Shelby Mark Neugebauer v. State

NO. 07-07-0214-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 29, 2008 ______________________________ SHELBY MARK NEUGEBAUER, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY; NO. 9286-A; HONORABLE HAL MINER, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. ABATEMENT AND REMAND Appellant, Shelby Mark Neugebauer, seeks to overturn the trial court's decision to revoke its previous order granting him shock probation. For the reasons expressed herein, we abate and remand this cause to the trial court for appointment of new counsel. On May 14, 1997, Appellant was convicted of intoxication manslaughter and punishment was assessed by a jury at eight years confinement and a $10,000 fine. The execution of Appellant's sentence began immediately. (1) Appellant's conviction was affirmed by this Court on June 16, 1998, in Cause Number 07-97-0213-CR. The Mandate of this Court issued on December 30, 1998. On April 26, 1999, Appellant filed a motion with the trial court seeking to suspend further imposition of his sentence pursuant to article 42.12, § 6 of the Texas Code of Criminal Procedure, under the procedure commonly referred to as "shock probation." On June 1, 1999, the trial court heard Appellant's motion and ordered that his sentence, but not the fine, be suspended in favor of community supervision for ten years. In 2007, the State filed a motion to revoke Appellant's community supervision for three violations of the condition that he abstain from alcohol consumption and one violation of the requirement that he pay a supervision fee. Appellant entered a plea of not true to the allegations. Following presentation of testimony and evidence, the trial court revoked Appellant's community supervision and sentenced him to seven and one-half years confinement. Appellant's original attorney on appeal filed an Anders (2) brief in support of a motion to withdraw. Having concluded that an arguable ground for appeal existed, on April 2, 2008, this Court abated this appeal and remanded the case to the trial court for the appointment of new counsel. On May 21, 2008, Appellant's new counsel on appeal also filed an Anders brief in support of a motion to withdraw. The State did not respond to the original Anders brief, and the time for filing a response to the second Anders brief has not expired. When faced with an Anders brief, an appellate court has a duty to conduct a full examination of the proceeding, and if its independent inquiry reveals a nonfrivolous or arguable ground for appeal, it must abate the proceeding and remand the case to the trial court so that new counsel can be appointed to brief the issues. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). As we pointed out in our opinion of April 2, 2008, as then in effect, for purposes of suspending further imposition of sentence and placing the defendant on shock probation, the jurisdiction of the trial court continues for 180 days from the date the "execution of the sentence actually begins." Tex. Code Crim. Proc. Ann. art. 42.12, § 6(a) (Vernon 2004) (emphasis added). Execution of sentence begins upon the defendant's incarceration. Bailey v. State, 160 S.W.3d 11, 14, fn.2 (Tex.Crim.App. 2004). Appellant was originally incarcerated on May 14, 1997; therefore, execution of Appellant's sentence began on May 14, 1997. The trial court's grant of shock probation on June 1, 1999, clearly more than 180 days after execution of Appellant's sentence actually began, was arguably done at a time when the trial court was without jurisdiction to enter that order. See State v. McDonald, 642 S.W.2d 492, 493 (Tex.Crim.App. 1982); State v. Hatten, 508 S.W.2d 625, 628 (Tex.Crim.App. 1974). A trial court order granting shock probation after it has lost jurisdiction is void. Ex Parte Busby, 67 S.W.3d 171 (Tex.Crim.App. 2001) (overruled on other grounds, Ex Parte Hale, 117 S.W.3d 866 (Tex.Crim.App. 2003)). Appellant's new appellate counsel opines that the trial court did have jurisdiction because Appellant was not incarcerated for more than 180 days prior to the suspension of sentence, the Appellant having been released on bond pending Appellant's original appeal on the merits of his conviction. Appellant's new appellate counsel, however, ignores the potential argument that if the jurisdiction of the trial court ended "180 days from the date the execution of the sentence actually begins", then the trial court's jurisdiction ended on November 10, 1997, more than 18 months prior to entry of the June 1, 1999, Order Suspending Imposition of Sentence; that if the trial court jurisdiction ended prior to entry of the order granting shock probation, then the order was void; and that if the order granting shock probation was void, then any order