Domino, Quinton Lynell v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00132-CR ______________________________ QUINTON LYNELL DOMINO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th Judicial District Court Harris County, Texas Trial Court No. 897859 Before Morriss, C.J., Grant and Ross, JJ. Opinion by Chief Justice Morriss O P I N I O N Quinton Lynell Domino was convicted in the 248th Judicial District Court of Harris County of the offense of theft. Pursuant to a plea agreement, which was followed by the court, Domino pled guilty to a third-degree felony and pled true to numerous enhancements. Domino was sentenced to twenty-five years' imprisonment, as provided by the plea agreement. He was represented by appointed counsel. Domino filed a notice of appeal pro se, which contains boilerplate language designed to fall under the language of Tex. R. App. P. 25.2(b)(3). The notice states that the trial court granted permission to appeal, that the appeal is for a jurisdictional defect, and that the substance of the appeal was raised and ruled on before trial. This language does not accurately reflect the record in any respect. There is nothing in this record to show the trial court granted permission to appeal, and the judgment itself contains a stamped notation that reads, "Appeal waived, No permission to appeal granted." This notation is explicitly supported by the plea agreement itself, in which Domino agreed that, if the plea agreement was kept, he waived his right of appeal. The plea agreement was kept. Even if he had not signed such a waiver, the record affirmatively shows he was convicted of a crime which he admitted was committed in Harris County and over which a district court has jurisdiction. Further, the record contains no pretrial motion from which Domino could appeal. The notice of appeal is obviously a one-size-fits-all notice that was filed without any thought for its accuracy or correctness, and which this record affirmatively shows to be untrue in every respect. A criminal defendant may waive many rights, including the right to appeal a conviction. Blanco v. State, 18 S.W.3d 218, 219-20 (Tex. Crim. App. 2000). That waiver is binding on the defendant and prevents him from appealing any issue in the case without the consent of the trial court. Id. Domino agreed, with the concurrence of counsel, to plead guilty and to waive his right to appeal. We will hold him to his agreement. See id. The appeal is dismissed. Josh R. Morriss, III Chief Justice Date Submitted: November 12, 2002 Date Decided: November 13, 2002 Do Not Publish an amount by aggregate weight, including any adulterants or dilutants, of four grams or more but less than two hundred grams." Cuddy contended the State not only was required to prove the bag contained methamphetamine, but also had the burden of proving the existence of any adulterants or dilutants, added to increase the bulk or quantity of the final product, and their weight. Because no evidence was produced with regard to adulterants or dilutants, Cuddy argued the State failed to show that the methamphetamine, plus any adulterants or dilutants, weighed more than four grams. Based on that reasoning, Cuddy argued he could only be charged with possession with the intent to deliver less than one gram of methamphetamine, which is a state jail felony, as opposed to the second-degree felony charged in the indictment. The trial court denied Cuddy's motion, and he brings this appeal. In his first point of error, Cuddy contends the trial court erred by not granting his motion for acquittal. A no-evidence motion for acquittal is reviewed in the same manner as a legal sufficiency challenge. Isassi v. State, 91 S.W.3d 807, 809 (Tex. App.-El Paso 2002, pet. ref'd). The standard for reviewing a legal sufficiency challenge is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Royal v. State, 944 S.W.2d 33, 35 (Tex. App.-Texarkana 1997, pet. ref'd); Gaffney v. State, 937 S.W.2d 540, 541 (Tex. App.-Texarkana 1996, pet. ref'd). Whether the evidence satisfies the legal sufficiency test is a question of law. Collins v. State, 969 S.W.2d 114, 116 (Tex. App.-Texarkana 1998, pet. ref'd). A determination that the evidence is legally insufficient means (1) the case should never have been submitted to the jury, and (2) the cause must be reversed and an acquittal ordered. Id. In support of his contention, Cuddy relies on Cawthon v. State, 849 S.W.2d 346 (Tex. Crim. App. 1992). In Cawthon, the court held that, when adulterants and dilutants constitute part of the weight utilized to increase the amount of the controlled substance, thereby increasing the possible length of punishment, the State must have proved the following beyond a reasonable doubt: (1) the identity of the controlled substance; (2) that the remaining adulterants or dilutants have not affected the chemical activity of the controlled substance; (3) that the adulterants or dilutants were added to the controlled substance with the intent to increase the bulk or quantity of the final product; and (4) the weight