Lee Anthony Pescaia v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00042-CR ______________________________ LEE ANTHONY PESCAIA, Appellant  V.  THE STATE OF TEXAS, Appellee                                               On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 31013-B                                                  Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION             Lee Anthony Pescaia appeals his conviction for possession of a firearm by a felon. Pescaia pled guilty and elected to have punishment assessed by a jury. The jury assessed punishment at eight years' imprisonment. The trial court sentenced Pescaia consistent with the jury's assessment. Pescaia appeals, alleging the trial court erred in overruling his objection to improper comments relating to parole law made by the State during closing argument. We affirm.             While on patrol in Gregg County, Douglas Morgan, an officer with the White Oak Police Department, pulled Pescaia over after observing Pescaia's vehicle swerve several times into the opposite lane of traffic and that Pescaia's vehicle's brake light was out. Officer Morgan discovered two rifles on the passenger seat of the pickup and a pistol on the console. Pescaia pled guilty and stipulated that he had previously been convicted of felony possession of a controlled substance and that he possessed a firearm before the fifth anniversary of his release from confinement. The State introduced evidence of the prior conviction for possession of a controlled substance. The State also introduced evidence that Pescaia had been convicted twice of driving while intoxicated and for another possession of a controlled substance. In addition, Pescaia had received deferred adjudication for possession of marihuana. Since possession of a firearm by a felon is a third degree felony, Pescaia was subject to imprisonment of not less than two years or more than ten years.             As his sole issue on appeal, Pescaia contends the trial court erred by overruling his objection to comments made by the State during closing argument. The State argued to the jury that Pescaia would only have to serve a quarter of his sentence, and Pescaia objected to the State's comments. The relevant record is as follows: [Prosecutor]: . . . One quarter of eligibility. In your jury charge, what does it say? Actual time plus good conduct time. So, my gosh, if I get ten years, actual time plus good time, a -- quarter of that time, that's 2.5 years, even if I make the maximum, ten years.  [Defense Counsel]: Judge, I'm going to object to any argument on parole law. The Charge clearly says do not use it as it applies to this defendant.  THE COURT: The jury will be governed by what is stated in the Charge. You may continue.  [Prosecutor]: You read the Court's Charge. You read the Court's Charge. He wants two years. Leniency may fit the crime, but leniency doesn't fit Lee Pescaia. Pescaia characterizes this exchange as overruling his objection to the State's comments and asserts the trial court's comments are sufficient to preserve error. We disagree.             The Texas Court of Criminal Appeals has held that "before a defendant will be permitted to complain on appeal about an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling." McFarland v. State, 989 S.W.2d 749, 751 (Tex. Crim. App. 1999); see Dean v. State, 995 S.W.2d 846, 850 (Tex. App.—Waco 1999, pet. ref'd). Generally, in order to preserve a complaint for appellate review, the record must show (1) that the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of the complaint and (2) that the trial court ruled adversely. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999). If the objection is sustained, counsel must then ask for an instruction to disregard. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985); Schumacher v. State, 72 S.W.3d 43, 47 (Tex. App.—Texarkana 2001, pet. ref'd). If the instruction is given, counsel must then move for a mistrial. Nethery, 692 S.W.2d at 701; Schumacher, 72 S.W.3d at 47. If counsel does not pursue the objection to an adverse ruling, error is not preserved. Tex. R. App. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). While Pescaia is correct in claiming that he was not required to move for a mistrial if the objection was overruled, we do not believe the trial court made an adverse ruling in this case.             Rule 33.1 of the Texas Rules of Appellate Procedure requires the trial court to have "ruled on the request, objection, or motion, either expressly or implicitly." Tex. R. App. P. 33.1(a)(2). Since the trial court did not expressly rule on the objection, we must determine whether the trial court implicitly ruled on the objection. See State v. Kelley, 20 S.W.3d 147, 153 n.3 (Tex. App.—Texarkana 2000, no pet.). An implicit ruling may be sufficient to preserve error. In Washington v. State, the First Court of Appeals held that error related to alleged improper jury argument was not preserved when the trial court, in response to an objection, admonished counsel to "stay within the record." 16 S.W.3d 70, 73 (Tex. App.