Moses Vertiz v. The State of Texas--Appeal from 2nd District Court of Cherokee County (majority)

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NO. 12-11-00136-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS MOSES VERTIZ, APPELLANT § APPEAL FROM THE 2ND V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § CHEROKEE COUNTY, TEXAS MEMORANDUM OPINION Moses Vertiz appeals his conviction for unlawful possession of a firearm. In five issues, Appellant argues that the State impermissibly commented on his prior convictions during the voir dire examination of potential jurors, that the trial court erred in allowing testimony about extraneous acts, and that the jury verdict form should have listed the option of not guilty before the option of guilty. We affirm. BACKGROUND Appellant was involved in an altercation with Marcus Cruise along a roadway in January 2010 in Cherokee County. Cruise called the police and told them that Appellant pointed a shotgun at him. Several law enforcement officers responded to the call. Cherokee County Sheriff James Campbell also responded. As he approached the location of the altercation, Sheriff Campbell encountered a shotgun lying in the roadway. Other officers stopped Appellant approximately a mile from where the sheriff found the gun. In Appellant s vehicle, the officers found a shotgun shell of the same gauge as the rifle. They found another matching shell in the trunk of Appellant s vehicle, and they found three shells near the place where Cruise stated that the altercation took place. Appellant had been convicted of a felony offense within five years of the January 2010 incident, and a Cherokee County grand jury indicted him for the felony offense of unlawful possession of a firearm. 1 Appellant pleaded not guilty, and a jury trial was held. The jury found Appellant guilty as charged. The trial court assessed a sentence of imprisonment for ten years. This appeal followed. VOIR DIRE In his first and second issues, Appellant argues that the prosecutor s comments during the voir dire examination of the jury compromised his right to a fair trial. Specifically, he asserts that the prosecutor should not have mentioned that he had a prior felony conviction because he had agreed to stipulate to that fact. Furthermore, he argues that the prosecutor impermissibly hinted in a more general way that he had other prior convictions. With respect to the prior felony conviction, the prosecutor stated that it was an offense for a person to possess a firearm if he was within five years of his release from confinement or supervision. See TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011). The prosecutor did not state for which offense Appellant had a prior conviction. Appellant did not object to the prosecutor s statement of the law. Accordingly, this complaint is not preserved for our review. See TEX. R. APP. P. 33.1; Beltran v. State, 99 S.W.3d 807, 811-12 (Tex. App. Houston [14th Dist.] 2003, pet. ref'd) (appellant waived error by failing to object to voir dire comments). Appellant s argument fails even if the complaint had been preserved. While one court has held that proof of the precise offense is not relevant if a defendant has stipulated to a prior felony conviction, 2 the state still must prove all of the elements of the offense, including the prior offense. See, e.g., Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App. 2006) (jury must be charged on jurisdictional prior convictions even if defendant stipulates). Indeed, without mention of a prior felony, the jury might well wonder why Appellant was on trial for possessing a shotgun, something that is permitted generally to those not convicted of felony offenses. Because the State was required to prove that Appellant had a prior felony conviction, the State was not precluded from mentioning the prior conviction during voir dire. We overrule Appellant s first issue. With respect to the State s general comments about a prior criminal history, Appellant did raise an objection. However, the objection made at trial does not comport with the complaint raised on appeal. The district attorney stated, when describing the bifurcated nature of trials in Texas, that evidence about the offense is all that is admitted in the first phase of the trial. He went on to say that 1 See TEX. PENAL CODE ANN. § 46.04(a)(1) (West 2011). 2 See McIlroy v. State, 188 S.W.3d 789, 794 (Tex. App. Fort Worth 2006, no pet.). 2 if a Defendant has a prior record, bad reputation, or bad character, that type of evidence is not admissible at that time. He continued that if a defendant is found guilty, evidence of a prior record, reputation, or character is admissible at a sentencing hearing if the defendant is found guilty. Courts have permitted this kind of general statement about the nature of a trial. See, e.g., Phea v. State, 767 S.W.2d 263, 269 (Tex. App. Amarillo 1989, pet. ref d). There is the potential for abuse of this kind of statement, especially if it leaves little doubt as to whether the defendant on trial has a prior criminal record. The objection raised at trial, however, was that the prosecutor s statements were not necessary because [Appellant had] opted to go to the Court if we get to punishment. On appeal, Appellant argues that the prosecutor improperly informed the jury that he had a prior conviction and violated Article 36.01(a)(1), Texas Code of Criminal Procedure, which provides that enhancement portions of the indictment are not to be read until a hearing on punishment. Appellant did not object at trial on the basis that the prosecutor impermissibly informed the jury of his prior convictions. And the prosecutor did not inform the jury that Appellant had prior convictions other than the permissible statement about the prior conviction that was an element of the offense. Because the objection at trial does not comport with the issue raised on appeal, this issue is not preserved for our review. See TEX. R. APP. P. 33.1. We overrule Appellant s second issue. EXTRANEOUS OFFENSE In his third and fourth issues, Appellant argues that the trial court erred in allowing Marcus Cruise to testify that Appellant had stolen from his house and that he stayed at Cruise s house and stole nail guns. Background Marcus Cruise was an important witness for the State. He testified that Appellant pointed a shotgun at him. He was the only witness who testified that Appellant possessed the shotgun. Appellant s counsel cross examined Cruise about his relationship with Appellant. He asked him if Appellant had a relationship with Cruise s wife or if the two had been neighbors. Cruise answered no to each question. Counsel asked Cruise if Appellant just decided, unknown to you for some strange reason, to pull a gun on you and point it at you? Cruise responded that [h]e s the one the steal [sic] from my house. Counsel objected, and the trial