Leon Calvin Porter II v. State

Leon Calvin Porter II v. State IN THE TENTH COURT OF APPEALS No. 10-02-056-CR LEON CALVIN PORTER, II, Appellant v. THE STATE OF TEXAS, Appellee From the Criminal District Court 5 Dallas County, Texas Trial Court # F01-36865 MEMORANDUM OPINION A grand jury presented an indictment against Leon Calvin Porter, II for the felony offense of aggravated assault. Porter pleaded guilty to the lesser-included misdemeanor offense of terroristic threat. Pursuant to a plea agreement, the court sentenced Porter to 180 days in jail and a $1,000 fine. Porter appealed. Porter filed a general notice of appeal from his plea-bargained misdemeanor conviction. Because he filed a general notice of appeal, we have jurisdiction to consider only: (1) jurisdictional issues; (2) issues on which the trial court has granted permission to appeal; and (3) issues raised by written pre-trial motion. See Russell v. State, 74 S.W.3d 887, 890 (Tex. App.—Waco 2002, pet. ref’d). Porter contends in a single point that the evidence is legally insufficient to support his conviction. This is not an issue which we have jurisdiction to address. Id. Accordingly, we dismiss the point for want of jurisdiction. See Morfin v. State, 34 S.W.3d 664, 668-69 (Tex. App.—San Antonio 2000, no pet.); Ferguson v. State, 927 S.W.2d 251, 254 (Tex. App.—Fort Worth 1996, pet. ref’d) (per curiam); Meisner v. State, 907 S.W.2d 664, 666 (Tex. App.—Waco 1995, no pet.); see also White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001) (“Dismissal of an issue . . . is appropriate unless the form of the notice of appeal is proper to perfect appeal as to the issue . . . .”). We affirm the judgment. See Morfin, 34 S.W.3d at 669; Ferguson, 927 S.W.2d at 254; see also Meisner, 907 S.W.2d at 669 (reversing judgment on merits of point which court had jurisdiction to address). PER CURIAM Before Chief Justice Davis Justice Vance and Justice Gray Affirmed Opinion delivered and filed October 16, 2002 Publish [CR25] ssessed punishment at sixty years in prison. On appeal, Montgomery complains that (1) his motion to change venue due to prejudice from pretrial publicity should have been granted, and (2) because of the acquittal in the first trial, his prosecution was barred by double jeopardy. Change of Venue Montgomery filed a pre-trial motion to change venue, to which were attached affidavits of Montgomery’s sister and former father-in-law stating that Montgomery could not get a fair trial in the county. Tex. Const. art. III, § 45; Tex. Code Crim. Proc. Ann. art. 31.03 (Vernon 1989). The State filed controverting affidavits, and the trial court held a hearing. Tex. Code Crim. Proc. Ann. art. 31.04 (Vernon 1989). Montgomery introduced a newspaper article from the leading newspaper in the county that said he and two others escaped from the county jail and had been apprehended; the article also said Montgomery was in jail at the time of the escape because he was indicted for aggravated sexual assault on a six-year-old girl. Montgomery’s former father-in-law testified that people in the county told him, after they read the article, that they thought Montgomery was guilty. The State countered with a banker, an attorney, and an insurance agent who testified they had not read the article or heard people in the county talk about Montgomery’s case, and that they believed Montgomery could get a fair trial in the county. If the accused raises “substantial doubts about obtaining an impartial jury” because of “widespread inflammatory news coverage,” the constitutional right to a fair trial is implicated. Phillips v. State, 701 S.W.2d 875, 879 (Tex. Crim. App. 1985) (citing Bell v. State, 582 S.W.2d 800, 810-11 (Tex. Crim. App. 1979)). Voir dire is not always an effective safeguard: “Prejudice is a sinister quality. It may possess a man and he not be aware of it; or, being aware of it, he may purposely conceal it, in order that he may vent his revenge.” XXX v. State, 576 S.W.2d 66, 71 (Tex. Crim. App. 1978) (citing Faulkner v. State, 43 Tex. Cr. 311, 65 S.W. 1093 (1901)). We review the trial court’s ruling for abuse of discretion, measured by whether the accused proved “such prejudice in the community that the likelihood of obtaining a fair and impartial trial is dubious.” Phillips, 701 S.W.2d at 879; Neumuller v. State, 953 S.W.2d 502, 507 (Tex. App.—El Paso 1997, pet. ref’d). But publicity in the news alone will not support a change of venue. Willingham v. State, 897 S.W.2d 351, 357 (Tex. Crim. App. 1995); Phillips, 701 S.W.2d at 879 (citing Freeman v. State, 556 S.W.2d 287, 297 (Tex. Crim. App. 1977)). In addition, prospective jurors are not required to be completely ignorant of the facts and issues. Id. Also, effective voir dire, to screen against prospective jurors who might have been prejudiced by the news, weighs against a finding of abuse of discretion. Id. at 880. We do not find Montgomery’s evidence—a single newspaper article and the testimony of a former relative—persuasive that he could not empanel a fair jury. E.g., Salazar v. State, 38 S.W.3d 141, 150 (Tex. Crim. App. 2001). Also, during voir dire, prospective jurors who expressed already-formed opinions about Montgomery’s guilt were successfully challenged for cause. The trial court did not abuse its discretion in denying the motion. We overrule the complaint. Double Jeopardy The outcome of Montgomery’s complaint is determined by Vick v. State, 991 S.W.2d 830 (Tex. Crim. App. 1999). Vick was tried and acquitted of penetrating a child’s sexual organ with his sexual organ. Id. at 831; Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i). But then he was indicted again, this time for causing the child’s sexual organ to contact his mouth. Vick, 991 S.W.2d at 833; Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii). The Court rejected Vick’s claim of double jeopardy. It explained that the usual test for a violation of the United States and Texas constitutional provisions about double jeopardy, the Blockburger test, did not apply. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); U.S. Const. amend. V; Tex. Const. art. I, § 14; Tex. Code Crim. Proc. Ann. arts. 1.10, 1.11 (Vernon 1977), 27.05, 28.13 (Vernon 1989). That test is used when two criminal statutes pertain to the same “act or transaction.” Vick, 991 S.W.2d at 833. In that event, the test is whether each offense requires proof of an element the other does not. Id. at 833 n.1. If so, then double jeopardy is not violated. But when, as here, a single criminal statute applies, the inquiry is whether the subparts of the statute were intended by the Legislature to be separate statutory offenses, or only different means of committing a single offense. Id. at 832. The Court concluded that the subparts of section 22.021 were intended to be separate offenses because they describe separate and distinct acts or conduct. Id. at 833. Applying Vick, the second indictment alleged an offense different from the one alleged in the first indictment. Therefore, double jeopardy was not violated. The complaint is overruled. Montgomery additionally argues that the first trial works a “collateral estoppel” on the second. E.g., Dedrick v. State, 623 S.W.2d 332 (Tex. Crim. App. 1981). Specifically, he says that K.R. testified in the first trial that Montgomery caused her sexual organ to come into contact with his mouth, which is what he was indicted for the second time. Therefore, because he was acquitted in the first trial, the issue of his conduct in the second trial had been determined. We fail to understand Montgomery’s reasoning. He was undoubtedly acquitted in the first trial because the evidence, K.R.’s testimony, was different from the conduct alleged in the indictment. However, the State reindicted him for the conduct K.R. testified about in the first trial. We find no “collateral estoppel” issue. Conclusion Having overruled Montgomery’s complaints, we affirm the judgment. BILL VANCE Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed Opinion delivered and filed May 1, 2002 Do not publish [CRPM]