Gary Shane Kinkaid v. State

IN THE TENTH COURT OF APPEALS No. 10-04-00368-CR Gary Shane Kinkaid, Appellant v. The State of Texas, Appellee From the 40th District Court Ellis County, Texas Trial Court No. 27777CR DISSENTING Opinion I dissent. The majority fails to distinguish deferred-adjudication community supervision from regular community supervision or imprisonment. See Saffell v. State, Nos. 05-03-01549-CR & 05-03-01550-CR, 2005 WL 289349, at *3 (Tex. App.—Dallas Feb. 8, 2005, no pet.) (not designated for publication) (mem. op.) (distinguishing imprisonment from deferred-adjudication community supervision); cf. Rivers v. State, 99 S.W.3d 659 (Tex. App.—Waco 2003, no pet.) (regular community supervision). “The purpose of a trial court’s making an affirmative finding of a deadly weapon is to aid in calculating a prisoner’s parole-eligibility date.” Johnson v. State, No. 05-00-00464-CR, 2002 WL 1788002, at *3 (Tex. App.—Dallas Aug. 5, 2002, no pet.) (not designated for publication); accord Sampson v. State, 983 S.W.2d 842, 843 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). “An affirmative finding of a deadly weapon is not applicable to an order of deferred adjudication because parole eligibility applies to persons who are imprisoned.” Sampson at 843 (citing Tex. Gov’t Code Ann. § 508.145(d) (Vernon [2004])); Johnson at *3. “If a trial court determines that a defendant has violated the terms of his deferred adjudication and assesses imprisonment as a punishment, the trial court is required to enter any affirmative finding of a deadly weapon in its order adjudicating guilt.” Sampson at 843-44 (citing Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. [2005])); accord Johnson at *3. “The finding would have had no legal consequence at the earlier stage in the proceedings, so it was not required to be entered at that time.” 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 38.110, at 738 (2d ed. 2001). TOM GRAY Chief Justice Dissenting opinion delivered and filed December 14, 2005 Publish [CR25] razos address. Appellant and Douglas Bledsoe arrived to receive the shipment. Appellant signed for five more printers and gave the UPS man a purported "certified check," which was also bogus. At this point the police, who had been alerted and were watching from closeby, came onto the scene and arrested Appellant and Bledsoe. Appellant was indicted for theft by deception of five computer printers. Trial was to a jury which convicted Appellant and sentenced him to five years in prison. In the punishment phase three prior felony and one prior misdemeanor convictions were proved on Appellant. Additional facts will be recited in the discussion of Appellant's points. Appellant appeals on 24 points of error. Point 1: "The trial court committed reversible error by overruling Appellant's objection to the trial court ordering him to trial in Cause No. 664772, Notice Ground." Appellant was arrested on October 31, 1990, released on bail on November 1, 1990, and indicted in Cause No. 579970 on January 1, 1991. The indictment reads in pertinent part: [In] Harris County, Texas, Sherman Wilson . . . heretofore on or about October 31, 1990, did then and there unlawfully appropriate by deception, property, namely Five Computer Printers, owned by David Kroll, hereafter styled the complainant, of the value of over $750 and under $20,000, with the intent to deprive the complainant of the property, and without the effective consent of the complainant. Appellant remained free on bail. Cause No. 579970 was set some 20 times. On May 19, 1993, Appellant was reindicted in Cause No. 664772, the instant case. The only difference in the two indictments is that the name of David Kroll was changed to Emily Spicer in the reindictment. Appellant's trial was set for August 2, 1993. The court held that all of Appellant's prior motions filed in Cause No. 579970 would apply in the reindictment Cause No. 664772, the instant case. Appellant contends the trial court erred in overruling his objection to proceeding to trial on the ground that he did not have notice of cause in No. 664662. Article 25.03, Texas Code of Criminal Procedure, provides "where an accused, in the case of felony, is on bail at the time the indictment is presented, it is not necessary to serve him with a copy." Parra Gonzales v. State, 756 S.W.2d 413, 415 (Tex. App.