THE FOURTEENTH COURT OF APPEALS: WEEK OF JULY 17-21, 2006
Today on Texas Law we showcase the Fourteenth Court of Appeals. This week the court dealt with procedural and substantive issues in both civil and criminal matters ranging from witness mis-identification of a defendant to whether failing to supply a warranty certificate to a customer can be a violation of the Texas Deceptive Trade Practices Act.
Tomorrow we’ll venture into the federal realm and visit the Fifth Circuit.CRIMINAL CASES:1. To preserve appeal, Defendant must object to court's substitution of counsel:
CARLOS DEWAYNE ROGERS, Appellant V. THE STATE OF
On Appeal from the 21st District Court;
Washington County, Texas
Conrad Day represented Carlos Dewayne Rogers during a trial in which the latter was convicted of first-degree felony injury to a child. Attorney Margaret Polansky represented defendant at the punishment phase. Defendant contended that the trial court’s sua sponte substitution of his appointed counsel violated his constitutional and statutory rights to qualified appointed counsel.
A trial court has no discretion to substitute appointed counsel sua sponte over counsel and defendant’s objection if the court’s only justification is its personal preference, practice, expertise, or feelings. This rule does not apply if a trial court merely substitutes a court-appointed attorney to represent a defendant at a particular hearing, the defendant agrees to the substitution, and the original attorney does not object. Further, if a defendant is displeased with his appointed counsel at any stage of the proceeding, the defendant must bring the matter to the court’s attention.
Here, the record did not reflect why one attorney represented the defendant at the pleading phase and another represented him at the sentencing phase. The record also is silent as to whether defendant or his original counsel objected to the substitution. A defendant must make a timely and specific objection to preserve error. Thus, defendant has failed to preserve his complaint for appellate review.
/s/ Adele Hedges & Chief Justice; Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Judgment rendered and Opinion filed July 20, 2006.2. Court of appeals jurisdiction to hear appeals from municipal court judgment requires county court to affirm municipal court judgment:
AARESH A. JAMSHEDJI, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 13; Harris County, Texas
Aaresh A. Jamshedji pled guilty to speeding and was placed on deferred disposition. Later, a municipal court revoked Mr. Jamshedji’s deferred disposition and adjudged him guilty of the charged offense. The municipal court fined Mr. Jamshedji $115, plus $85 in court costs. Mr. Jamshedji appealed the revocation of his deferred disposition to the county criminal court. The court determined it lacked jurisdiction and dismissed the appeal. Mr. Jamshedji then appealed to the Fourteenth Court of Appeals. This court also dismissed the appeal because it lacked jurisdiction.
Per statute, an appellant has a right to appeal a municipal court judgment to the court of appeals if two requirements are met: one, the fine assessed exceeds $100; and two, the judgment is affirmed by the county court.
Here, the county court did not affirm the municipal court judgment. Rather, it dismissed the appeal because it lacked jurisdiction. Thus, the court of appeals ruled it lacked jurisdiction to hear the appeal because the two statutory requirements were not satisfied.3. Defendant must demonstrate irreparable misidentification resulting from suggestive identification procedures:
MARSHALL EDWARD LEWIS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court; Harris County, Texas
Marshall Edward Lewis was convicted of aggravated robbery and sentenced to twenty-five years imprisonment. He appealed the conviction on two grounds: First, he claimed that the trial court erred in allowing an in-court identification. Second, the evidence was factually insufficient to sustain his conviction. The Fourteenth Court of Appeals affirmed the conviction.
Regarding Mr. Lewis’s first ground for appeal, he contended the trial court erred in allowing Catrena Young to identify him in court because her identification was based on a pretrial procedure that was impermissibly suggestive and because the jury was not informed that Ms. Young had an opportunity to identify Mr. Lewis at the first trial for this offense (which ended in a mistrial).
The two-step analysis to determine whether the trial court erroneously admitted in-court identification testimony evaluates: (1) whether the pretrial identification procedure was impermissibly suggestive; and (2) if so, whether the suggestive pretrial procedure gave rise to a very substantial likelihood of irreparable misidentification at trial.
The court ruled that the identification was not impermissibly suggestive because, prior to the identification, the witness was able to identify distinguishing marks on the defendant. The court further held that, in any event, the defendant cannot demonstrate harm because the jury viewed a videotape of the robbery and there were other witnesses who corroborated Ms. Young’s identification.
The court also ruled that the jury need not have been apprised that the witness was able to view the defendant at the first trial. The court gave two reasons: (1) the witness’s testimony at both trials was largely the same, and (2) the witness was unequivocal in her identifications at both trials.
As to Mr. Lewis’s second ground for appeal, the court held the evidence was factually sufficient to sustain his conviction. In reviewing the evidence, the appellate court will find that the evidence is factually insufficient if (1) the evidence is too weak to support a finding of guilt beyond a reasonable doubt, or (2) if the contradictory evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Deference is given to the jury’s finding.
The court held the description by Ms. Young of defendant’s distinguishing features, including facial tattoos, and the videotape of the incident was strong enough evidence to support a finding of guilt beyond a reasonable doubt. Further, the evidence which contradicted a finding of guilt beyond a reasonable doubt was overcome by witnesses explanations and refutations.
