John Dax Matyastik v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-93-221-CR JOHN DAX MATYASTIK, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE COUNTY COURT OF MILAM COUNTY NO. 19,242, HONORABLE ROGER HASHEM, JUDGE PRESIDING PER CURIAM Appellant was convicted of speeding following a trial in justice of the peace court. Tex. Rev. Civ. Stat. Ann. art. 6701d, § 166, 169B (West 1977 & Supp. 1994). On appeal by trial de novo in county court, a jury again found appellant guilty and assessed a $150 fine. Appellant first complains that the county court erred by overruling his motion to quash the complaint. According to appellant, the complaint does not allege an offense because it does not state that he operated a motor vehicle. The complaint alleges that appellant "did then and there operate and drive a vehicle, to-wit: 1989 Black Nissan PU." We also understand appellant to complain that the description of the vehicle, "1989 Black Nissan PU," is not adequate. Article 6701d, section 166(a) provides that "[n]o person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances then existing." The complaint tracks the language of the statute, which is not limited to the operation of motor vehicles. Further, appellant brought forward only a partial statement of facts that does not contain a transcription of the trial testimony. The record fails to demonstrate that the asserted deficiency in the description of the vehicle was prejudicial to him. Adams v. State, 707 S.W.2d 900 (Tex. Crim. App. 1986). Point of error one is overruled. Appellant next complains that the jury charge authorized his conviction for an offense not alleged in the complaint. Specifically, he argues that "[t]he complaint alleges that appellant drove a PU on November 4, 1990, and that he was speeding. The court's charge to the jury charged that appellant drove a motor vehicle on November 11, 1990, and that he was speeding." Appellant did not object to the charge. We have examined the record before us and find no basis for concluding that the alleged error was fundamental. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (opinion on motion for rehearing). Point of error two is overruled. Appellant's third point of error is that there is a variance between the complaint, which alleges that the offense occurred on November 4, 1990, and the judgment, which recites that the offense was committed on January 4, 1990. The traffic citation on which this prosecution is based appears in the record and reflects that the offense took place on November 4, 1990. We will reform the judgment to reflect the correct date of the offense. Point of error three is otherwise overruled. In point of error four, appellant urges that the court erred by overruling his plea of double jeopardy. Appellant refers us to the docket sheet, which contains this entry by the deputy county clerk dated March 6, 1992: "Paid $312.50 -- receipt # 13967 (see Cause No. 19243)." Appellant's plea was not verified and alleged no facts in support of the jeopardy claim. See Tex. Code Crim. Proc. Ann. art. 27.06 (West 1989). When the plea was presented to the court, defense counsel stated that appellant had been tried for this offense and, pursuant to a plea bargain, had paid a fine and taken a defensive driving course. The prosecutor responded that the plea bargain was rejected by appellant and withdrawn by the State, and that the money tendered by appellant was returned. Neither party offered any evidence in support of its position and the issue was not submitted to the jury. See Apolinar v. State, 820 S.W.2d 792 (Tex. Crim. App. 1991). Appellant did not meet his burden of proving prior jeopardy. See Guzman v. State, 732 S.W.2d 683, 686 (Tex. App.--Corpus Christi 1987, no pet.). The fourth point of error is overruled. Appellant asserts in his fifth point of error that the county court erred by overruling his motion, filed after jury selection began, to dismiss the appeal to that court from the justice of the peace court. Appellant relies on Texas Rule of Appellate Procedure 59(b), which does not apply to appeals from justice court to county court and does not mandate dismissal on the appellant's motion in any event. An appeal from justice court to county court is by trial de novo. Tex. Code Crim. Proc. Ann. art. 44.17 (West Supp. 1994). By giving notice of appeal, appellant invoked his right to trial de novo and deprived the justice court judgment of any finality. Deal v. State, 423 S.W.2d 929 (Tex. Crim. App. 1968). A trial de novo literally is a trial from the beginning as if no former trial had been held. Ex parte Jones, 81 S.W.2d 706, 707 (Tex. Crim. App. 1935). Appellant's motion to dismiss the appeal to county court was effectively a motion to dismiss the prosecution. The county court has not been shown to have abused its discretion by overruling the motion. Point of error five is overruled. Finally, appellant contends his right to due process of law was violated when his attorney was held in contempt by the county court. If such an incident occurred, it is not reflected in the record before us. Nothing is presented for review. Point of error six is overruled. The judgment of conviction is reformed to reflect that the offense was committed on November 4, 1990. As reformed, the judgment is affirmed. Before Chief Justice Carroll, Justices Kidd and B. A. Smith Reformed and, as Reformed, Affirmed Filed: May 11, 1994 Do Not Publish