Erika A. Espinoza v. State

Opinion issued June 7, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-00681-CR __________ ERIKA A. ESPINOZA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Criminal Court at Law No. 13 Harris County, Texas Trial Court Cause No. 5439 MEMORANDUM OPINION A jury found appellant, Erika A. Espinoza, guilty of the misdemeanor offense of failing to control her speed resulting in an accident (1) and assessed her punishment at a $200 fine. Appellant appealed her conviction to the County Criminal Court at Law, which affirmed the municipal court's judgment. (2) In three issues, appellant contends that the municipal court erred in denying her motion to transfer the case to another municipal court, denying her motion for instructed verdict because there was insufficient evidence to establish that the complainant's vehicle "was on the highway in compliance with law and the duty of each person to use due care," and denying her "objection to the proposed jury charge" because the State failed to prove the correct name of the complaining witness." We affirm. Factual and Procedural Background The complainant, Erika A. Bowman, testified that after she stopped her car for a red light at an intersection, she was hit from behind by a car driven by appellant. The collision, which the complainant described as of "medium" power, bent the bumper of her car and "mashed up" the hood of appellant's car. The collision also injured the complainant's neck. The complainant called for emergency assistance, and, when a police officer arrived, she told him that she had been sitting at the red light and had been hit from behind. The complainant provided a statement to the police officer, but appellant had already left the scene. However, the complainant noted appellant's license plate number. The complainant subsequently discovered that the collision caused her vehicle's frame to crack in two places. Houston Police Officer S. Salley testified that he was dispatched to the scene in response to the collision. When Salley arrived, he found the complainant with her car, which had been damaged in the collision and that appellant had already left the scene. The complainant told Salley that she had been hit from behind while stopped for a red light. Transfer In her first issue, appellant argues that the trial court erred in denying her motion to transfer the case to City of Houston Municipal Court Number 12 from Municipal Court Number 8 "because municipal court number 12 retained jurisdiction while municipal court number 8 did not." Appellant asserts that the "conviction is void because [Municipal] Court Number 8 lacked jurisdiction." In support of her argument that the case should have been transferred to Municipal Court Number 12, appellant relies on article 4.16 of the Texas Code of Criminal Procedure, which provides, "When two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or a complaint shall first be filed shall retain jurisdiction except as provided in Article 4.12." Tex. Code Crim. Proc. Ann. art. 4.16 (Vernon 2005). (3) Article 4.12 provides that a misdemeanor case is to be tried in justice court in the precinct in which the offense was committed or in the precinct in which the defendant or any of the defendants reside. Id. art. 4.12(a) (Vernon 2005). Article 4.12 is a venue requirement and is not jurisdictional in nature. Bradley v. Swearingen, 525 S.W.2d 280, 282 (Tex. Civ. App.--Eastland 1975, no writ). Here, appellant asserts that the case was originally filed in Municipal Court Number 12. However, the record also contains a subsequent "notice of a trial by jury," which is signed by appellant, indicating that the case had actually been assigned to Municipal Court Number 8. Nevertheless, under the rules for the City of Houston Municipal Courts, "[a] judge may transfer any case set in his court to another court, provided that the transferee court accepts the case. No specific order of transfer need be entered of record." Rules of the City of Houston Municipal Courts 21(b). The record establishes that Municipal Court Number 8, to the extent it was a "transferee" court under this rule, accepted the case. Accordingly, we hold that the municipal court did not err in denying appellant's motion to transfer the case to Municipal Court Number 12. We overrule appellant's first issue. Legal Sufficiency In her second issue, appellant contends that the trial court erred in denying her motion for instructed verdict because there is insufficient evidence to establish that the complainant's car "was on the highway in compliance with law and the duty of each person to use due care." Appellant asserts that the State should have "negated the possible violations" of "countless" laws that the complainant "may not have been in compliance with" at the time of the collision. For example, appellant complains that the State never asked