Jeffrey Stuart Katz v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00248-CR

Jeffrey Stuart Katz,

Appellant

v.

The State of Texas,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 30259CR

MEMORANDUM Opinion

Katz appeals his conviction for state-jail-felony evading arrest or detention while using a vehicle. See Tex. Penal Code Ann. 38.04 (Vernon 2003). We affirm.

Sufficiency of the Evidence. In Katz s first two issues, he contends that the evidence that he intended to evade arrest or detention was insufficient.

The Texas Penal Code creates the offense of evading arrest or detention in the following terms: A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him. Tex. Penal Code Ann. 38.04(a).

Legal Sufficiency. In Katz s first issue, he contends that the evidence was legally insufficient.

When we review the evidence under the legal sufficiency standard set out in Jackson v. Virginia, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); accord Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Wilhoit v. State, 638 S.W.2d 489, 494 (Tex. Crim. App. 1982).

The State points primarily to the following evidence. Officer Robert Daniel, a Waxahachie police officer, attempted to stop Katz for speeding on Interstate 35. See Tex. Transp. Code Ann. 545.351(a), 545.352(a) (Vernon 1999). Officer Daniel, using his flashing lights, siren, and public-address system, signaled for Katz to stop. Officer Daniel testified that Katz continued to speed down the access road for about four and a half minutes and about three or four miles before stopping at a gas station. Officer Daniel stopped Katz during the middle of the afternoon, when traffic was not heavy on the access road. Katz passed [n]umerous safe places to pull off of the road and stop, including the shoulder and cross streets. (9 R.R. at 18.) When Officer Daniel approached Katz s truck, Katz refused to get out. Katz told Officer Daniel that Katz was not subject to the laws of Texas. Katz did not have a driver s license. See Tex. Transp. Code Ann. 521.025(a)-(c) (Vernon 2007). Katz had outstanding warrants for his arrest for traffic offenses. Katz testified that a police officer could not legally stop him for speeding.[1]

Viewing the evidence in the light most favorable to the prosecution, we hold that a rational juror could have believed beyond a reasonable doubt that Katz intended to evade arrest or detention. The evidence that Katz did so was legally sufficient. We overrule Katz s first issue.

Factual Sufficiency. In Katz s second issue, he contends that the evidence was factually insufficient.

Evidence may be factually insufficient if: 1) it is so weak that the verdict is clearly wrong and manifestly unjust or 2) the adverse finding is against the great weight and preponderance of the available evidence, considering conflicting evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (internal quotation marks omitted)); see Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); see also Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury s finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Berry at 854 (citing Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003)); accord Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). [A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury s verdict before it is justified in reversing for factually insufficient evidence. Watson at 417 (emphasis in orig.).

Such a factual sufficiency review requires the reviewing court to consider all of the evidence. Berry, 233 S.W.3d at 854 (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007)); accord Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). [T]he evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); accord Johnson, 23 S.W.3d at 7; Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). The factual-sufficiency standard of review permits the reviewing court to substitute its judgment for that of the jury only to a very limited degree. Marshall at 625 (quoting Watson, 204 S.W.3d at 415, 417). [F]actual-sufficiency review requires [a] reviewing court to afford due deference to a jury s determinations. Id. (quoting Johnson at 9). That requirement meant to assure that Texas constitutional right to trial by jury remain inviolate[, Tex. Const. art. I, 15,] requires a direct-appeal court to exercise its factual-sufficiency jurisdiction with deferential standards of review to jury verdicts. Roberts v. State, 221 S.W.3d 659, 664 n.7 (Tex. Crim. App. 2007) (quoting Clewis at 135). Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury s verdict required before a reversal can occur. Roberts, 220 S.W.3d at 524 (citing Watson at 417 and Cain v. State, 958 S.W.2d 404, 407, 410 (Tex. Crim. App. 1997)).

Katz points primarily to the following evidence. Katz testified that he was fleeing Hurricane Rita when Officer Daniel stopped him. As soon as Officer Daniel turned on his emergency lights, Katz turned on his right-hand turn signal and slowed down to sixty miles per hour. There was no improved road shoulder from that point until Katz stopped his truck. Katz testified that he wanted to get to a public place with lots of witnesses before stopping. Katz testified that police officers have a license to kill, and that he feared that they could just shoot [him] and then take everything [he] got. (9 R.R. at 60, 61.) Katz did not speed up during the time Officer Daniel was following Katz. Katz twice waves at Officer Daniel; Katz understood that as signals that he intended to stop. Katz testified that there was no safe place to stop before he did stop. Katz testified that he did not tell Officer Daniel that no Texas laws applied to Katz, but that those concerning the maximum lawful speed for commercial motor vehicles, truck tractors, truck semi trailers and motor vehicles engaged in the business of transporting passengers for compensation or hire did not justify the stop, since Katz was not transporting passengers. (Id. at 71.)

