DAVID C. MATTHEWS v. THE STATE OF TEXAS--Appeal from County Court of Lavaca County

NUMBER 13-06-494-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

DAVID C. MATTHEWS, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law of Lavaca County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides, and Vela
Memorandum Opinion by Justice Benavides

Appellant David Matthews, appearing pro se, appeals his conviction for failure to reduce his speed while passing an authorized emergency vehicle. Tex. Transp. Code Ann. 545.157 (Vernon Supp. 2006). After a jury trial, Matthews was fined $100.00, assessed court costs of $224.00, and assessed a transaction fee of $2.00. Matthews contends (1) that the prosecutor's closing argument conclusively demonstrates that he could not have slowed down to the speed required by law, and (2) that the prosecutor committed misconduct by prosecuting Matthews with knowledge of these "extenuating circumstances" surrounding his alleged traffic violation. We affirm.

I. Background

On March 19, 2006, Matthews was ticketed for failure to reduce his speed while passing an emergency vehicle. The traffic citation appears in the record, and it states that Matthews was traveling at a speed of sixty miles per hour in a seventy mile per hour zone while passing the emergency vehicle. (1)

Matthews contested the traffic citation in the Justice Court of Lavaca County. After a non-jury trial, the justice court found Matthews guilty and assessed a fine of $196.00. Matthews appealed that decision to the County Court of Lavaca County. There, he pleaded not guilty and requested a jury trial. A jury of six was empaneled, and the case was tried on August 28, 2006.

The jury charge and verdict appear in the clerk's record. The jury found Matthews guilty and assessed a fine of $100.00 plus court costs. The reporter's record, however, consists of only a small portion of the trial-specifically, it includes only the Lavaca County Attorney's closing argument.

The Lavaca County Attorney argued that the evidence showed that Matthews was the driver of a vehicle on public highway US 77 in Lavaca County. She argued that Matthews failed to reduce his speed while passing a state trooper's parked emergency vehicle. The state trooper, Corporal Matthew Southall, had his emergency lights on and was issuing a traffic ticket to another driver. The county attorney argued that according to Southall's testimony, Matthews was traveling at sixty miles per hour where the posted speed limit was seventy miles per hour.

The portion of the transcript that Matthews relies on for his appeal is as follows:

[The radar] hit Mr. Matthews. He said 60. He said 58 for the truck that was behind him. Common sense tells you Mr. Matthews is in front, truck's in back. Truck's going 58. Mr. Matthews has to be going faster than 58. Mr. Matthews wants you to believe that the fact - if the radar - here's Corporal Southall's car, if the radar hits him and he is already passing by it's not a legitimate offense. Yes, it is. And the corporal said it is. It is because there is no way, physically, when Mr. Matthews is approaching this stationary emergency vehicle, that he could have been going 50 miles an hour. That is what the corporal testified to. . . . Corporal said there's no way that Mr. Matthews was ever going 50 miles-an-hour when he was passing the stationary emergency vehicle. It's that simple.

 

After his conviction, Matthews filed a pro se brief with this Court. The State has not filed a brief.

II. Analysis

 

Matthews's issue apparently revolves around whether the county attorney admitted a significant fact during her closing argument. He asserts that the county attorney

[i]n her closing argument . . . pointed out that the vehicle following mine was traveling at 58 mph and therefore I could not have slowed down to 50 mph traveling through the emergency scene. . . . I submit that having been fully aware of these extenuating circumstances [the county attorney] still decided to proceed to trial which in turn means that this was not a good faith prosecution. In fact, deciding to proceed against an individual in full knowledge of their innocence constitutes malicious prosecution.

 

Matthews misconstrues the county attorney's closing argument. Nowhere in the transcript does the county attorney ever say that it was impossible for Matthews to slow down to an appropriate speed while passing the emergency vehicle. Rather, the county attorney was attempting to counter Matthews's argument that, although the radar registered him as traveling at sixty miles per hour after he had already passed the emergency vehicle, he was actually traveling fifty miles per hour while passing.

The county attorney merely stated that it was impossible that Matthews was traveling at fifty miles per hour when he passed the trooper. Her argument was that Matthews must have been going faster because the car immediately behind him was traveling at fifty-eight miles per hour when it passed. Nothing in this statement indicates that Matthews was unable to apply his brakes and reduce his speed, as Matthews contends. If such evidence was presented by Matthews at trial, we have no knowledge of it because the record is incomplete.

Although in a civil case, we may take as true facts stated in an appellant's brief that are not contradicted by the appellee, this is a criminal case. Tex. R. App. P. 38.1(f). Even so, we are not authorized to ignore the record on appeal and reverse a lower court based on statements by the appellant that are directly contradicted by the record. The record simply does not support Matthews's argument.

Moreover, the record does not reveal any objection to the allegedly inappropriate prosecution and closing argument; no motion for a mistrial related to prosecutorial misconduct was filed. Accordingly, Matthews's two complaints were not preserved for review. Tex. R. App. P. 33.1.

Finally, even had Matthews preserved error, his brief is entirely devoid of citations to legal authority. See Tex. R. App. P. 38.1(h). Although we recognize that pro se litigants are entitled to greater leniency, they are not exempt from the rules of procedure. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005). We cannot remedy deficiencies in a litigant's brief or provide an adequate record when none is presented by the appellant. Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App.-Dallas 2005, no pet.). Both of Matthews's issues are overruled.

III. Conclusion

Finding that Matthews has not presented anything for our review, we affirm the trial court's judgment of conviction.

 

__________________________

GINA M. BENAVIDES

Justice

 

Do not publish.

See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 23rd day of August, 2007.

1. Texas Transportation Code section 545.157(a) provides:

 

(a) On approaching a stationary authorized emergency vehicle using visual signals that meet the requirements of Sections 547.305 and 547.702, an operator, unless otherwise directed by a police officer, shall:

(1) vacate the lane closest to the emergency vehicle when driving on a
highway with two or more lanes traveling in the direction of the
emergency vehicle; or

 

(2) slow to a speed not to exceed:

(A) 20 miles per hour less than the posted speed limit when the
posted speed limit is 25 miles per hour or more; or

(B) five miles per hour when the posted speed limit is less than 25
miles per hour.