/s/ Wanda McKee Fowler, Justice
Judgment rendered and Memorandum Opinion filed July 20, 2006. Panel consists of Justices Hudson, Fowler, and Seymore.4. To claim self-defense, defendant must admit charged offenses at trial; To be considered fatal, a variance in sharging instrument must be material; To preserve appeal, party must pursue a sustained objection to an adverse ruling; The use of pre-arrest silence to impeach a defendant's credibility does not violate the Fifth Amendment of the United States Constitution:
GEORGE HERNANDEZ, JR. , Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 1; Harris County, Texas
George Hernandez, Jr. was convicted of assault on a family member. He was sentenced to 180 days in jail, probated for fifteen months, with ten days to be served in jail as a condition of the probation. Mr. Hernandez appealed, contending that (1) the evidence was legally insufficient to sustain his conviction, (2) the trial court erred in refusing to instruct the jury on the law of self-defense and on the law of defense of a third person, and (3) certain questions posed by the prosecutor violated his right to remain silent. The court affirmed.
Regarding Mr. Hernandez’s first claim, he claims that the evidence was factually insufficient because he was charged with assaulting Ms. Karen Secura, while the testimony at trial demonstrated that he assaulted Karen Segura. Thus, appellant raised a variance between the charging instrument and the proof at trial.
A variance will be considered fatal and render the evidence insufficient only when the variance is material. A variance is material if it (1) deprived the defendant of sufficient notice of the charges against him such that he could not prepare a proper defense, or (2) would subject the defendant to the risk of being twice prosecuted for the same crime. The burden of proving materiality rests with the defendant.
The court found the variance between the charging instrument and the proof at trial to be immaterial. First, the victim’s name is not an element of assault. Second, the defendant alleged neither that the charging instrument provided him with insufficient notice of the charges against him, nor that the variance subjected him to risk of being twice prosecuted for the same offense. Further, the court found stated that the entire record, not just the charging instrument, can be referred to in protecting against double jeopardy.
Mr. Hernandez’s second claim is that the trial court erred in refusing to instruct the jury on the law of self-defense and on the law of self-defense of a third person. A defendant is entitled to an instruction on self-defense whenever the evidence raises the issue, regardless of the strength of the evidence. However, a defendant must have first admitted that he or she committed the charged offense and the offered self-defense as a justification for the conduct. These rules apply as well regarding a jury instruction on self-defense of a third person.
Here, defendant did not assert that he admitted the charged offenses at trial. Thus, defendant is not entitled to jury instructions regarding self-defense.
Defendant’s third claim is that the trial court erred in permitting the State to ask him whether he had contacted the police regarding being attacked by the complainant. Defendant asserts this violates his right to silence under the Fifth Amendment of the United States Constitution.
The court dismissed this claim on both substantive and procedural grounds. On procedural grounds, the court ruled that this claim was not preserved for appeal because Mr. Hernandez objected to the prosecutor’s question but failed to pursue his objection to an adverse ruling. Without an adverse ruling, there are no grounds for appeal. On substantive grounds, the court ruled that the question did not violate the Fifth Amendment because it inquired about pre-arrest silence. The Supreme Court of the United States has held that the use of pre-arrest silence to impeach a defendant’s credibility does not violate the Fifth Amendment.
Judgment rendered and Opinion filed July 20, 2006. /s/ Adele Hedges Chief Justice; Panel consists of Chief Justice Hedges and Justices Yates and Guzman.CIVIL CASE:1. To sustain a Texas Deceptive Trade Practices Act claim of unconscionablity, plaintiff must show noticeable, flagrant, complete and unmitigated unfairness; To sustain claim of mental anguish, plaintiff must show more than mere worry, anxiety, vexation, embarrassment or anger:MOMENTUM MOTOR CARS, LTD. D/B/A MOMENTUM SAAB AND TAVAX, INC. D/B/A DISCOUNT CAR CLINIC
, Appellants V. KARL AND SUE HAUENSTEIN, Appellees
On Appeal from the 240th District Court
; Fort Bend County, Texas
Karl and Sue Hauenstein brought their vehicle to Momentum Motor Cars and Discount Car Clinic (Appellants) to repair a faulty transmission. Three transmissions later the Hauensteins sued Appellants for violations of the Texas Deceptive Trade Practices Act. A jury found that the Appellants engaged in false, misleading, or deceptive trade practices, knowingly engaged in unconscionable conduct and that the Hauensteins suffered damages for mental anguish. Appellants appealed, claiming that the evidence was legally insufficient to support the findings. The Fourteenth Court of Appeals affirmed the judgment regarding the deceptive trade practice and unconscionability violations, finding that the evidence presented at trial would enable reasonable and fair-minded people to reach such a verdict. However, the court removed the award of mental anguish damages.
The court ruled that by attempting to avoid honoring the applicable warranty the Appellants took advantage of their superior knowledge, ability, experience and capacity to a grossly unfair degree. This unconscionable conduct resulted in noticeable, flagrant, complete, and unmitigated unfairness to the Hauensteins.
Further, the court ruled that Appellants knowingly engaged in false, deceptive and unfair conduct when it failed to timely obtain replacement transmissions and to give the Hauensteins their warranty documents.
Finally, the court ruled that although the Hauensteins endured a substantial disruption in their daily routine as a result of Appellants conduct, the evidence failed to demonstrate a high degree of mental pain and distress that was more than mere worry, anxiety, vexation, embarrassment , or anger.
/s/ Adele Hedges; Chief Justice; Panel consists of Chief Justice Hedges and Justices Yates and Guzman.
Judgment rendered and Memorandum Opinion filed July 20, 2006.