Everardo Barrera v. State

Opinion Issued April 1, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-00102-CR EVERARDO BARRERA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 42,752 MEMORANDUM OPINION A jury found appellant, Everardo Barrera, guilty of the offense of possession of less than 2,000 but more than 50 pounds of marihuana. The trial court assessed punishment at 20 years’ confinement. In seven points of error, appellant contends that there is insufficient evidence to sustain his conviction; that the trial court erred in denying his motion to dismiss on double jeopardy grounds, failing to submit him to a psychiatric examination, failing to conduct a Jackson v. Denno hearing before admitting his confession, failing to submit a jury charge on the issue of entrapment, submitting the required mental states in the jury charge in the disjunctive when the indictment alleged the mental states in the conjunctive; and that he was denied effective assistance of counsel. We affirm. Background On April 9, 2002, as part of an undercover narcotics operation, Pasadena Police Detective Leland Oliver met appellant at a TGI Friday’s restaurant regarding the purchase of 600 pounds of marihuana. Oliver was accompanied by a confidential informant, who was driving a Mustang. At the restaurant, Oliver and appellant negotiated the deal while the confidential informant stood by. Oliver agreed to pay $350 a pound for the marihuana. Appellant agreed to take the confidential informant to another location and load 400 pounds of marihuana into his Mustang. Later, the confidential informant and appellant were to meet Oliver so he could inspect the 400 pounds of marihuana and pay for 600 pounds. The additional 200 pounds were to be picked up at a later date. After the final arrangements were made, the confidential informant and appellant went to a house on F.M. 521. Oliver followed appellant, but did not go to the house; instead, he stopped at a nearby gas station to wait. Other surveillance officers followed appellant and the confidential informant to the house on F.M. 521. Pasadena Police Officer Dan O’Sullivan testified that he followed the confidential informant and appellant to the house and watched as appellant unlocked the gate to a residence. He saw the confidential informant and appellant remain at the residence for approximately 15 minutes before both men left in the Mustang. Thirty minutes after the Mustang left, O’Sullivan approached the residence and met up with other officers already on the scene. After the home’s owner consented to a search, officers recovered additional marihuana, a 50-pound scale, Saran wrap, and a marihuana press. Appellant was apprehended after arriving at the gas station with the confidential informant; officers recovered approximately 400 pounds of marihuana from the Mustang. After his arrest, appellant signed a statement confessing to the possession of 600 pounds of marihuana. At trial, appellant denied that he had confessed and claimed that the signature on the statement was his. A chemist for the Pasadena Police Department testified that the total usable weight of marihuana recovered from the residence and the Mustang was approximately 574.1 pounds. On November 25, 2002, at a pretrial hearing, Judge Caldwell, a retired judge handling the docket for Judge Hardin at that time, appointed Joe Silvas as stand-by counsel because appellant insisted on representing himself. At another pretrial hearing in front of Judge Hardin, appellant further insisted that he would represent himself, that he did not need Silvas, and that Silvas was not going to be his consultant. On January 13, 2003, at a motion to quash hearing, Judge Gayle, the retired trial court judge then assigned to hear Judge Hardin’s docket, warned appellant of the hazards of representing himself. During voir dire, the court again warned appellant of the disadvantages of representing himself and offered to appoint an attorney to represent him. Appellant refused the offer of appointed counsel and insisted on representing himself. Prior to trial, appellant filed three motions to dismiss on double jeopardy grounds. Appellant claimed that he had already been prosecuted for the offense in federal court. At a pre-trial hearing, Silvas explained to the trial court that, in 2002, appellant was charged with an offense in the United States District Court for the Southern District of Texas. The federal complaint indicated that on April 9, 2002, the date of the instant offense, appellant possessed marihuana with intent to deliver. On April 17, 2002, a probable cause hearing was held on the federal complaint, at which the federal magistrate determined that there was probable cause to hold appellant. However, on May 8, 2002, the federal complaint was dismissed without prejudice because the confidential informant used in that case was unavailable. The trial court in this case never ruled on appellant’s double jeopardy motions. Discussion Sufficiency of the Evidence In his first point of error, appellant contends that the evidence is legally and factually insufficient to support his conviction for intentionally and knowingly possessing marihuana. However, appellant fails to develop his legal argument with citations to authority, or to relate the law to the facts with appropriate citations to the record. Texas Rule of Appellate Procedure 38 provides that a brief to this Court shall contain, among other things, a concise, nonargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contentions made with appropriate citations to authorities and the record. Tex. R. App. P. 38.1. Rule 38.1 is not satisfied by merely uttering brief, conclusory statements, unsupported by any legal citation. See Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex. App.