that your attorney has advised you that in his opinion-

FRAZIER:Not to.

COURT:In his opinion you shouldn t, but you understand that it s your life?

FRAZIER: It s my life. I got to.

 

Frazier took the stand and denied committing the offense. He admitted to the two prior theft convictions and to being a drug addict who steals to support his habit. He also admitted stealing bed sheets from another store on the same date as the offense in question.

The Texas Constitution guarantees that the accused shall have the right to be heard by himself or by counsel. Tex. Const. art. I, 10. Article 38.08 of the Code of Criminal Procedure states that any defendant in a criminal action shall be permitted to testify in his own behalf. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon Supp. 2000). The United States Constitution provides that persons may not be compelled to testify against themselves. U.S. Const. amend. V. The constitutionally protected right not to testify may be waived if done so knowingly, voluntarily, and intelligently. Carroll v. State, 975 S.W.2d 630, 632 (Tex. Crim. App. 1998). Counsel may advise the defendant on the advantages and disadvantages of testifying, but the defendant must make the ultimate decision. Sapata v. State, 574 S.W.2d 770, 771 (Tex. Crim. App. 1978).

We hold that the trial court s comments in this case were not coercive and Frazier made a knowing, voluntary and intelligent waiver of his right not to testify. // We overrule Frazier s first point.

Frazier complains in his second point that the trial court erred in overruling his motion to quash the indictment that was based on a claim of double jeopardy. The indictment alleges that Frazier committed the offense of theft under $1500 with two prior theft offenses under Texas Penal Code section 31.03(e)(4)(D), which provides that theft is a state jail felony if the value of property stolen is less than $1500 and the defendant has twice been previously convicted of any grade of theft. Tex. Pen. Code Ann. 31.03(e)(4)(D)(Vernon Supp. 2000). This Court has held that section 31.03(e)(4)(D) creates a new felony offense, one element of which is two prior theft convictions. Williams v. State, 946 S.W.2d 886, 898, n.16 (Tex. App. Waco 1997, no pet.) (citing Gant v. State, 606 S.W.2d 867, 869) (Tex. Crim. App. 1980)). The language of section 31.03(e)(4)(D) is similar to the language of Texas Penal Code section 49.09(b). Section 49.09(b) states that a DWI is a third degree felony if the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated. Tex. Pen. Code Ann. 49.09 (b)(Vernon Supp. 2000). The Court of Criminal Appeals recently held that convictions used under section 49.09(b) do not have to occur in any particular order, nor do they have to arise from different transactions, to be used to elevate a subsequent offense to the level of a felony. Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). We believe the same reasoning should apply to section 31.03(e)(4)(D).

The State alleges that Frazier was previously convicted of two theft offenses on January 2, 1996. Frazier argues that the two prior theft offenses should count as only one offense and that in this case he should be convicted of a Class C misdemeanor offense. Frazier presents no authority on appeal as to why the two prior theft convictions should constitute only one conviction for purposes of section 31.03. We overrule point two.

Frazier claims in his third and fourth points that the trial court erroneously excluded the testimony of two defense witnesses based on relevance. Our adversarial system of justice assigns the question of relevance to the trial judge. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991, op. on reh g.). The trial judge relies on observations at trial and experience to decide if the proffered evidence has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. Tex. R. Evid. Rule 401; Montgomery, 810 S.W.2d at 391. We review the trial court s decision to admit or exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 391. We will not reverse so long as the trial court s decision is within the zone of reasonable disagreement. Id.

Frazier attempted to introduce testimony from Ennis Municipal Judge Lee Johnson and Ennis Police Officer David Smith. Frazier alleges that their testimony would show that because he was not able to assist Officer David Smith in another case, Officer Smith retaliated against Frazier and upgraded Frazier s offense from a Class C to a Class B misdemeanor. The court sustained the State s relevance objection and excluded the testimony. Frazier argues that the testimony of these two witnesses is relevant to the jury verdict as well as sentencing and should have been admitted.

We hold that the court did not abuse its discretion in refusing to admit the testimony of Judge Johnson and Officer Smith. Frazier was charged with theft under $1500, upgraded with two prior thefts. The change of his original charge from a Class C to a Class B misdemeanor is of no consequence. Accordingly, we overrule points three and four.

Frazier claims in point five that the evidence is legally and factually insufficient to support the verdict. We review a legal sufficiency challenge in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) (citingJackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). The factfinder is entitled to evaluate the credibility of witnesses and is entitled to believe all, some or none of the evidence presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). A jury verdict must stand unless it is found to be irrational or unsupported by some evidence. Moreno v. State, 755 S.W.2d 866, 868 (Tex. Crim. App. 1988) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789).

When we review a factual sufficiency challenge, we view all evidence in a neutral light and reverse if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 13 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)); Perkins v. State, 19 S.W.3d 854, 856 (Tex. App. Waco 2000, pet. ref d.). When conducting a Clewis factual sufficiency analysis, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury verdict. Johnson, 23 S.W.3d at 26 (citing Mata v. State, 939 S.W.2d 719, 729 (Tex. App. Waco 1997, no pet.) (Vance, J., concurring)); Perkins, 19 S.W.3d at 856. This review must defer to the jury verdict so as to avoid an appellate court substituting its judgment for that of the jury. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d at 126.

Officer Hart testified that he arrested a suspect that matched the description given by the store manager. Officer Hart also testified that the suspect was running away while carrying bed sheets under his jacket. The store manager of the General Dollar Store testified that the sheets found on Frazier s person were the same type sold by the General Dollar Store. She also made a positive identification of Frazier at the scene of the crime. However, she could not identify him in court. Frazier testified that he had stolen the bed sheets from a different store.

When we review the evidence adduced at trial in the light most favorable to the verdict, we conclude that there is legally sufficient evidence to support the verdict.

Considering all of the evidence in the record, there is also factually sufficient evidence to support Frazier s conviction. Although Frazier denies the allegations, we give great deference to the jury verdict and cannot say that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Accordingly, we overrule Frazier s fifth point of error.

We affirm the judgment of the trial court.

REX D. DAVIS

Chief Justice

 

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed December 20, 2000

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