court held a bench conference. The prosecutor stated that he had not gone into the prior dealings between the two men because of a motion in limine but that counsel had opened the door to their prior relationship by asking Cruise why Appellant might have 3 pointed a gun at him. Appellant s counsel objected to the court s permitting questions about prior bad acts because I don t believe the door has been opened by me. The trial court agreed with the State s position and overruled Appellant s objection. Later, counsel asked Cruise if he was pretty upset with [Appellant] . . . due to past problems. Cruise testified that he was. During redirect examination, the prosecutor asked Cruise about the question posed by defense counsel concerning past problems between the men. Specifically he asked him what those problems had been. Cruise testified that Appellant had stayed over [sic] my house and he steal [sic] nail guns. Appellant objected on the basis that Cruise lacked personal knowledge of any theft of nail guns. The trial court overruled the objection. Applicable Law An appellate court reviews a trial court s ruling on the admissibility of evidence for an abuse of discretion. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court does not abuse its discretion if its ruling is within a zone of reasonable disagreement. See id. Irrelevant evidence is inadmissible. See TEX. R. EVID. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. TEX. R. EVID. 404(b). Evidence of extraneous acts of misconduct may be admissible if the uncharged act is relevant to a material issue in the case, and the probative value of that evidence is not significantly outweighed by its prejudicial effect. See Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008). Analysis The answers given by Cruise about suspected criminal conduct by Appellant came in response to a line of questions by Appellant s attorney. Appellant s attorney had challenged Cruise s version of events. Specifically, he established through Cruise s testimony that a specific eyewitness would not be testifying to back up [his] version of what occurred. He then sought to establish that Appellant had a relationship with Cruise s wife Cruise denied that there was a relationship. He established that Cruise s family knew Appellant s family. And then he asked Cruise if it was true, that Appellant just decided, unknown to [him] for some strange reason, to pull a gun on you and point it at [him]. Cruise responded with a reference to a previous relationship between the two men that included Appellant s stealing from him. Later, counsel asked Cruise if he was pretty upset with Cruise due to past problems. Cruise testified that he was. On redirect, the State asked Cruise 4 what those problems were, and he responded that Appellant had stayed at his house and he steal nail guns. Appellant s counsel later got Cruise to concede that he did not see Appellant take anything from his house. Given the vague nature of Cruise s allegations, it can hardly be said that he established that Appellant had committed some kind of a crime at his house. Indeed, the past history of the two men was not necessarily relevant, and was not broached until Appellant s counsel asked why Appellant would have pointed a gun at Cruise. Cruise s statement did not directly answer the question, but his description of the history of difficulty between the men came only in response to counsel s questions about their relationship. Opening the door to otherwise inadmissible testimony commonly occurs when otherwise inadmissible evidence is necessary to rebut a false impression left with the jury. See, i.e., Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). This is a little different. Counsel asked, essentially, what the problem between the men was. Cruise gave him an answer. In this context, we cannot conclude that the trial court abused its discretion by allowing the answer to stand. We overrule Appellant s third and fourth issues. VERDICT FORMS In his fifth issue, Appellant argues that the trial court erred in overruling his request that the verdict form list the option of not guilty before the option of guilty. He argues that no harm would have accrued by granting his request and that it had the effect of shifting the burden of proof to him. As the court of criminal appeals has recognized, no statute requires the trial judge to submit a written verdict form with the jury charge. Jennings v. State, 302 S.W.3d 306, 309 (Tex. Crim. App. 2010) (citing Bolden v. State, 489 S.W.2d 300, 301 (Tex. Crim. App. 1972); Berghahn v. State, 683 S.W.2d 697, 699-701 (Tex. Crim. App. 1984) (Clinton, J., dissenting)). The court in Jennings did hold, however, that if a verdict form is submitted, it is evaluated as part of the court s charge to the jury. Jennings, 203 S.W.3d at 311. Furthermore, though the presiding judge disagreed, the court held that a verdict form must set out every guilty or not guilty option that is available to the jury if the trial court does include a verdict form with the jury charge. Id. at 310. The verdict form submitted to the jury in this case included both a guilty and a not guilty option for the jury. In addition, the court s charge explained that Appellant was presumed to be not guilty, that the jury could not find him guilty unless it found beyond a reasonable doubt that he 5 committed the offense, and that the presumption of innocence alone was sufficient to acquit him. Furthermore, the jury was instructed to deliberate and vote on a verdict and then to certify it using the attached form. Even without the instructions, we are not persuaded that the order of the possible verdicts influenced the jury to find Appellant guilty when it would not have otherwise done so. Furthermore, though many courts do list the not guilty verdict first, there is no requirement that it be done that way, and we presume the jury followed their instructions to deliberate, to hold the State to its burden of proof, and to only record a verdict once the jury agreed upon it. See Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996). Accordingly, we hold that the trial court s verdict form did not deprive Appellant of a fair trial by shifting the burden of proof to him. We overrule Appellant s fifth issue. DISPOSITION Having overruled Appellant s five issues, we affirm the judgment of the trial court. SAM GRIFFITH Justice Opinion delivered February 29, 2012. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 6 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT FEBRUARY 29, 2012 NO. 12-11-00136-CR MOSES VERTIZ, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 2nd Judicial District Court of Cherokee County, Texas. (Tr.Ct.No. 17,704) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. Sam Griffith, Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

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