Considering the evidence in a neutral light, we hold that the evidence is not weak so that the verdict is clearly wrong or manifestly unjust, and that the verdict is not against the great weight and preponderance of the evidence. The evidence was factually sufficient. We overrule Katz s second issue.

Recusal. In Katz s third issue, he contends that the trial-court judge and the presiding judge of the administrative judicial region erred in not holding hearings on Katz s motions to recuse. See Tex. Gov t Code Ann. 74.041(1)-(2), 74.042(a)-(b) (Vernon 2005).

Katz s complaints concern his Demand to Disqualify the Visiting Judge, which Katz calls his first motion to disqualify; and his Judicial Notice of Denial of Due Process by Davis, Et[] Al. by Affidavit, which Katz calls his second motion to disqualify.

Texas Rule of Appellate Procedure 33.1(a) provides:

As a prerequisite to presenting a complaint for appellate review, the record must show that:

(1) the complaint was made to the trial court by a timely request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Tex. R. App. P. 33.1(a). Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only[,] . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a). Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (quoting Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004)).

Texas Rule of Civil Procedure 18a provides: At least ten days before the date set for trial or other hearing in any trial court,

any party may file with the clerk of the court a motion stating grounds 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 before whom the case is pending 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.

Tex. R. Civ. P. 18a. The procedures for recusal of judges set out in Rule 18a of the Texas Rules of Civil Procedure apply in criminal cases. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. proceeding); accord Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993).

Verification is [a] formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statements in [a] document. Serrano v. Ryan s Crossing Apts., 241 S.W.3d 560, 564 (Tex. App. El Paso 2007, no pet.) (quoting Black s Law Dictionary 1556 (7th ed. 1999)); see State v. LeBlanc, Inc., 399 S.W.2d 919, 922 (Tex. Civ. App. Houston [1st Dist.] 1966, no writ).

Failure to comply with the provision[s] of Rule 18a bars complaint on appeal of the denial of a separate hearing before another judge on the motion to recuse. DeBlanc v. State, 799 S.W.2d 701, 705 (Tex. Crim. App. 1990) (ten days notice); see Bruno v. State, 916 S.W.2d 4, 8 (Tex. App. Houston [1st Dist.] 1995, pet. ref d) (verification); Vargas v. State, 883 S.W.2d 256, 258-59 (Tex. App. Corpus Christi 1994, pet. ref d) (verification).

[A] trial court is free to disregard any pro se motions presented by a defendant who is represented by counsel. Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007).

The trial court permitted Katz s prior appointed counsel to withdraw in February, 2006. On March 5, 2007, Katz filed his first motion to disqualify. On March 8, the judge of the administrative region determined that Katz s motion d[id] not provide specific allegations necessary to warrant a hearing, and denied the motion. (5 C.R. at 604.) On March 13, the trial judge granted Katz s request for appointed counsel, appointed counsel for Katz, and continued trial to March 26; the trial court ultimately continued trial until July 2, 2007. On March 15, 2007, Katz filed his second motion to disqualify. Katz remained represented by appointed counsel and on bail through trial and on appeal.

The State argues that Katz s motions were not verified and may be disregarded.[2] Katz generally refers to his motions as properly verified, but does not further argue the matter. (E.g., Br. at 30.)

1. As to Katz s first motion to recuse, we agree with the State that the motion is not verified. The closest we see to verification are the following. First, the motion concludes with what Katz calls a Jurat Acknowledgement, in which a notary public states that Katz did make, sign and seal, th[e] DEMAND TO DISQUALIFY THE VISITING JUDGE before the notary. (4 C.R. at 519.) Katz does not, however, swear to the truth of the statements in his motion. Next, attached as an appendix to Katz s motion, is what Charles Torello calls his Verified Notice of Facts. The notice concludes with the following:

I, Charles Torello, a man consistent [sic] Section 1746 of Title 28 of the United States Code and Article 1 Section 5 of The Constitution of The State of Texas adopted on or about February 15th, A.D. 1876 affirm under the pains and penalties of perjury under the laws of The United States of America that the previous sixteen statements are true and correct. Executed this 3rd day of July in the Year of our LORD 2007 at the city of Garland, within the boundaries of The County of Dallas, located within the boundaries of The State of Texas, located within the boundaries of the perpetual Union styled The United States of America

over Torello s signature. (4 R.R. at 545); see 28 U.S.C. 1746 (2000); Tex. Const. art. I, 5. Torello s notice, however, is not sworn to before a notary public.