purporting to revoke that probation would be void. We conclude that issue warrants briefing. Therefore, having concluded that an arguable ground for appeal still exists, we grant Appellant's counsel's motion to withdraw, abate this proceeding, and again remand this cause to the trial court for the appointment of new counsel. See Bledsoe, 178 S.W.3d at 827; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We direct the trial court to appoint new counsel to represent Appellant on appeal by June 30, 2008. The trial court shall furnish the name, address, telephone number, and state bar number of new counsel to the clerk of this Court immediately after the appointment of counsel is ordered. Finally, the trial court shall cause its order appointing counsel to be included in a supplemental clerk's record which shall be filed with the Clerk of this Court by July 14, 2008. Appellant's brief shall be due forty-five days from the date of the trial court's appointment of new counsel. All other appellate deadlines shall be in accordance with the Texas Rules of Appellate Procedure. It is so ordered. Per Curiam Do not publish. 1. The Appellant was incarcerated on May 14, 1997. The Appellant remained confined in either the Randall County Jail or the Institutional Division of the Texas Department of Criminal Justice until he was released on bond pending appeal pursuant to Art. 44.04, Texas Code of Criminal Procedure. The date of release does not appear in the record before us. 2. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). d his back before Hendricks entered the cell is not evidence that appellant kept his hands there when Hendricks entered the cell and grabbed appellant's shirt to extricate appellant from the cell. Hendricks' testimony was clear and unequivocal that he did not pepper spray appellant until after he entered the cell and appellant struck him and knocked him back into the cell door. The admitted discrepancy between Hendricks' written report and his trial testimony as to whether appellant struck Hendricks with appellant's left fist or his right fist does not contradict Hendricks' unimpeached testimony that he did not spray appellant until after appellant hit him. The evidence does not raise the issue of self-defense and appellant was not entitled to an instruction on self-defense. Appellant does not assert that he was harmed by the instruction given by the trial court aside from his claim that the jury should have been charged with the instruction he requested. We overrule appellant's first issue. ISSUE 2: FAILURE TO CHARGE THE JURY ON A LESSER INCLUDED OFFENSE OF ASSAULT Appellant was indicted for ". . . intentionally and knowingly caus[ing] bodily injury to Randall Hendricks . . . and the defendant knew the said Hendricks was a public servant, . . . and the said offense was committed while Randall Hendricks was lawfully discharging an official duty . . . ." See PC § 22.01(b)(1). As in his first issue, appellant urges that there is some evidence that Deputy Hendricks pepper sprayed appellant before appellant hit Hendricks and that Hendricks' action was excessive force. Appellant reasons that because some evidence existed that Hendricks was using excessive force, then the record contained some evidence that Hendricks was not "lawfully discharging an official duty" because the use of excessive force is not lawful. He concludes that given such evidence, the jury could have found that even if he was guilty, he did not assault a public servant lawfully discharging an official duty and therefore he could only have been found guilty of assault. See PC § 22.01(a). Under provisions of Tex. Crim. Proc. Code Ann. art. 37.09 (Vernon 1981), (2) an offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Determining whether a charge on a lesser-included offense is warranted presents a dual inquiry. The first inquiry is whether the lesser offense is included within the proof necessary to establish the offense charged. See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993). If so, the second inquiry is whether there is some record evidence from which a jury could rationally find that if the defendant is guilty, he is guilty only of the lesser offense. Id. Each definition of a lesser-included offense in CCP art. 37.09 is stated with reference to "the offense charged," and specifically states the manner in which the lesser-included offense differs from the offense charged. See Bell v. State, 693 S.W.2d 434, 438 (Tex.Crim.App. 1985). Thus, in considering appellant's issues, we must consider the offense as charged by the language of the indictment and compare the charged offense with the statutory elements of the lesser-included offenses which appellant alleges should have been charged. Id. at 