—Amarillo 1998, no pet.). Moreover, citations to authorities alone are not sufficient to comprise an argument that suffices under Rule 38.1. An appellant’s brief also must argue to the court the law and the facts that weigh in the party’s favor. See State v. Gonzalez, 855 S.W.2d 692, 697 (Tex. Crim. App. 1993); McFarland v. Sanders, 932 S.W.2d 640, 647 (Tex. App.—Tyler 1996, no writ). Here, in addition to his two sentences briefing the standards of review for legal and factual sufficiency, appellant’s argument as to his first point of error is set forth in its entirety as follows: Although the indictment charged Appellant with actual possession of marihuana, the evidence consisted of testimony of an undercover agent and surveillance police officers. Detective Oliver admitted that he himself set out to purchase marihuana and ultimately arranged to have Appellant bring him several hundred pounds. The testimony did not make it clear how it was surveillance police came to a farm house occupied by other gentlemen, who fled when police rushed the house. The confidential informant eventually arrived, himself driving the vehicle with the controlled substance. When appellant does cite to the record, he wholly fails to discuss the facts in light of legal authority to uphold his burden of demonstrating to this court that the trial court committed error. Appellant fails to cite any authority or provide any legal analysis in support of his contentions. Under these circumstances, we conclude that he has failed to adequately brief this point of error. See Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003); McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001). It is not this court’s burden to formulate appellant’s argument. See Tex. R. App. P. 38.1(h). Because appellant has failed to discuss the law and the facts and to make cogent arguments concerning how we should decide the issue, appellant has waived the issue on appeal. We overrule appellant’s first point of error. Double Jeopardy In his second point of error, appellant contends that the trial court erred in denying his motion to dismiss the indictment on double jeopardy grounds. Appellant argues that he was prosecuted in both federal and state court for the same offense through identical witnesses. He claims that “the absence of a witness did not warrant a dismissal of [the federal complaint] with the idea [of] trying him in the future.” Three times before trial, appellant filed motions to dismiss on double jeopardy grounds; none were ruled on. However, appellant’s stand-by counsel filed a copy of the federal order on the motion to dismiss filed in federal district court, which indicated that the federal charges and complaint against appellant were dismissed because the confidential informant was unavailable. Stand-by counsel explained to the trial court that the federal complaint had been filed, a probable cause hearing had been held, the charge had been dismissed, and appellant had subsequently been indicted in this action in Brazoria County district court for the instant offense. The Double Jeopardy Clause in the Fifth Amendment, which is applicable to the states under the Fourteenth Amendment, provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amends. V, XIV. It protects against a second prosecution for the same offense after acquittal or conviction, and against multiple punishments for the same offense. United States v. Dixon, 509 U.S. 688, 694-96, 113 S. Ct. 2849, 2855-56 (1993). Texas’s double jeopardy provision is conceptually identical to the federal provision and provides no greater protection than the federal constitution. Ex parte Davis, 893 S.W.2d 252, 256 (Tex. App.—Austin 1995), aff’d, 957 S.W.2d 9 (Tex. Crim. App. 1997). In the trial court, a defendant bears the burden of establishing a double jeopardy violation. State v. Garza, 908 S.W.2d 60, 61 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). This requires that the defendant present evidence to support his allegation of former jeopardy. Shaffer v. State, 477 S.W.2d 873, 875 (Tex. Crim. App. 1971). Here, appellant failed to develop the record or present evidence establishing double jeopardy. While the record indicates that appellant was charged with the offense of possession with intent to deliver marihuana in the United States District Court for the Southern District of Texas, which was subsequently dismissed without prejudice due to an unavailable confidential informant, it is unclear if or how the federal charge relates to the present charge. Most importantly, appellant has presented no evidence that he was either acquitted or convicted in federal district court for the same offense, as required to substantiate a double jeopardy claim. See Dixon, 509 U.S. at 694-96, 113 S. Ct. at 2856. At most, appellant has shown that he was indicted in federal court for a federal offense based on events that occurred on the same day as the instant offense and that such charge was dismissed without an acquittal or conviction and without prejudice. Appellant has failed to carry his burden on his double jeopardy claim. We overrule appellant’s second point of error. Psychiatric Examination In his third point of error, appellant contends that the trial court erred in failing to require him to submit to a psychiatric examination before trial. The standard of review on appeal is whether the trial court abused its discretion in failing to conduct a competency hearing. See Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 46.02 § 1A(b) (Vernon Supp. 2004). A person is incompetent to stand trial if he does not have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or if he does not have a rational and factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02, §1A(a)(1), (2). A trial court is required to conduct a competency inquiry pursuant to article 46.02, section 2, if evidence raising a bona fide doubt regarding the defendant’s competence is brought to the court’s attention from any source. Tex. Code Crim. Proc. Ann. art. 46.02, § 2; McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003). Evidence is usually sufficient to raise a bona fide doubt if it shows recent severe mental illness, at least moderate retardation, or truly bizarre acts by the defendant. McDaniel, 98 S.W.3d at 710 (quoting Alcott v. State, 51 S.W.3d 596, 602 (Tex. Crim. App. 2001)). Appellant asserts that his actions during trial, such as rambling incoherently, asking the judge for his name, and failing to present a defense, indicate his incompetency. We disagree. In Moore v. State, 999 S.W.2d 385 (Tex. Crim. App. 1999), the Court of Criminal Appeals held that disruptive behavior is not, by itself, probative of incompetence. Id. at 395. In that case, the court held that the defendant, who made several inappropriate comments and outbursts during trial and had a history of hospitalizations for depression, did not establish a bona fide doubt as to his competency to stand trial. Id. at 396-97; see also Smith v. State, 51 S.W.3d 806, 812 (Tex. App.—Texarkana 2001, no pet.) (defendant’s actions of removing his clothes, lying on floor, and refusing to move did not constitute evidence raising bona fide doubt as to his competency). Here, appellant was disruptive in court but coherently argued a philosophy consistent with “Republic of Texas” proponents. He interacted with the judge on numerous occasions, expressed his understanding of his right to self-representation, and even raised a double jeopardy motion. The evidence does not raise a bona fide doubt as to whether he was able to communicate with his attorney or understand the proceedings against him; he just chose not to communicate with stand-by counsel. The trial court did not abuse its discretion in failing to conduct a competency hearing sua sponte. We overrule appellant’s third point of error. Admission of Statement In his fourth point of error, appellant claims that the trial court erred in failing to conduct a Jackson v. Denno hearing before the admission into evidence of a statement which he challenged as involuntary. 378 U.S. at 380, 84 S. Ct. at 1783. A Jackson v. Denno hearing is required under Texas Code of Criminal Procedure article 38.22, section 6, if a defendant moves to suppress a statement on the ground of involuntariness. Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon Supp. 2004). If the defendant objects to the admissibility of his statement on the grounds of voluntariness, the court must conduct a hearing, outside of the presence of the jury, to determine its admissibility. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). Here, appellant fails to cite to any place in the record where the trial court denied his request for a Jackson v. Denno hearing. More significantly, appellant did not object to the admission of his statement on the basis of its voluntariness. Rather, he objected on the basis of identity, by claiming he was not the person who made the statement. Because appellant’s complaint on appeal does not comport with his trial objection, he has failed to preserve error. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003). Accordingly, we overrule appellant’s fourth point. Entrapment In his fifth point of error, appellant contends that the trial court erred in failing to sua sponte submit a jury charge on the issue of entrapment. Entrapment is a defensive issue. See Geiberg v. State, 984 S.W.2d 245, 248 n.2 (Tex. Crim. App. 1998). To preserve error on a defensive charge, an appellant must object or make a specific request. Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996). Our review of the record reveals that appellant did not object or request a charge on entrapment. Therefore, appellant waived any error. We overrule appellant’s fifth point of error. Variance in Jury Charge In his sixth point of error, appellant contends that the trial court erred in submitting a portion of the jury charge in the disjunctive when it was alleged in the conjunctive in the indictment. In particular, appellant contends that, because the indictment charged that he “intentionally and knowingly” possessed marihuana, the court erred in instructing the jury to find him guilty if it found that he “intentionally or knowingly” possessed marihuana. The Court of Criminal Appeals has long approved the practice of pleading alternative elements of an offense conjunctively and submitting them disjunctively whenever the statutory language is disjunctive, as it is here. Nickerson v. State, 782 S.W.2d 887, 891 (Tex. Crim. App. 1990). Section 481.121 of the Texas Health and Safety Code provides, in relevant part, that “a person commits an offense if he knowingly or intentionally possesses a usable quantity of marihuana.” Tex. Health & Safety Code Ann. § 481.121(a) (Vernon 2003) (Emphasis added.). Therefore, the State properly charged the requisite culpable mental states for possession of marihuana conjunctively in the indictment and disjunctively in the charge. See Nickerson, 782 S.W.2d at 891. The trial court did not err in charging the alternative culpable mental states of the offense in the disjunctive. We overrule appellant’s sixth point of error. Ineffective Assistance of Counsel In his seventh point of error, appellant argues that he was denied effective assistance of counsel because his stand-by counsel’s failure to object to any of the proceedings, or suggest a competency inquiry caused him harm, i.e., hearsay testimony was elicited and his statement was admitted. “[A] defendant who chooses to forgo the assistance of counsel and represent himself at his trial also necessarily waives his right to complain on appeal that he was rendered ineffective assistance.” Robinson v. State, 16 S.W.3d 808, 813 n.6 (Tex. Crim. App. 2000). We overrule appellant’s seventh point of error. Conclusion We affirm the judgment of the trial court. Evelyn V. Keyes Justice Panel consists of Justices Nuchia, Jennings, and Keyes. Do not publish. Tex. R. App. P. 47.4.