–Houston [1st Dist.] 2000, pet. ref'd). Similarly, in this case, the trial court stated that "[t]he jury will be governed by what is stated in the Charge. You may continue." Counsel's objection referred to a portion of the jury charge that directed the jury not to apply the parole law to Pescaia. The court then admonished the jury to be governed by the jury charge. With no further objection or request, it was reasonable to conclude that the trial court's action satisfied the objection. Further, the trial court did not take any subsequent actions that would indicate an adverse ruling. We find the trial court's response in the present case did not constitute an adverse ruling on the defense objection. Because Pescaia did not pursue his objection to an adverse ruling, error was not preserved for appellate review. We overrule Pescaia's sole point of error.             For the reasons stated, we affirm.                                                                          Jack Carter                                                                         Justice  Date Submitted:          September 30, 2004 Date Decided:             October 21, 2004 Do Not Publish en="false" UnhideWhenUsed="false" QFormat="true" Name="Intense Reference"/>          In The Court of Appeals                        Sixth Appellate District of Texas at Texarkana                                                 ______________________________                                                              No. 06-11-00076-CR                                                ______________________________                                                                           IN RE: BILLY CHARLES JOHNSTON                                                                                                                                                                                                                                                                                      Original Mandamus Proceeding                                                                                                                                                 Before Morriss, C.J., Carter and Moseley, JJ.                                                    Opinion by Chief Justice Morriss                                                                                                                                                                                                                             O P I N I O N             When we received Billy Charles Johnston’s petition for writ of mandamus directed at the Honorable Eric Clifford, presiding judge of the Sixth Judicial District Court, we invited Judge Clifford’s response concerning Johnston’s request for a transcription of a 1997 pretrial hearing. Judge Clifford has advised, among other things, that “the transcripts and/or notes of the court reporter do not exist.” Because we will not require that an impossibility be ordered, we deny Johnston’s petition.            Johnston’s petition seeks a writ of mandamus directing Judge Clifford to grant his motion to compel preparation of a reporter’s record of a September 3, 1997, hearing at which the trial court denied a defense motion for continuance. Johnston states that, pursuant to a plea agreement, he pled guilty to attempted capital murder and received a forty-five year sentence. After he failed in his efforts to purchase a transcription of the thirteen-year-old pretrial hearing, Johnston filed a motion to compel with the trial court February 16, 2011. In the motion to compel, Johnston claimed he had a due process right to purchase[1] a transcription and requested that the trial court order the preparation of the transcription. The trial court denied Johnston’s motion to compel February 23, 2011.            To be entitled to mandamus relief, a relator must show that he or she has no adequate remedy at law to redress the alleged harm and that he or she seeks to compel a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding). An act is ministerial if it constitutes a duty clearly fixed and required by law. State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App. 1987) (orig. proceeding).            Johnston is not entitled to mandamus relief. Johnston argues he is entitled to purchase a transcription of the pretrial hearing because the district clerk has a duty to maintain the untranscribed notes for fifteen years, and he has a due process right to purchase the transcript.            The preservation of the notes of a court reporter are governed by Section 52.046(a)(4) of the Texas Government Code and Rule 13.6 of the Texas Rules of Appellate Procedure. Banks v. State, 312 S.W.3d 42, 43 (Tex. App.—Dallas 2008, pet. ref’d). Section 52.046(a) requires a court reporter, if requested, to “preserve the notes for future reference for three years from the date on which they were taken.” Tex. Gov’t Code Ann. § 52.046(a)(4) (Vernon 2005). Rule 13.6 of the Texas Rules of Appellate Procedure addresses the duties of the trial court clerk: When a defendant is convicted and sentenced . . . the court reporter must—within 20 days after the time to perfect the appeal has expired—file the untranscribed notes or the original recording of the proceeding with the trial court clerk. The trial court clerk need not retain the notes beyond 15 years of their filing date.  