the complainant if "she wore her seat belt, had an inspection sticker, a driver's license, or proof of financial responsibility." A challenge on appeal to the denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The State accused appellant of failing to control her speed resulting in an accident under section 545.351(b)(2) of the Texas Transportation Code, which provides that an operator of a motor vehicle "shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care." See Tex. Transp. Code Ann. § 545.351 (Vernon 1999). Here, the complainant testified that when she stopped her car at a red light, she was hit from behind by a car driven by appellant. In response to appellant's questioning, the complainant confirmed that she had not moved from one lane to another during this time and had done nothing other than stop her car for the red light before being hit by appellant. Thus, the only evidence in the record on this issue shows that the complainant was exercising due care at the time of the collision, and there is no evidence that the complainant committed a moving violation at the time of the collision. Furthermore, section 545.351(b)(2) does not require the State to prove that, at the time of a collision, a complainant wore a seat belt or had an inspection sticker, a driver's license, or proof of financial responsibility at the time of the accident. See id. Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Accordingly, we hold that the evidence is legally sufficient to support her conviction. We further hold that the trial court did not err in denying appellant's motion for instructed verdict on the ground that there was insufficient evidence to establish that the complainant's vehicle "was on the highway in compliance with law and the duty of each person to use due care." We overrule appellant's second issue. Jury Charge In her third issue, appellant contends that the trial court erred in denying her objection to the proposed jury charge because "the State failed to prove the correct name of the complaining witness." Appellant notes that although the complaint in the case identifies the complainant by putting her last name first, as "Bowman A. Erika," the jury charge identifies the complainant as "Erika A. Bowman." When legal sufficiency of the evidence is challenged based on a variance between the charge and the evidence, we review the variance for materiality, because only a "material" variance will render the evidence insufficient. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001); Smith v. State, 763 S.W.2d 836, 839 (Tex. App.--Dallas 1988, pet. ref'd). When reviewing the "materiality" of the variance, we must determine whether the variance deprived the defendant of notice of the charges and acted as a surprise, or whether the variance subjects the defendant to the risk of later being prosecuted for the same offense. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). The burden of demonstrating such surprise or prejudice rests with the defendant. Human v. State, 749 S.W.2d 832, 837 (Tex. Crim. App. 1988). Here, the complainant was identified in the accident report, and throughout trial, as Erika A. Bowman. There is no indication in the record that appellant did not know who she was accused of injuring. Fuller, 73 S.W.3d at 254. Nor is there any indication that appellant was surprised by the proof at trial. Id. Finally, any variance between the complaint, the charge, and the evidence did not subject appellant to the risk of later being prosecuted for the same offense. Id. Accordingly, we hold the variance was not material, the evidence is legally sufficient to prove the identity of the complainant, and the trial court did not err in denying appellant's objection to the proposed jury charge. We overrule appellant's third issue. Conclusion We affirm the order of the County Criminal Court at Law. Terry Jennings Justice Panel consists of Justices Taft, Jennings, and Alcala. Do not publish. Tex. R. App. P. 47.2(b). 1. See Tex. Transp. Code Ann. § 545.351 (Vernon 1999). 2. In addressing appellant's appeal, we review those points that appellant raised before the reviewing county court at law. See Tex. Gov't Code Ann. § 30.00027 (Vernon 2004) (record and briefs on appeal in county court at law constitute record and briefs on appeal to court of appeals). 3. We note that the purpose of article 4.16 is to "prevent any confusion or contention between different courts having concurrent jurisdiction and each seeking to exercise jurisdiction and not to shield an accused from prosecution." Garcia v. State, 901 S.W.2d 731, 732 (Tex. App.--Houston [14th Dist.] 1995, pet. ref'd). The statute does not render proceedings in the second court void. Id. Thus, even if there is a mandatory priority of jurisdiction under article 4.16, such jurisdiction may be waived in favor of a second court with proper jurisdiction. Id.