438, n.8; Sanders v. State, 664 S.W.2d 705, 708 (Tex.Crim.App. 1982) (op. on rehr'g.). The offense for which appellant was indicted included the elements of assault, see PC § 22.01(a)(1), together with the additional element prescribed by PC § 22.01(b) that appellant knew Hendricks was a public servant lawfully discharging an official duty. We have previously concluded that, even assuming, arguendo, that pepper spraying appellant before appellant hit him would have been use of excessive force by Hendricks and would have made his actions unlawful, the record does not contain any evidence that the pepper spraying of appellant took place before appellant hit Hendricks. Hendricks had his uniform on at the time of the incident, Hendricks had encountered appellant on prior occasions outside the jail and had then identified himself as a peace officer to appellant, and appellant does not assert that he did not know Hendricks was acting as a deputy sheriff. The evidence would not rationally have supported a finding that if appellant assaulted Hendricks, the assault was while Hendricks was acting otherwise than in lawful discharge of an official duty. Accordingly, the jury could not have rationally convicted appellant only of assault. See PC § 22.01(b)(1); Lavern, 48 S.W.3d at 361-62. We overrule appellant's second issue. ISSUES 3 and 4: LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE By his third and fourth issues, appellant urges that the evidence was legally and factually insufficient to support his conviction. He briefs and argues the issues together, and we will address them together. Appellant identifies three areas of allegedly insufficient evidence: (1) legal insufficiency that Hendricks was lawfully discharging an official duty when appellant hit him; (2) factual insufficiency that Hendricks suffered a bodily injury from appellant's actions; and (3) factual insufficiency that appellant hit Hendricks. Evidence to support a conviction is legally sufficient if, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clewis v. State, 922 S.W.2d 126, 132 (Tex.Crim.App. 1996). All the evidence is reviewed, but evidence that does not support the verdict is disregarded. See, e.g., Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Factual sufficiency review of the evidence begins with the presumption that the evidence supporting the jury's verdict was legally sufficient under the Jackson test. Clewis, 922 S.W.2d at 134. Factual sufficiency review is accomplished without viewing the evidence in the light most favorable to the prosecution, as the evidence is viewed in determining legal sufficiency. Id. The evidence is factually sufficient to support the verdict if the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. Stated otherwise, the evidence is not factually sufficient to support a conviction if the appellate court determines, after viewing all the evidence, both for and against the finding in a neutral light, that the proof of guilt is so obviously weak as to undermine the confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In undertaking review of evidentiary sufficiency challenges, we are mindful that the jury is the sole judge of the weight and credibility of the evidence. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We will first address appellant's factual sufficiency challenge to evidence that appellant hit Hendricks and thus assaulted Hendricks, regardless of whether Hendricks was acting lawfully or unlawfully. Appellant urges that the evidence of appellant's striking Hendricks is so inconclusive and conflicting on the question that the jury's finding is clearly wrong and unjust. We disagree. Hendricks testified clearly that appellant hit him and knocked him into the cell door. He testified that the next morning he had a bruise on his back where he hit the cell door, had pain in his shoulder, and had limited motion of his shoulder. He attributed all of the symptoms, bruising and physical limitations to appellant's striking him. Although Hendricks filed a report shortly after the incident and stated that appellant used his left fist in hitting him, even though appellant actually used his right fist, Hendricks at no time equivocated as to whether appellant hit him. Tribble testified that he did not have a good view of appellant and Hendricks when the incident occurred because of Tribble's position outside the cell. Tribble's statement that he did not see appellant strike Hendricks does not contradict Hendricks' testimony. In any event, conflicts in testimony and matters of credibility are for the jury to resolve. We conclude that after viewing all the evidence, both for and against the finding in a neutral light, that the proof of guilt is not so obviously weak as to be greatly outweighed