—El Paso 1988). Here, Appellant was reindicted on May 19, 1993. He was free on bond at the time. His trial began August 2, 1993, three months after the reindictment. The State's file was open and available to Appellant from the beginning of the case. Because Appellant was out on bond he was not entitled to be served with a copy of the reindictment. Point 1 is overruled. Points 2, 3 and 6: "The trial court committed reversible error by overruling Appellant's objection to the trial court ordering the undersigned lawyer to represent Appellant in Cause No. 664772." Appellant contends he was harmed because his attorney was forced by the trial court to represent him. He alleged violation of the Thirteenth Amendment which prohibits involuntary servitude; that his attorney was employed in Cause No. 579970 but was forced to represent him in Cause No. 664662; that he was deprived of his right to counsel of choice. There is no evidence to support Appellant's contention that his counsel was forced to represent him. His counsel was not appointed by the court; he was not held in contempt for saying he would not represent Appellant; his counsel filed no motion to withdraw; there is no evidence the trial judge prohibited Appellant's counsel from leaving the court area; Appellant never stated he did not want his counsel to continue; and Appellant raises no issue of ineffective assistance of counsel. The original indictment had been carried on the trial docket for almost three years. Appellant's counsel was retained by Appellant at the beginning of the case. When Appellant was reindicted the only change was in the name of the complaining witness, a person employed by Swan Technologies, the company from which the computers were ordered. Appellant's points 2, 3 and 6 are overruled. Point 4: "The trial court committed reversible error by overruling Appellant's objection to the trial court ordering Appellant to trial in Cause No. 664772. Article 27.11 Ground." Appellant argues that Article 27.11, Texas Code Criminal Procedure, which provides, "in all cases the defendant shall be allowed ten entire days . . . after his arrest to file written pleadings," gives him an additional ten-day period before trial. Appellant was not arrested on August 2, 1993. The reindictment was filed on May 19, 1993. Appellant was free on bail at that time for the same offense. The reindictment did not allege a different offense. The only change in the reindictment was the change in the name of the alleged owner of the property. An allegation of ownership is a rule of pleading and is not a part of the definition of the offense of theft. Because a corporation cannot itself testify to give direct testimony of ownership, it is proper and the better practice to allege both ownership and lack of consent in a natural person who acted for the corporation. Freeman v. State, 707 S.W.2d 597, 603, 605 (Tex. Crim. App. 1986). Appellant's trial began nearly three months after the reindictment. Article 27.11 is inapplicable to reindictments when the reindictment is filed more than ten days before the defendant's trial begins. Trevino v. State, 900 S.W.2d 815, 817 (Tex. App.—Corpus Christi 1995, no pet.). Point 4 is overruled. Point 5: "The trial court committed reversible error by overruling Appellant's objection to the trial court ordering Appellant to trial in Cause No. 664772. Article 26.03 Ground." Appellant contends his arraignment was two days premature pursuant to Article 26.03, Texas Code Criminal Procedure. Article 26.03 provides: "No arraignment shall take place until the expiration of at least two entire days after the day on which a copy of the indictment was served on the defendant, unless the right to such copy or to such delay be waived, or unless the defendant is on bail." Because Appellant was free on bail at the time of reindictment, Article 26.03 is inapplicable. Point 5 is overruled. Point 7: "The trial court committed reversible error by overruling Appellant's objection to the trial court ordering the undersigned lawyer to represent Appellant in Cause No. 664772. Article I Section 3. Ground, Equal Rights." Specifically, Appellant "maintains that if, indeed any statute permits the trial court to force him specifically or accused felons to trial under a new indictment when the accused was and remains released on bail on an old indictment, then such statute violates constitutional rights inasmuch as such statute was promulgated without any reasonable basis and is therefore purely arbitrary." Appellant does not identify the statute of which he complains, cites no relevant authority, and thus presents nothing for review. Point 7 is overruled. Points 8, 9, 10 and 12: "The trial court committed reversible error by overruling Appellant's objection to the trial court ordering the undersigned lawyer to represent Appellant in Cause No. 664772, Article I, Section 13. Ground, Cruel or Unusual Punishment; Article I, Section 13. Ground, Due Course of Law; Article I, Section 19. Ground, Due Course of Law and Abuse of Discretion." Appellant argues that when a trial court directs a lawyer to represent an accused without compensation, as well as against both the lawyer's will and the accused's choice, such is either cruel or unusual punishment. There is no evidence to support Appellant's contentions. Appellant's counsel was not appointed. There is no evidence Appellant was eligible for appointed counsel. Counsel was hired by Appellant for Cause No. 579970, and Cause No. 664772 is a reindictment of the prior cause. Points 8, 9, 10 and 12 are overruled. Point 11: "The trial court committed reversible error