Tex. R. App. P. 13.6. Rule 13.6 became effective September 1, 1997—two days before the pretrial hearing at issue. See Banks, 312 S.W.3d at 44 n.2.            Although the notes should still be preserved by the trial court clerk, the notes were not preserved according to the response of the trial court. In his reply, Johnston argues a transcript does exist because he was able to obtain a copy of the guilty plea hearing on August 7, 2002.[2] While this transcription indicates at least some of the court reporter’s notes were in existence in 2002, that fact does not establish that there exists any transcription or any untranscribed notes of the continuance hearing. In the intervening eight years, the notes may have been destroyed, and notes of different hearings may have been handled differently.            Johnston has not provided this Court with any evidence that the district clerk still has copies of transcription, the untranscribed notes, or a recording of the continuance hearing. Johnston has failed to demonstrate any error in the trial court’s assertion that the court reporter’s notes no longer exist.            It is not necessary for this Court to determine whether the failure to preserve the notes for fifteen years violated Johnston’s due process rights.[3] Because the untranscribed notes of the court reporter no longer exist, no action by this Court could deliver the record Johnston seeks. We will not require the trial court to issue an order that is impossible to follow. Such an order would be an exercise in futility. A writ of mandamus will not issue if it would be useless or unavailing, or if the ultimate object sought to be accomplished is impossible of attainment. See In re Perez, Nos. 13-10-00067-CR & 13-10-00068-CR, 2010 Tex. App. LEXIS 1890 (Tex. App.—Corpus Christi Mar. 12, 2010, orig. proceeding) (mem. op., not designated for publication) (denying mandamus when court reporter’s notes no longer exist); see also Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995) (orig. proceeding); In re Charleston, No. 06-10-00037-CR, 2010 Tex. App. LEXIS 3509 (Tex. App.—Texarkana May 12, 2010, orig. proceeding) (mem. op., not designated for publication); A Am. Stamp & Novelty Mfg. Co. v. Wettman, 658 S.W.2d 241, 243 (Tex. App.—Houston [1st Dist.] 1983, orig. proceeding).            For the reasons stated, we deny Johnston’s petition for writ of mandamus.[4]                                                                                       Josh R. Morriss, III                                                                                    Chief Justice  Date Submitted:         May 23, 2011 Date Decided:            May 24, 2011  Publish  [1]Johnston is not claiming he is entitled to a free record. The Texas Court of Criminal Appeals has held the right to a free copy of a record is limited to a direct appeal.  Ex parte Trainer, 181 S.W.3d 358, 359 (Tex. Crim. App. 2005). [2]Johnston attached a transcription of the guilty plea hearing to his response. We note that this transcription specifies that the guilty plea hearing was held on June 5, 1997. Johnston claims the date on the transcription is incorrect. For the purposes of this mandamus, we will assume the transcription is of the guilty plea hearing, which Johnston states occurred on September 5, 1997.  [3]The United States Supreme Court has recognized some “rough accommodations” can be made which do not violate the Equal Protection Clause of the Fourteenth Amendment. See Norvell v. Illinois, 373 U.S. 420, 424 (1963) (death of court reporter). We express no opinion concerning whether Johnston’s due process rights were violated.  [4]Johnston also requested the trial court to order a new trial. We express no opinion concerning whether Johnston would be entitled to a new trial. To the extent Johnston is requesting this Court to order the trial court to grant a new trial, mandamus is not the appropriate remedy. The Texas Court of Criminal Appeals has held “the exclusive post-conviction remedy in final felony convictions in Texas courts is through a writ of habeas corpus pursuant to Tex. Code Crim. Proc. art. 11.07.” Olivo v. State, 918 S.W.2d 519, 525 n.8 (Tex. Crim. App. 1996); accord In re Harrison, 187 S.W.3d 199, 200 (Tex. App.—Texarkana 2006, orig. proceeding).                In his reply, Johnston also requests that this Court assess sanctions against the trial court. See Tex. R. App. P. 52.11(c). Rule 52.11 permits an appellate court to assess sanctions on a party or attorney who is not acting in good faith. Id. “An appellate court should exercise the discretion afforded by Rule 52.11 with caution and only after careful deliberation.” In re Cooper, 320 S.W.3d 905, 911 (Tex. App.—Texarkana 2010, orig. proceeding). Not only do we not conclude any wrongdoing by the trial court, we are not willing to exercise our discretion under Rule 52.11 to assess sanctions against the trial court.