by contrary proof. Thus, we conclude that the evidence that appellant struck Hendricks is factually sufficient. See Johnson, 23 S.W.3d at 11. We next consider the factual sufficiency of the evidence to support a finding that Hendricks suffered bodily injury from appellant's actions. Appellant's challenge is based on Hendricks' testimony that he did not have pain on the evening of December 18th and that he sought no medical attention, together with the inconsistency in Hendricks' description of which hand appellant used to strike him. Bodily injury is defined by the Penal Code as meaning physical pain, illness, or any impairment of physical condition. See PC §1.07(a)(8). The Penal Code definition of "bodily injury" encompasses even relatively minor physical contacts. See Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App. 1989). Hendricks testified, and was thoroughly cross-examined, about his physical condition as a result of the confrontation with appellant. There is no evidence or testimony that he had impairment of his shoulder, pain in the shoulder or bruising on his back before the jailhouse incident with appellant. He attributed his soreness, stiffness, limitation of motion and bruising which he noted on the following day to the episode with appellant. The Penal Code does not place a time limit on when manifestations of bodily injury are required to appear. Nor do we, under these circumstances. The causal relationship between the incident and Hendricks' bruise, pain and limitation of motion was for the jury to resolve. The jury's finding of a causal connection is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 134. The evidence is factually sufficient to support a finding that appellant's actions caused bodily injury to Hendricks. Appellant's legal sufficiency challenge to evidence that Hendricks was lawfully discharging an official duty when appellant hit him refers, in part, to his arguments under issues one and two. In our analysis of such issues we have referenced Hendricks' testimony as to the sequence of events culminating in the pepper spraying of appellant. We need not repeat that analysis. We conclude, after viewing the evidence in the light most favorable to the prosecution, that a rational trier of fact could have found Hendricks was discharging a lawful duty when appellant hit him, and the evidence of such element of the crime is legally sufficient. See Jackson, 443 U.S. at 319; Clewis, 922 S.W.2d at 132. Appellant's third and fourth issues are overruled. ISSUE 5: VIOLATION OF SIXTH AMENDMENT RIGHT BY RACIAL MAKEUP OF JURY VENIRE Appellant's fifth issue asserts that his rights under the Sixth Amendment to the federal constitution were violated by the small percentage of African-American members in the jury venire. He refers us to Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), Pondexter v. State, 942 S.W.2d 577 (Tex.Crim.App. 1997), and their progeny, as authority. In doing so, appellant recognizes that authority places the burden on him to prove, as part of his prima facie showing of a fair cross-section requirement violation, that the underrepresentation of a distinctive group in the jury venire is due to systematic exclusion of members of the group by the venire-selection process. See Duren v. Missouri, 439 U.S. 357, 364, 366, 99 S.Ct. 664, 668-69, 58 L.Ed.2d 579 (1979); Pondexter, 942 S.W.2d at 580-81. He does not claim that he proved a systematic exclusion of African-Americans from the venire. Rather, he asserts that simply proving underrepresentation of African-Americans on the venire should suffice to meet his burden under the facts of his case. We disagree. In considering appellate issues based on the federal constitution we follow the guidance of the United States Supreme Court. See State v. Guzman, 959 S.W.2d 631, 633 (Tex.Crim.App. 1998). And, it is axiomatic that intermediate Texas appellate courts have the duty to follow pronouncements of the Texas Court of Criminal Appeals. See Flores v. State, 883 S.W.2d 383, 385 (Tex.App.--Amarillo 1994, pet. ref'd). Both the United States Supreme Court and the Court of Criminal Appeals have held that in order to establish a prima facie violation of the requirement that a fair cross section of the community be represented in the venire, appellant must show that: 1) the group alleged to be excluded is a "distinctive" group in the community; 2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) this underrepresentation is due to systematic exclusion of the group in the jury venire selection process. See Duren, 439 U.S. at 364, 99 S.Ct. at 668; Pondexter, 42 S.W.2d at 580. Despite appellant's argument that, as a practical matter, the systematic exclusion of African-Americans can never be proved in certain counties such