Alex Lake Webber v. State

Webber v. State IN THE TENTH COURT OF APPEALS No. 10-91-028-CR         ALEX LAKE WEBBER,                                                                               Appellant         v.         THE STATE OF TEXAS,                                                                               Appellee From the 82nd District Court Robertson County, Texas Trial Court # 13,547-B                                                                                                                                                                                      O P I N I O N                                                                                                                Appellant was convicted in municipal court of disorderly conduct stemming from a fight that occurred July 8, 1990, and assessed a $150 fine. See Tex. Penal Code Ann. § 42.01 (Vernon Supp. 1992). He "worked out" the fine with a city work crew. Subsequently, he was indicted for aggravated assault—i.e., "intentionally or knowingly cause[ing] serious bodily injury to James Arthur Owens by stabbing him with a knife"—based on the July 8 incident. See id. at § 22.02(a)(1). He complains by a writ of habeas corpus that his previous conviction for disorderly conduct is a bar to his subsequent prosecution for aggravated assault. See U.S. Const. amend. V. We will affirm.           The State contends that double jeopardy does not attach because the municipal court judgement was void. However, if the defendant has suffered the full punishment imposed on him by the first court for the same crime or a lesser-included offense of the one he is now being prosecuted for, he may not be punished again regardless of the validity of the first judgement. Corbett v. State, 63 Tex. Crim. 478, 140 S.W. 342, 343 (1911). Because Appellant "worked off" the full $150 fine imposed by the municipal court, a subsequent prosecution for the same offense would be barred by double jeopardy even if the judgment were void.           The fifth amendment guarantees that "[n]o person shall be subject for the same offense to be twice put in jeopardy of life or liberty." See U.S. Const. amend. V. A defendant has the burden of producing evidence to support his allegation of former jeopardy. Shaffer v. State, 477 S.W.2d 873, 875 (Tex. Crim. App. 1971). If he shows by a preponderance of the evidence that an indictment charges him with an offense for which he was formerly placed in jeopardy, the burden then shifts to the state to establish that there were two separate offenses. Grady v. Corbin, -- U.S. --, 110 S.Ct. 2084, 2094, 109 L.Ed.2d 548 (1990); Tex. Code Crim. Proc. Ann. art. 27.05 (Vernon 1989).           To determine whether a subsequent prosecution is barred by double jeopardy, we must first decide whether each offense requires proof of an additional fact that the other does not. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). If the two offenses have identical statutory requirements or one is simply a lesser-included offense of the first, then the second prosecution is barred. Grady, 110 S.Ct. at 2090. If, however, the second prosecution survives the Blockburger test, we must decide if "the government . . . will prove conduct that constitutes an offense for which the defendant has already been prosecuted." See id. at 2093. Thus, "the critical inquiry is what conduct the state will prove, not the evidence the state will use to prove that conduct." Id. If the same conduct will be used to prove both offenses, the Double Jeopardy Clause bars the second prosecution. Id. In Grady, the Court held that a subsequent prosecution for driving while intoxicated was barred by double jeopardy because the state admitted that it would prove the entirety of the conduct for which the defendant had been convicted in the first prosecution to establish an essential element of the second prosecution. Id. at 2094.           The Court of Criminal Appeals has interpreted Grady as requiring a three-part inquiry: (1) whether the underlying conduct constitutes an offense; (2) whether the defendant has been prosecuted for this offense; and (3) whether this criminal conduct will be used to establish an essential element of the subsequent offense. Ex parte Ramos, 806 S.W.2d 845, 847 (Tex. Crim. App. 1991). Only if all three of these inquiries are answered affirmatively is the latter prosecution barred. Id. However, nothing precludes the prosecution of multiple criminal offenses arising from the same transaction. See, e.g., State v. Houth, 810 S.W.2d 852, 855 (Tex. App.—Houston [1st Dist.] 1991, pet. granted) (holding that a prosecution for failing to drive in a single, marked lane did not bar a subsequent prosecution for driving while intoxicated which arose from the same set of facts); State v. Garcia, 810 S.W.2d 240, 241 (Tex. App.—El Paso 1991, no pet.) (holding that a conviction for running a red light did not bar a subsequent prosecution for driving while intoxicated; although driving was an element of both offenses, driving in and of itself was not "conduct that constitutes an offense for which the defendant has already been prosecuted"); Kvetinskas v. State, 809 S.W.2d 914, 915 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (holding that a prior prosecution for speeding does not bar a subsequent prosecution for driving while intoxicated). In all of these cases, each of the first offenses could be committed without committing the second, and each of the second offenses could be committed without the first.           