Texas Department of Public Safety v. David Edward Price

NO. 07-07-0037-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JULY 10, 2007 ______________________________ TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant v. DAVID EDWARD PRICE, Appellee _________________________________ FROM THE COUNTY COURT OF HUTCHINSON COUNTY; NO. 5805; HON. FAYE BLANKS, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. The Texas Department of Public Safety (DPS) appeals from an order granting David Edward Price (Price) a concealed handgun license. Via two issues, the DPS contends that the trial court erred in 1) finding that Price had not been convicted of a prior felony and 2) awarding Price attorney's fees. We reverse and render. Background According to the record before us, Price applied for and received a license to carry a concealed handgun in 2001. Effort was made to renew the license in 2005. It went for naught because the DPS denied his renewal application on February 24, 2006. The reason given for its decision involved the applicant's conviction for aggravated assault in 1963. Though considered a misdemeanor at the time, the offense consisted of Price and another instigating a fight against a person named Loyd Crawford. Price and his compatriot had and used a knife during the encounter, while the victim did not. And, though only the compatriot stabbed Crawford, both attackers fled to Vidor, Texas, to avoid apprehension. Shortly after the two fled, the victim was taken to the hospital by the local police due to heavy bleeding. There it was discovered that he had been stabbed in the stomach and neck, among other places. Eventually, appellant was arrested in Vidor and returned to face prosecution. Issue One - Prior Felony Conviction The DPS contends that even though aggravated assault was a class A misdemeanor in 1963, it has since been reclassified as a felony. As such, it bars renewal of Price's handgun license. We sustain the point. Under the Concealed Handgun Act (the Act) one is ineligible for a license if he has been "convicted of a felony." See Tex. Gov't Code Ann. §411.172(a)(3) (Vernon 2005). Yet, when Price first obtained the license, the statute read in a way that required a snapshot, so to speak, of the classification of the crime at the time of conviction. See Tex. Dep't of Pub. Safety v. Kreipe, 29 S.W.3d 334, 335-38 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). In other words, if the offense at the time of conviction was considered something less than a felony, then the conviction did not bar the applicant from obtaining the license. See Tex. Dep't of Pub. Safety v. Randle, 31 S.W.3d 786, 788 (Tex. App.-Houston [1st Dist.] 2000, no pet.). However, in 2003, the pertinent statute was amended. Since then the provision states that an offense constitutes a felony if "at the time of the person's application for a license to carry a concealed handgun" it 1) "is designated by a law of this state as a felony," 2) "contains all the elements of an offense designated by a law of this state as a felony," or 3) "is punishable by confinement for one year or more in a penitentiary." Tex. Gov't Code Ann. §411.172(b)(1)(a)-(c) (emphasis added). The effect of this change is to "require[] reconsideration of the offense 'conduct' as viewed at the time of the application--with possible re-characterization of the offense for the purpose of the licensing statute--rather than at the time of commission of the offense." Satterfield v. Dept. of Public Safety, 221 S.W.3d 909, 911 (Tex. App.-Beaumont 2007, no pet. h.). One further amendment merits comment. It occurred in 1973 and involved the offense of aggravated assault. During that year, the legislature reclassified the crime from a misdemeanor to a felony. See Act of May 24, 1973, 63rd Leg., R.S. ch. 399, §1, §22.02(c), 1973 Tex. Gen. Laws 883, 919. Comparing the foregoing amendments to the evidence of record, we arrive at the following conclusion. Though Price may have been eligible for a concealed handgun permit back in 2001 when he originally obtained one, he was not eligible for another after the first expired four years later. This is so because by 2005, his 1963 crime of aggravated assault was no longer a misdemeanor but rather a felony through name and circumstance. Not only had the legislature so denominated it but also the circumstances of the crime made it such. Regarding the latter, Price admitted to being a party to the stabbing of Crawford. Furthermore, Crawford necessitated medical attention as well as a blood transfusion and stitches due to the stabbing. From the location of the cuts and their obvious gravity given the extensive blood loss he suffered, one could rationally conclude that the victim suffered serious bodily injury, and we find no evidence contradicting that. So, because Crawford suffered such injury, the offense committed by Price rose to the level of felony aggravated assault. See