Rebecca Ann Shaw v. State

IN THE TENTH COURT OF APPEALS No. 10-03-00299-CR Rebecca Ann Shaw, Appellant v. The State of Texas, Appellee From the 249th District Court Johnson County, Texas Trial Court No. F35621 withdrawal of assent to letter order It has come to my attention that the procedure outlined in McCullough v. Kitzman, 50 S.W.3d 87 (Tex. App.—Waco 2001) was not followed in connection with the disposition of the motion to recuse filed in this case against Justice Reyna and me. Justice Vance, who was not the subject of the motion, and I conferred with regard to the motion and a letter order denying the motion was issued May 20, 2005. Unbeknownst to me, the motion for recusal as to me was not being simultaneously decided and, in fact, was not decided until May 24, 2005. Accordingly, due to the failure to simultaneously decide and issue these orders regarding the ruling on the motion, I have no alternative but to withdraw my assent to the motion to recuse Justice Reyna. The reason I must withdraw my assent is that I have no authority to participate in the decision of that motion other than as part of a “roundrobin” procedure as described in McCullough v. Kitzman. Accordingly, I should not have participated in the motion due to the pending motion to recuse or disqualify, and accordingly withdraw my assent thereto and designate myself as “not participating” in the consideration of the motion to recuse Justice Reyna in this cause. TOM GRAY Chief Justice Withdrawal of Assent to May 20, 2005 Letter Order delivered and filed May 25, 2005 65pt" to="94.05pt,8.65pt"> No. 10-03-00079-CR Pearline Cooper Ester, Appellant v. The State of Texas, Appellee From the 40th District Court Ellis County, Texas Trial Court # 26470CR O p i n i o n A jury convicted Pearline Cooper Ester of evading arrest in a vehicle. The court sentenced her to ten years’ imprisonment, suspended imposition of sentence, and placed her on community supervision. Ester contends in four issues that the court erred by: (1) overruling her Batson challenges; (2) overruling her objection to the admission in evidence of a crack pipe taken from her car; (3) failing to define the term “knowingly” in the charge; and (4) overruling her objection to the admission in evidence of a penitentiary packet during the punishment phase. We will affirm. The evidence in sum is that Ester was driving a car suspected to have been involved in a hit-and-run accident. A Midlothian police officer sighted Ester’s car and pursued. Despite the officer activating the overhead lights and siren of his patrol car, Ester failed to stop. Ester fled from the officer at speeds up to 120 miles per hour. She forced other drivers off the road as she led the officer (and others) on a twenty-two-mile chase. When Ester’s car was finally stopped, she remained inside with the windows closed. She was smoking a crack pipe as she sat in the car. Because Ester did not respond to the officers’ commands, they broke the rear window on the driver’s side, unlocked the driver’s door, and removed her from the car. She was “shaking and sweating profusely.” They transported her to the hospital for a medical evaluation before taking her to jail. BATSON CHALLENGES Ester contends in her first issue that the court abused its discretion by overruling her Batson challenges made with regard to two African-American veniremembers against whom the State exercised peremptory challenges. The State responded to Ester’s Batson challenge by explaining that it struck venireperson Vann because he had failed to answer several questions on his juror information card, he required “a good minute” to answer the prosecutor’s question about how long he had been a resident of the county, he was slow to acknowledge the prosecutor even when being addressed directly, he nodded in affirmation to several of defense counsel’s statements during voir dire, and he did not seem very coherent at times. These are race-neutral explanations for the State’s peremptory challenge. See Tate v. State, 939 S.W.2d 738, 744-45 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d); Harper v. State, 930 S.W.2d 625, 634 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Ester did not attempt to rebut these reasons at trial. The court’s ruling with respect to Vann is supported by the record and is not clearly erroneous. See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003). The State explained that it struck venireperson McDaniel because she indicated that she would have difficulty judging another person because of her religious beliefs. When the State challenged McDaniel for cause, Ester rehabilitated her and she agreed that she would follow the law. Nevertheless, McDaniel’s statements regarding her religious beliefs constitute a race-neutral explanation for the State’s peremptory challenge. See Lee v. State, 860 S.W.2d 582, 585 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d); Dixon v. State, 828 S.W.2d 42, 44-46 (Tex. App.—Tyler 1991, pet. ref’d). Ester did not attempt to rebut this explanation at trial. The court’s ruling with respect to McDaniel is supported by the record and is not clearly erroneous. See Simpson, 119 S.W.3d at 268. Accordingly, we overrule Ester’s first issue. ADMISSION OF THE CRACK PIPE Ester contends in her second issue that the court abused its discretion by admitting in evidence the crack pipe which was seized from her car because its probative value is substantially outweighed by the danger of unfair prejudice. However, Ester objected to the admission of this evidence at trial on the basis of chain of custody. Because Ester’s trial objection does not match her appellate complaint, she has failed to preserve this issue for appellate review. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999); Orteaga v. State, 126 S.W.3d 618, 622-23 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). Accordingly, we overrule Ester’s second issue. THE COURT’S CHARGE Ester contends in her third issue that the court erred by failing to define the term “knowingly” in the charge. The State responds that no error is shown because the evading arrest statute requires only that a person “intentionally flee[ ]” from an officer. We disagree with the State because the statute also requires that the person “know” that he is fleeing from a peace officer. However, because Ester did not suffer “some harm” as a result of this error, we will overrule the third issue. The indictment alleges in pertinent part that Ester: did then and there, while using a vehicle, intentionally flee from Brad Elliott, a person the defendant knew was a peace officer who was attempting lawfully to arrest or detain the defendant. In the proposed charge the court submitted to the parties for consideration, the court included definitions for the terms intentionally and knowingly. The State objected to the inclusion of a definition for the term knowingly because the allegations were “just intentionally fleeing” rather than “intentionally or knowingly” fleeing. The court responded that it had included that definition because the indictment alleges that Ester “knew [Elliott] was a peace officer.” Nevertheless, the court stated that it would remove that definition from the charge. Ester objected to the removal of the definition and asked the court to restore it. The court overruled her objection. Section 38.04 of the Penal Code defines the offense of evading arrest or detention as follows: A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him. Tex. Pen. Code Ann. § 38.04(a) (Vernon 2003). The elements of this offense are: (1) a person, (2) intentionally flees, (3) from a peace officer, (4) with knowledge he or she is a peace officer, (5) the peace officer is attempting to arrest or detain the person, and (6) the attempted arrest or detention is lawful. See Johnson v. State, 634 S.W.2d 695, 695 (Tex. Crim. App. [Panel Op.] 1982); Reese v. State, 846 S.W.2d 351, 353 (Tex. App.—Tyler 1992, no pet.); see also Tex. Pen. Code Ann. § 38.04(a). Section 6.03(b) of the Penal Code defines the term “knowledge.” Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003).[1] This was the definition which Ester asked to be included in the charge. A statutorily-defined term must be included in the charge. See Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986); Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d); Smith v. State, 959 S.W.2d 1, 25 (Tex. App.—Waco 1997, pet. ref’d). Because Ester objected to the omission of this definition from the charge, this error requires reversal if she suffered “some harm” from the omission. [T]he actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)); Minor v. State, 91 S.W.3d 824, 828 (Tex. App.—Fort Worth 2002, pet. ref’d) (same). Here, the primary officer made a video recording of the pursuit, which was offered in evidence. The parties focused their argument on the issue of whether Ester knew a police officer was pursuing her. The State did not argue that such knowledge was unnecessary. Cf. Fisher v. State, 829 S.W.2d 403, 406 (Tex. App.—Fort Worth 1992, pet. ref’d) (harm found where prosecutor referred to charge and informed jury that State did not have to prove defendant knew he was driving car without owner’s consent). Because of the strength of the State’s evidence and because the argument properly presented the issue of the defendant’s knowledge to the jury, we conclude that Ester was not harmed by the omission of the statutory definition of the term “knowledge” from the charge. See Mathis v. State, 858 S.W.2d 621, 622-23 (Tex. App.—Fort Worth 1993, pet. ref’d); White v. State, 844 S.W.2d 929, 933 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).[2] Accordingly, we overrule Ester’s third issue. PENTITENTIARY PACKET Ester contends in her fourth issue that the court abused its discretion by admitting a penitentiary packet in evidence after the State was unable to prove that her fingerprints matched those on the exhibit. The State’s fingerprint witness concluded that the prints on the penitentiary packet were not of sufficient quality for a comparison. Nevertheless, Ester took the stand during the punishment phase and admitted on cross-examination that she was “the same Pearline Ester” who was convicted in Tarrant County on December 22, 1997 of delivery of less than one gram of cocaine, that she was given three years’ deferred adjudication community supervision, and that her “probation was revoked” on April 5, 1999 and she was sentenced to 180 days’ confinement. This matches the information contained in the penitentiary packet. Based on Ester’s testimony, the court did not abuse its discretion by admitting the penitentiary packet in evidence. See Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986) (prior conviction can be proved by “the introduction of the pen packet and the testimony of the defendant”). Accordingly, we overrule Ester’s fourth issue. We affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurring) Affirmed Opinion delivered and filed October 27, 2004 Publish [CR25] [1] “A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.” Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). [2] We acknowledge that Mathis and White involved the question of “egregious harm” under Almanza rather than “some harm.” See Mathis v. State, 858 S.W.2d 621, 622 (Tex. App.—Fort Worth 1993, pet. ref’d); White v. State, 844 S.W.2d 929, 932 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). Nevertheless, we find these cases to be instructive on the issue presented.