as Childress county, we are not at liberty to disregard decisions by the United States Supreme Court or the Texas Court of Criminal Appeals. Appellant did not prove the third required element that the alleged underrepresentation was due to a systematic exclusion of African-Americans. We overrule appellant's fifth issue. ISSUE 6: INSTRUCTION TO DISREGARD EVIDENCE OF EXTRANEOUS OFFENSES By his sixth issue, appellant complains of the trial court's failure to grant a mistrial following testimony by Hendricks that Hendricks had arrested appellant "a couple of times" before the incident for which appellant was indicted. Such testimony by Hendricks violated a pretrial motion in limine which was granted. The testimony was timely objected to by appellant. (3) The trial court sustained the objection, directed that the testimony be stricken from the record and instructed the jury that the testimony was not to be considered for any purpose. Appellant's motion for mistrial was denied. Denial of a motion for mistrial is reviewed under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. When testimony is interjected, deliberately or inadvertently, which has no relevance to any material issue in the case and which is potentially prejudicial to the accused, appellate courts presume that an instruction to disregard the evidence will be obeyed by the jury. See Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.), cert. denied, 484 U.S. 905, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987). Exceptions to the rule are those extreme cases where it appears that the evidence or other potentially prejudicial event is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the jury. Id. We find guidance as to appellant's contention in Coe v. State, 683 S.W.2d 431 (Tex.Crim.App.1984) and Kelley v. State, 677 S.W.2d 34, 36 (Tex.Crim.App.1984). In Coe, defense counsel asked an officer who conducted a lineup if two particular witnesses had made a positive identification of the defendant. The officer replied "No, sir; they were the complaining witnesses in the other robberies." The Court of Criminal Appeals held that denial of defendant's motion for a mistrial was not reversible error. See Coe, 683 S.W.2d at 435-36. The defendant in Kelley was convicted of aggravated robbery. He was apprehended upon suspicion of driving while intoxicated. The arresting officer testified that he believed appellant was under the influence of drugs, in part because he saw needle marks on defendant's arm. An instruction for the jury to disregard the reference to the extraneous offense was held sufficient to cure any error. See Kelley, 677 S.W.2d at 36. The testimony of Hendricks did not include the bases for appellant's prior arrests, nor any other information in connection with them. The trial court promptly had the jury removed from the courtroom to consider appellant's objection. When the jury was brought back into the courtroom, the judge instructed the jury that the testimony was to be disregarded and not to be considered for any purpose. In the presence of the jury he ordered the testimony stricken from the record. The trial court was able to observe the demeanor of the witness, the atmosphere in the courtroom, the reactions, if any, of the jurors, and gauge the effect of the court's actions and instruction on the jury in light of the status of the evidence and the nature of the charges against appellant. We do not believe the trial court abused its discretion in concluding that the instruction cured any potential prejudice from the testimony. See Ladd, 3 S.W.3d at 567; Kelley, 677 S.W.2d at 36. Appellant additionally asserts that the trial court's instruction as it was given constituted error because it implied that a proper purpose existed for Hendricks' testimony. However, appellant did not object on such basis in the trial court. To preserve error for review, a litigant must timely object and state the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context of the objection. See Tex. R. App. P. 33.1(a)(1)(A). The trial court was not afforded opportunity to rule on the contention made on appeal, and we decline to consider it. Id. We overrule appellant's sixth issue. CONCLUSION Having overruled appellant's six issues, we affirm the judgment of the trial court. Phil Johnson Justice Do not publish. 1. Further reference to a provision of the Penal Code will be by reference to "PC § _." 2. Further references to a provision of the Code of Criminal Procedure will be by reference to "CCP art. _." 3. Motions in limine do not preserve error. See Webb v. State, 760 S.W.2d 263, 275 (Tex.Crim.App. 1988). This is true whether the motion is granted or denied. See Willis v. State, 785 S.W.2d 378, 384 (Tex.Crim.App. 1989); Webb, 760 S.W.2d at 275.