by overruling Appellant's objections to the trial court ordering Appellant to trial in Cause No. 664772. Article 1.14(b) Ground. Specifically, Appellant contends the trial court erred in ordering him to trial without giving him an opportunity to preserve his complaint that his indictment was defective in not alleging the manner and means of the commission of the offense. Appellant's indictment in Cause No. 664772, filed May 19, 1993, is a reindictment of No. 579970, filed January 2, 1991. Both indictments allege the exact same offense. The only change is in the name of the owner of the property. Appellant had nearly three years to preserve this complaint. At the evidentiary hearing on Appellant's motion for a new tral, Appellant's counsel stated that he made a tactical decision not file a motion to quash the indictment. Point 11 is overruled. Point 13: "The trial court committed reversible error by denying accused's objection to and challenge of the trial court's jurisdiction" Appellant challenges the jurisdiction of the 177th District Court of Harris County on the ground that it is subject to at-large voting and that at-large voting is illegal. The Fifth Circuit Court of Appeals has resolved this issue against Appellant as it has held that the at-large election of trial judges in Harris County is not illegal. League of United Latin American Citizens v. Clements, 999 F.2d 831, 837 (5th Cir.1993), cert. denied, 114 S.Ct. 878, 127 L.Ed.2d 74; Singleton v. State, 881 S.W.2d 207, 210 (Tex. App.Houston [1st Dist.] 1994). Point 13 is overruled. Point 14: "The trial court committed reversible error by denying accused's motion for continuance in Cause No. 664772: Illness Ground." On the day of trial Appellant sought a continuance on the ground his counsel was suffering from blackouts of an unknown cause. His motion was denied. Appellant's counsel represented him throughout both the guilt/innocence and punishment phases. He had no blackouts. Appellant has not claimed his counsel's assistance was ineffective. Other than Appellant's statements, there is no evidence that counsel was incapacitated. The granting of a continuance on account of sickness of counsel is a matter within the discretion of the trial court. Rosales v. State, 841 S.W.2d 368, 372 (Tex. Crim. App. 1991). Point 14 is overruled. Points 15 and 16: "The trial court committed reversible error by overruling Appellant's objections to illegally seized and converted evidence. Article I, Section 9: Fourth Amendment Ground. Specifically, Appellant complains of the admission into evidence of six bogus cashiers checks, all bearing the same number, which were found in the automobile in which Appellant arrived at the scene. The search was a routine inventory search the police made of the vehicle after Appellant and his co-defendant were arrested. Appellant was only a passenger in the car. A passenger in a car does not have the standing to challenge the search of the car. Howard v. State, 888 S.W.2d 166, 174 (Tex. App.—Waco 1994, pet. ref'd). More importantly, the evidence was admissible because it was obtained as the result of a lawful inventory of the car. Colorado v. Bertine, 107 S.Ct. 743 (1987). An inventory is permissible if conducted pursuant to a lawful impoundment. Benevides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980). Inventories and impoundments of a vehicle are logical and proper consequences of an arrest. Word v. State, 659 S.W.2d 643, 646 (Tex. Crim. App. 1982). Appellant was arrested prior to the inventory search of the car. A warrantless search of the vehicle in which Appellant was a passenger was therefore justified as a search incident to a lawful arrest. Soto v. State, 810 S.W.2d 861, 864 (Tex. App.—Fort Worth 1991, pet ref'd). Points 15 and 16 are overruled. Points 17, 18 and 19: "The State committed reversible error by making the following manifestly improper arguments to the jury on the issue of Appellant's guilt: Ladies and gentlemen, we all know that when you go up to the UPS guy and sign off on the dotted line, that that's your stuff, that you've acquired possession of it. When you sign on the dotted line and he draws that line across the stuff that you've just bought with this check, you's acquired it. He doesn't even have to unload the equipment, you don't have to get to that point. Appellant contends the argument misstated the law and that his actions did not constitute appropriation of the property. The area of permissible jury argument encompasses four categories: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Borjan v. State 787 S.W.2d 53, 55. (Tex. Crim. App. 1990). A person commits theft if he unlawfully appropriates property with intent to deprive the owner of same. Texas Penal Code § 31.03. "Appropriate" means to acquire or otherwise exercise control over property other than real property. Tex. Penal Code, § 31.01 (4)(B). The jury charge contained this statutory definition of "appropriate." Appellant did not object to the definition