Appellant was charged with disorderly conduct and then aggravated assault. Thus, he had to prove by a preponderance of the evidence that (1) the two offenses have identical statutory requirements; (2) one offense is a lesser-included offense of the other; or (3) the State will prove conduct that constitutes an offense for which he had already been prosecuted. See Grady, 110 S.Ct. 2090-93.           Disorderly conduct means a person intentionally or knowingly fights with another in a public place. Tex. Penal Code Ann. § 42.01(a)(6) (Vernon Supp. 1992). Aggravated assault requires that the actor intentionally, knowingly, or recklessly cause serious bodily injury to another. Id. at §§ 22.01(a)(1), 22.02(a)(1) (Vernon 1989 and Vernon Supp. 1992). The two offenses do not have identical statutory requirements. Furthermore, disorderly conduct is not a lesser-included offense of aggravated assault because each offense "requires proof of additional facts which the other does not." See Blockburger, 52 S.Ct. at 182.           Therefore, we must consider what conduct the State will use to prove the underlying offenses. See Grady, 110 S.Ct. at 2093. The State does not necessarily have to prove Appellant fought in a public place to establish the aggravated assault. Unlike Grady, the State never admitted it would use the fighting to prove aggravated assault. Id. at 2094. Thus, Appellant never discharged his burden by a preponderance of the evidence.           We overrule point one and affirm the judgment.                                                                                   BOB L. THOMAS                                                                                  Chief Justice Before Chief Justice Thomas,           Justice Cummings, and           Justice Vance Affirmed Opinion delivered and filed January 15, 1992 Do not publish .... Martinez: I, I ain’t gonna let ’ya sit there (unclear) I’m sayin’, do you wanna talk about this? I just need to know before I, I ask ’ya anymore questions. ’Cause I’ve got a lotta questions I need to ask you. Is that alright wit’ you? mcafee, reginald: but what I’m tryin’ to get you to under­stand, (sighs) if it’s somethin’ to do wit’ that I, hey I, I don’t shit about that. only thing.... martinez: I, I.... mcaffee, reginald: ...I know is what I see in the paper. Martinez: what I’m askin’ you, in reference to your rights, it’s real simple. are you willin’ to talk to us? I’m not sayin’ you willin’ to confess. are you willin’ to talk to us about this? mcafee, reginald: about what? martinez: about what i’m gonna ask you about, about the cir­cumstances that we have surroundin’ this warrant. (pause) mcafee, reginald: what is it about? martinez: it’s aggravated robbery at western union. mcafee, reginald: i don’t know nothin’ ’bout that. martinez: okay you, you’re missin’ my point. it’s real simple. mcafee, reginald: if i said (unclear) to what, no ’cause i don’t know what to say. martinez: okay, but you, you don’t wanna answer ques­tions? mcafee, reginald: pertainin’ to? martinez: pertainin’ to circumstances. mcafee, reginald: man.... martinez: now listen, let’s not play this game. man, you been down before, i do.... mcafee, reginald: i don’t know... martinez: ....(unclear....talking at the same time).... mcafee, reginald: .....(unclear...) tellin’, and i’m tellin’ you. martinez: okay. mcafee, reginald: (chair squeaking) that if it’s got some­thin’ to do with what the fuck he did, i don’t know nothin’ about what the fuck he did man.. martinez: and you’re missin’ the point i’m makin’ here. I’m not askin’ you to tell me that do or don’t know. i just have questions that i need clarified. if you’re willin’ to ans­wer the questions, that’s your business, i need to know if it’s yes or no. mcafee, reginald: okay. martinez: that, is that a yes? mcafee, reginald: yeah. [sic] (State’s Ex. D3, at 5-6 (ellipses in orig.).)      At the hearing on the motion to suppress, the interrogating officers testified that they had not understood McAfee to have been asserting his privilege against self-incrimination, but to have been denying involvement in the robbery. McAfee did not testify. The trial court found:      In reviewing the videotape, I do think that there was some misunderstanding, some differing view of what questions were being asked and what questions were being answered. Viewed in the context of the entire conversation that went on back and forth, I do not believe that at that point in time Mr. McAfee had closed the door on any interrogation . . . .      Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that the trial court did not abuse its discretion in overruling McAfee’s motion to suppress McAfee’s statement. We overrule McAfee’s second issue.      Video Tape. In McAfee’s third issue, he contends that the trial court erred in overruling McAfee’s motion to suppress a video recording of McAfee eating part of a tissue that had McAfee’s blood on it. McAfee argues that he ate the tissue to avoid its being used as a specimen of his DNA, and that his act constituted an invocation of his privilege against warrantless searches.      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV; see Tex. Const. art. I, § 9. The taking of a blood specimen constitutes a search and seizure for Fourth Amendment purposes. Schmerber v. California, 384 U.S. 757, 766-72 (1966); accord State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997); Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. [Panel Op.] 1982). “The invocation of constitutional rights such as . . . freedom from unreasonable searches may not be relied upon as evidence of guilt. To permit the use of such evidence for purposes of incrimination would erode the protections guaranteed by both state and federal constitutions.” Reeves v. State, 969 S.W.2d 471, 493 (Tex. App.