of the illegal substance, including any adulterants or dilutants. Id. at 348-49; see Reeves v. State, 806 S.W.2d 540 (Tex. Crim. App. 1990). Cawthon, however, has been superseded by statute and subsequent caselaw. Under the Texas Health and Safety Code, adulterants or dilutants are now defined as "any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance." Tex. Health & Safety Code Ann. § 481.002(49) (Vernon Supp. 2003); see Isassi, 91 S.W.3d at 810. The State is no longer required to determine the existence or the amount of any adulterants or dilutants that may have been added to the controlled substance. Rather, the State need only prove that the controlled substance, including any adulterants or dilutants, equals the minimum weight set forth in the indictment. Isassi, 91 S.W.3d at 810. In the present case, the State presented evidence the methamphetamine weighed 27.95 grams, which is obviously more than the minimum weight alleged in the indictment, and Cuddy stipulated to that evidence. Therefore, by reviewing the record in a light most favorable to the verdict, the evidence was legally sufficient to support the conviction, and Cuddy's point of error is overruled. In his next point of error, Cuddy complains the following statements constituted improper commentary on Cuddy's decision not to testify: Let me ask you something. You're riding with somebody. A bunch of police surround you, get you out, put you on the ground, find dope on your passenger, and you didn't know anything about it, what are you going to be saying? What's going on? "I didn't know nothing about it." (2) The State may not allude to or comment on a defendant's failure to testify. Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). The rule has been violated if the prosecutor's language was manifestly intended, or was of such a nature, that the jury naturally took it to be a comment on the defendant's failure to testify. Roberts v. State, 923 S.W.2d 141, 145 (Tex. App.-Texarkana 1996, pet. ref'd). The reviewing court must view the challenged comment from the jury's standpoint, and the language must be more than an implied or indirect allusion to the defendant's silence. Id. Reviewing the closing argument from the jury's standpoint, it is clear the prosecutor's comments were directed toward Cuddy's silence at the time of his arrest, rather than his failure to testify at the time of trial. See Short v. State, 671 S.W.2d 888, 890 (Tex. Crim. App. 1984); Greenwood v. State, 740 S.W.2d 857, 860 (Tex. App.-Dallas 1987, no pet.). While the right to remain silent after arrest and the right not to self-incriminate at trial are derived from the same constitutional provisions, the protections apply in different contexts, and an objection to one does not preserve error on appeal for the other. Short, 671 S.W.2d at 890; Greenwood, 740 S.W.2d at 860. Because the prosecutor commented on Cuddy's silence after arrest, not his failure to testify, the trial court properly overruled the objection. In his next point of error, Cuddy contends the trial court erred by admitting pen packets into evidence during the punishment phase because they were not properly authenticated. During the punishment phase of a criminal trial, the State or the defendant may present evidence the court deems relevant to sentencing, including the prior criminal record of a defendant. Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 1981 & Supp. 2003). The Texas Court of Criminal Appeals has established that pen packets are admissible to show a defendant's prior criminal record provided they are properly authenticated as set forth in Texas Rule of Evidence 902. Reed v. State, 811 S.W.2d 582, 586 (Tex. Crim. App. 1991); see Tex. R. Evid. 902. Certification by the record clerk of the Texas Department of Criminal Justice, Institutional Division (TDCJID) constitutes proper authentication of the copies of the judgment and sentence found in a pen packet. Reed, 811 S.W.2d at 586; Jones v. State, 810 S.W.2d 824, 828 (Tex. App.-Houston [14th Dist.] 1991, no pet.). In the present case, Cuddy contends the pen packets were not properly authenticated because the record clerk of the TDCJID failed to properly affix the required seal to the packets. See Tex. Code Crim. Proc. Ann. art. 37.07. However, after reviewing the pen packets, it is clear the record clerk of the TDCJID both signed the pen packets and properly affixed the required seal, though the seal is very faint. See Tex. R. Evid. 902(1), (2). Therefore, the pen packets were properly authenticated, and the trial court did not err by admitting them into evidence. See Reed, 811 S.W.2d at 586; Jones, 810 S.W.2d at 828. For the reasons stated, we affirm the judgment of the trial court. Josh R. Morriss, III Chief Justice Date Submitted: March 6, 2003 Date Decided: April 18, 2003 Publish 1. The police were able to show that the cellular telephone used to call the informant was the same one found in Cuddy's vehicle. 2. Cuddy objected to the State's argument as a comment on his failure to testify. See Tex. R. App. P. 33.1.