Satterfield v. D.P.S., 221 S.W.3d at 914 (holding that, if the aggravating factor in 1962 was the cause of "serious bodily injury," the offense would be "designated by the law of this state as a felony" at the time of Satterfield's 2005 application); see Tex. Pen. Code Ann. §22.02 (Vernon Supp. 2006) (defining aggravated assault as an assault causing serious bodily injury to another; or using or exhibiting a deadly weapon during the commission of an assault; an assault committed by a public servant acting under color of the servant's office or employment; an assault against a public servant while on duty, or in retaliation for the exercise of his duty; an assault committed in retaliation against a witness, prospective witness, or one who reports a crime; and an assault against one the actor knows is a security officer performing the officer's duty); see also Tex. Pen. Code Ann. §1.07(a) (46) (Vernon 2003) (defining serious bodily injury as bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ); Martinez v. State, 694 S.W.2d 47, 48-49 (Tex. App.-Corpus Christi 1985, pet. ref'd) (holding that one suffered serious bodily injury when he was stabbed with a knife and suffered extensive blood loss); Tex. Pen. Code Ann. §22.02(b) (Vernon Supp. 2006) (denominating aggravated assault as a felony). In concluding as we do, we are cognizant of Price's argument regarding the supposed impermissible retroactive application of the amendments. Yet, we find nothing impermissible in our conclusion. First, application of the amendments lacks true retroactivity. This is so because Price did not receive a never ending license back in 2001. Rather, statute dictated that it expire within four years of issuance. Tex. Gov't Code Ann. §411.183 (Vernon Supp. 2006). So, upon its expiration, he had nothing to affect viz the supposed retroactive application of any law. Instead, if he cared to secure another license, he had to apply for one. Second, the words of the statute are plain and clear, and we have to so interpret them. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999) (stating that legislation must be construed as written by assigning words their plain and ordinary meaning). And, those plain and clear words mandate classification of the offense as of the time application for the gun permit is sought, not when the crime occurred. Had the legislature cared to insulate from the effect of its amendments those applicants seeking another license once their first expired, it could have so stated, but it did not. In sum, Price was not entitled to a license to carry a concealed handgun if he had been convicted of a felony. And, the evidence can lead to but one conclusion; he had been convicted of a felony. In holding otherwise, the trial court erred. Issue Two - Attorneys' Fees Next, the DPS contends the trial court erred by awarding attorneys' fees to Price. In light of our disposition of issue one, we agree and sustain the issue. Having sustained both issues, we reverse the judgment of the trial court and render judgment denying Price's application for a license to carry a concealed handgun. Brian Quinn Chief Justice sider the latter two grounds, they were not preserved for review. Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (holding that when the objection at trial fails to comport with that on appeal, the complaint is waived). Lastly, evidence was introduced at trial illustrating that after the victim told police appellant had assaulted her, appellant called the investigating police officer. The officer asked appellant if he was willing to be tested for sexually transmitted diseases. Appellant agreed to be tested but said that he could not afford it. This led the officer to make arrangements for the cost to be waived and he informed appellant of that and of a date he arranged for testing. Appellant again agreed to undergo testing and informed the officer that he would give the officer his statement after the test. Appellant, however, failed to appear for the appointment; instead, he left Lubbock. This being evidence presented at trial, the prosecutor was entitled to summarize it during his closing argument. See Gallo v. State, 239 S.W.3d 757, 767 (Tex. Crim. App. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2872, 171 L.Ed.2d 813 (2008) (stating that summation of the evidence is a permissible area for jury argument). We overrule the issues. Issues 4 and 5 - Notice of Expert Witness Through the next two issues, appellant questions the trial court’s decision to overrule his objection to expert testimony and purportedly deny his motion for continuance. We find the following faults with the contentions. First, the record does not reflect that the trial court ruled on the specific objections now urged by appellant. Other of his objections were overruled after the trial court conducted a hearing to determine if the witness in question, Mike Betancourt, was qualified to testify as an expert. Without a ruling, a complainant generally does not preserve for review his complaint. Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008). Second, appellant mistakenly contends that he was denied prior notice of the State’s intent to call Betancourt as an expert. Betancourt’s name appeared on the State’s witness list with the notation: “CAC; forensic interviewer; expert regarding forensic interview, including signs and symptoms of sexual abuse and/or child abuse.” (Emphasis added). Moreover, defense counsel represented to the trial court that he received the document containing the aforesaid statement. Thus, the State did not neglect to identify Betancourt as a potential expert witness. Third, the prosecutor informed the trial court that Betancourt had not prepared an expert report and that the forensic interview and drawings made during the interview had been provided to appellant. Defense counsel acknowledged receiving this information. So too did counsel represent that he would encounter no surprise if the scope of Betancourt’s testimony did not exceed the scope of the data given counsel. Finally, appellant does not argue that the witness’ testimony exceeded the scope of what was contained in those documents. Nor does he claim surprise or prejudice on appeal. Gallo v. State, 239 S.W.3d at 765 (requiring the appellant to show how permitting the witness to testify caused prejudice). Fourth, appellant failed to cite us to that portion of the record containing his purported motion for continuance. Nor did our review of the record fill the void for we found no request for a continuance being sought due to the supposed failure to disclose Betancourt’s identity or the substance of his testimony. Whether this deficiency (if not misrepresentation) in appellant’s briefing was accidental or intentional is unknown. Nonetheless, the trial court cannot be faulted for purportedly denying relief which appellant did not request. The issues are overruled. Issue 6 - Newspaper Article Next, appellant argues that the trial court erred in refusing to poll the jury about a newspaper article concerning the trial. Yet, appellant fails to cite us to where in the record this matter was broached to and rejected by the trial court. Thus, he did not adequately brief the issue. See Moreno Denoso v. State, 156 S.W.3d 166, 183 (Tex. App.–Corpus Christi 2005, pet. ref’d) (requiring the litigant to cite to the record or risk waiving his complaint). Additionally, the trial court instructed the jury, before trial began, against reading any newspaper articles about the case. So too did it remind the jury to obey its instructions when the jury recessed after the first day’s testimony. We generally presume that the jury follows judicial instructions. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); Dixon v. State, 64 S.W.3d 469, 475 (Tex. App.–Amarillo 2001, pet. ref’d). And, while that presumption may be rebutted, appellant cited us to nothing of record suggesting that the admonishment was violated. See Thrift v. State, 176 S.W.3d at 224 (requiring the appellant to direct the court to evidence illustrating that the jury violated the instruction). Next, having instructed the jury not to read newspaper articles, the trial court was not required to poll the jury as to whether any member read the piece. See Powell v. State, 898 S.W.2d 821, 828 (Tex. Crim. App. 1994) (stating that the court was not required to poll the jury members as to whether they had read a newspaper article when the court had frequently admonished the jury not to read any such articles and polling the members created a risk of calling to their attention an article of which they might not otherwise be aware). So, we reject appellant’s contention that a poll was needed. Appellant’s sixth issue is overruled. Issue 7 - Admonishment of Counsel Finally, appellant attacks the manner in which the trial court admonished both counsel when the child victim returned to the witness stand after an evening’s recess and neither party chose to question her. That admonishment consisted of the court saying: Well, that was painless. You can step down. We’re done. Thank you. Counsel, if you all don’t mind, if you all would let me know something like that before we have everybody brought in, that would be really helpful. (Emphasis added). Moreover, no one objected to it. Nor was the comment of the ilk that would tend to taint the presumption of innocence afforded to the defendant given that it was directed to both counsel and dealt with a way to minimize delay. Thus, any complaint that appellant may have had about it was waived. Tex. R. App. P. 33.1(a)(1): see Blue v. State, 41 S.W.3d 129, 132-33 (Tex. Crim. App. 2000) (noting that comments to the jury may be fundamental error when they taint the defendant’s presumption of innocence). We overrule the issue. The judgments of the trial court are affirmed. Brian Quinn Chief Justice Do not publish.