The lack of verification of Katz s first motion to recuse bars complaint concerning the lack of a live hearing on the motion.

2. As to Katz s second motion to recuse, we agree with the State that the trial judge and the judge of the administrative judicial region could properly have disregarded the motion, which Katz filed pro se at a time when Katz was represented by appointed counsel. Katz served and filed the motion two days after the trial judge had appointed counsel for Katz. On that basis, then, the judges would not have erred in not holding a hearing on Katz s motion.

Conclusion. Katz does not present for appellate review a complaint of the judges not holding a hearing on or forwarding Katz s recusal motions. We overrule Katz s third issue.

Reporter s Record. In Katz s fourth issue, he contends that the court reporter erred in not making a record of a hearing.

[W]hile it is error when a court reporter does not transcribe all trial proceedings into the record, this error is waived if not objected to. Brossette v. State, 99 S.W.3d 277, 285 (Tex. App. Texarkana 2003, pet. ref d, untimely filed); see Tex. R. App. P. 33.1(a); Langford v. State, 129 S.W.3d 138, 139 (Tex. App. Dallas 2003, no pet.).

Katz does not point in the record to any complaint concerning the court reporter s not making a record of any live hearing, and we see no such complaint. Katz forfeited his fourth issue. We overrule Katz s fourth issue.

Conclusion. Having overruled Katz s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance dissents from the judgment with a note) *

Affirmed

Opinion delivered and filed July 2, 2008

Do not publish

[CR25]

* (The evidence in this case is a far cry from that necessary to support a conviction under section 38.04. See, e.g., Mayfield v. State, 219 S.W.3d 538, 539-41 (Tex. App. Texarkana 2007, no pet.); Hobyl v. State, 152 S.W.3d 624, 625-28 (Tex. App. Houston [1st Dist.] 2004), pet. dism d, 193 S.W.3d 903 (Tex. Crim. App. 2006). I would hold that the evidence is legally insufficient, reverse the judgment, and render a judgment of acquittal. Under Jackson v. Virginia, courts of appeals assessing legal sufficiency are to consider all the evidence in the light most favorable to the verdict. . . . Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007) (emphasis added). The majority s legal sufficiency analysis only views some of the evidence only the evidence supporting the conviction; by failing to review and consider all of the evidence, it is divorced from the context of the case and thus fails as a legal sufficiency review. From my review of all the evidence, Katz lacked the intent to flee from the officer, and a rational juror could not reasonably infer Katz s intent to flee from the evidence. See id. at 15-16. Even when viewed in the light most favorable to the verdict, the evidence indisputably shows that Katz s only intent was to stop at the first safe and public place. The videotape and the officer s testimony show that, upon the officer s activation of his lights, Katz immediately turned on his blinker and took the first exit off the interstate about a quarter-mile later. Katz slowed down on the service road and never sped up; he continued on the service road for three to four miles, waving his hand out the window to acknowledge the officers each time the patrol car s siren was sounded. The officer said that there was no improved shoulder on the service road, that Katz stopped at the first public place on the service road, and that Katz told him that he was fleeing Hurricane Rita and had all of his belongings with him in his vehicle. Katz, a self-described ardent constitutionalist and odd duck, testified that he didn t stop on the interstate s shoulder because it was dangerous and he didn t want to slow the heavy traffic and interfere with the hurricane evacuation, and that he wanted to stop in the first safe, public place because he feared law enforcement and because all of his belongings were in his vehicle. As a further alternative, I would hold that the administrative judge should have held or assigned a judge to hold a hearing on the first motion to recuse. I would therefore abate the appeal for the hearing and then proceed accordingly. Crosson v. State, 36 S.W.3d 642, 647-48 (Tex. App. Houston [1st Dist.] 2000, order); Sanchez v. State, 926 S.W.2d 391, 394 (Tex. App. El Paso 1996, pet. ref d). The abatement order should also require the trial judge to settle the issue concerning the completeness of the reporter s record. Killough v. State, 229 S.W.3d 343, 343 (Tex. App. Waco 2007, order); Tex. R. App. P. 13.1 ( The official court reporter or court recorder must: (a) unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings; . . . . ) (Emphasis added).)

[1] Katz argues that we should consider as evidence contrary to the verdict what Katz calls the trial court s bias against him. But the trial court s comments do not constitute evidence.

[2] The State argues, first, that Katz s motions were untimely. Katz filed his first motion less than ten days before the trial court s actions on March 13, 2007. Katz filed his second motion more than ten days before the next trial setting, on March 26. We assume without deciding that Katz s motions timely provided ten days notice.