in the charge. Paul Heinz testified he drove the UPS truck containing the packages for delivery to the Brazos Street address; that Appellant and another pulled up in a car and asked Heinz what he was doing. Heinz said he was attempting to make a C.O.D. delivery and identified the shipper and the amount due. Appellant gave Heinz a cashiers check. Heinz told Appellant the amount of the cashiers check was only enough for six of the packages. Appellant signed for the six packages and gave Heinz the check. Heinz testified that once Appellant signed for the packages and gave his check to Heinz, the parcels were delivered and that when the recipient signed for the delivery the recipient was authorized to retain possession. The police officers were to move in when Heinz raised his clipboard indicating Appellant had signed and Heinz had received the check. This evidence was sufficient to show that Appellant acquired or exercised control over the property. The prosecutor did not misstate the law in his argument and such was not improper. Points 17, 18 and 19 are overruled. Point 20: "The trial court committed reversible error by denying accused's original motion in arrest of judgment." Point 21: The trial court committed reversible error by denying accused's amended motion for a new trial." Specifically, Appellant contends that the trial court erred in overruling his motion in arrest of judgment and his amended motion for a new trial because his indictment was fatally defective by failing to allege the manner and means by which Appellant appropriated the computer printers. Objections to an indictment must be made prior to trial in the form of a written motion to quash. Clark v. State, 577 S.W.2d 238, 240 (Tex. Crim. App. 1979). A defendant is precluded from attacking an indictment for the first time in a motion for arrest of judgment or in a motion for a new trial. Francis v. State, 801 S.W.2d 548, 552 (Tex. App.—Houston [14th Dist.] 1990). This indictment is a reindictment of Cause 579970 filed January 9, 1991. The two indictments allege the same offense and are exactly the same except for the name of the representative of the corporation owner of the property. Appellant had three years to file a motion to quash on the ground the indictment was defective by failing to allege the manner and means by which Appellant appropriated the computer printers. Appellant's counsel testified he made a tactical decision not to file a motion to quash the indictment. Appellant has waived his claims. See the discussion under Point 11. More importantly the indictment is not fatally defective. An indictment need only allege the elements of offense of theft. Johnson v. State, 867 S.W.2d 137, 173 (Tex. App.—Houston [1st Dist.] 1993, pet ref'd). To plead theft, the State has to allege that the accused appropriated property with the intent to deprive the owner of it. Chavez v. State, 843 S.W.2d 586, 588 (Tex. Crim. App. 1992). The manner by which the defendant came to possess the property is not an essential element of theft. Johnson, supra. The manner of acquisition or the circumstances surrounding the acquisition are evidentiary matters and there is no requirement that the State plead evidentiary matters. Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 191986); Berg v. State, 747 S.W.2d 800, 809 (Tex. Crim. App. 1984). Points 20 and 21 are overruled. Point 22: "The evidence is insufficient as a matter of law to sustain the jury's verdict of guilty." The standard for reviewing the sufficiency of the evidence is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt when viewing the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 318, 319. S.Ct. 2781, 61 L.Ed.2d (1970); Geesa v. State, 820 S.W.2d 154, 163 (Tex. Crim. App. 1991). The record reflects that Appellant ordered the computer printers sent to the address of a vacant house; met the delivery of the property in the street when it arrived; signed the UPS slip for the property; gave the driver a bad check for the property; helped unload the property; and placed some of it in the car he came to the scene in. A reasonable factfinder could find Appellant committed the offense of theft as alleged in the indictment. Point 22 is overruled. Point 23 and 24: "A juror, Ignacio Acevendo, and a juror, Manuel Adam Salinas, misrepresented their criminal histories and Appellant relied on such misrepresentation." Appellant states in his brief that had he known of their criminal histories he would have struck these two veniremen. Appellant provides no evidence that these two jurors misrepresented their histories. Appellant had an evidentiary hearing on his motion for a new trial and did not raise the issue at such hearing. Appellant brings in nothing to review under these two points. Points 23 and 24 are overruled. The judgment is affirmed. FRANK G. McDONALD Chief Justice (Retired) Before Justice Cummings, Justice Vance, and Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed April 17, 1996 Do not publish