—Waco 1998, pet. ref’d) (quoting Powell v. State, 660 S.W.2d 842, 845 (Tex. App.—El Paso 1983, no pet.)); see Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991). Appellate courts, however, find a violation on the prohibition against evidence of the assertion of a privilege only when the defendant expressly asserts the privilege or the defendant’s actions lead to the inescapable conclusion that the defendant thereby asserted a privilege. See Raffaelli v. State, 881 S.W.2d 714, 717 (Tex. App.—Texarkana 1994, pet. ref’d); Dumas v. State, 812 S.W.2d 611, 614 (Tex. App.—Dallas 1991, pet. ref’d); Torres v. State, No. 14-97-01211-CR, 1999 Tex. App. LEXIS 8973, at *7 (Tex. App.—Houston [14th Dist.] Dec. 2, 1999, pet. ref’d) (not designated for publication). Viewing the evidence in the light most favorable to the trial court’s finding, we hold that the trial court did not abuse its discretion in overruling McAfee’s motion to suppress the video tape. We overrule McAfee’s third issue.      Charge. In McAfee’s fourth issue, he contends that the trial court erred in overruling McAfee’s objection to the trial court’s charge. The court instructed the jury “that an officer need not stop his questioning unless the defendant’s invocation of rights is unambiguous.” McAfee argues that the instruction constituted a comment on the weight of the evidence.      “[I]n each felony case . . . , the judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case[,] not expressing any opinion as to the weight of the evidence, . . . summing up the testimony, [or] discussing the facts . . . .” Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2005); see also id. art. 38.05 (Vernon 1979) (judge shall not “at any stage of the proceeding previous to the return of the verdict[] make any remark calculated to convey to the jury his opinion of the case”). “The primary reason for the rule is that an instruction ‘by the trial judge to the jury on the weight of the evidence reduces the State’s burden of proving guilt beyond a reasonable doubt to the jury’s satisfaction.’” Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 938 (2004). “A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence and is erroneous.” Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986). “[A] court’s jury instruction could violate article 36.14” by “obliquely or indirectly convey[ing] some opinion on the weight of the evidence by singling out that evidence and inviting the jury to pay particular attention to it. On this near end of the ‘improper-judicial comment’ spectrum is an instruction that is simply unnecessary and fails to clarify the law for the jury.” Brown at 801. “An instruction that focuses on a particular factor that may render a statement involuntary is an impermissible comment on the weight of the evidence.” Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000). “Even a seemingly neutral instruction about a particular type of evidence constitutes an impermissible comment on the weight of the evidence in violation of Article 36.14 because such an instruction singles out a particular piece of evidence for special attention.” Id. “To constitute reversible error, the trial court’s comment to the jury must be such that it is reasonably calculated to benefit the State or to prejudice the rights of the defendant.” Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App. [Panel Op.] 1986); accord Blue v. State, 41 S.W.3d 129, 134 (Tex. Crim. App. 2000); Moore v. State, 505 S.W.2d 842, 844 (Tex. Crim. App. 1974).      “If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more than that there must be some harm to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g) [(quoting Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981))]; accord Brown, 122 S.W.3d at 803.      McAfee timely objected to the charge. We assume without deciding that the trial court erred.      In assessing the likelihood that the jury’s decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. The reviewing court might also consider the jury instruction given by the trial judge, the State’s theory and any defensive theories, closing arguments and even voir dire, if material to appellant’s claim. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). “[W]hen conducting a harm analysis” of charge error, “the reviewing court may consider the following four factors: 1) the charge itself; 2) the state of the evidence including contested issues and the weight of the probative evidence; 3) arguments of counsel; and, 4) any other relevant information revealed by the record of the trial as a whole.” Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); accord Almanza, 686 S.W.2d at 171.      The charge as a whole is unexceptional. It includes an instruction on the voluntariness of McAfee’s statement. The statement was of little importance at trial. In it, McAfee did not admit to participation in the offense. The State referred to the statement once, in opening statement, and only with reference to McAfee’s alibi. Accordingly, any charge error was harmless. We overrule McAfee’s fourth issue.      Having overruled McAfee’s issues, we affirm. TOM GRAY Chief Justice Before Chief Justice Gray,      Justice Vance, and      Justice Reyna Affirmed Opinion delivered and filed April 26, 2006 Do not publish [CRPM] [1] The State introduced a copy of the Bryan Police Department offense report, which contained a transcription of officers’ interview of McAfee. Both McAfee and the State quote and cite the transcription as authoritative, and neither questions its accuracy.