Shearer, Robert S. v. State

Affirmed and Memorandum Opinion filed November 16, 2006 Affirmed and Memorandum Opinion filed November 16, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00506-CR ____________ ROBERT S. SHEARER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law No. 8 Harris County, Texas Trial Court Cause No. 1280631 M E M O R A N D U M   O P I N I O N Appellant, Robert S. Shearer, was charged by information with speeding on a highway near the City of Webster. He was convicted of the offense and the trial court assessed a fine of $200 and court costs of $233. Appellant raises five issues on appeal: (1) the evidence was legally insufficient to support the conviction; (2) there was a fatal variance between the charge and the proof offered at trial; (3) the trial court erred in overruling his objections to the jury charge; (4) the trial court erred in overruling his requested special instruction to the jury; and (5) the trial court incorrectly calculated the costs assessed. We affirm. Factual and Procedural Background On May 9, 2004, appellant was driving on South Egret Bay in the City of Webster. According to Officer Juan Quintana of the City of Webster Police Department, appellant was driving his silver Pontiac Firebird 60 miles per hour in an area with a posted speed limit of 45 miles per hour. Quintana signaled appellant to pull over. Although there was some lack of clarity at trial, testimony indicated that appellant asked Quintana to arrest him. Appellant is an attorney and has represented himself at all levels of this matter. According to Quintana, appellant indicated that were he arrested, he would not be able to make a court appearance and the judge would then dismiss that particular case. However, Quintana explained that he could not arrest appellant for speeding. Instead, he cited appellant for speeding. There was no dispute that appellant was indeed traveling 60 miles per hour in an area where the speed limit was clearly posted to be 45 miles per hour. Appellant pleaded no contest to the citation at the municipal court. Once a fine and fees were assessed at a total of $181, appellant appealed for a trial de novo to the county criminal court at law. Appellant received a jury trial, which resulted in a conviction. The trial court then assessed a fine of $200 and costs of $233. Appellant timely filed notice of appeal. Analysis I. Issues Relating to the Proper Ordinance Appellant=s first four issues rely on his contention that he was cited for violating a municipal ordinance and, therefore, the State was obligated to establish a conviction based on a municipal ordinance, rather than the Texas Transportation Code. Appellant=s first four issues are wholly dependent on a favorable ruling on whether the Transportation Code applies to his case. A. The Term AHighway@ Includes the Roadway at Issue Appellant has contended at all times that South Egret Bay, where he received his citation and the street on which he was speeding, is a city street and not a Astate highway.@ As such, he argues, it is not governed by the Texas Transportation Code. Therefore, any conviction or charge for speeding on that road must be predicated upon a municipal ordinance establishing the speed as 45 miles per hour. According to appellant, without that proof and evidence, the State has not proved his guilt, the charge discussing a Ahighway@ was flawed, and the trial court should have included appellant=s special instruction regarding a municipal ordinance. However, the Transportation Code has a more expansive definition of highway than appellant contends. The Transportation Code defines A[h]ighway or street@ as Athe width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel.@ Tex. Transp. Code ' 541.302(5) (Vernon 1999). That definition is sufficiently panoptic so as to include the road in this case. As the Court of Criminal Appeals held relating to a similarly worded definition, Athe words >public road or highway= in said statute were used to differentiate [those public roads or highways] from private roads.@ Nichols v. State, 120 Tex. Crim. 219, 49 S.W.2d 783, 784 (1932). That interpretation indicates that any publicly maintained road would be considered a highway. This court has held that section 541.302(5)=s definition includes county roads, which would not be included in appellant=s narrow interpretation. See Texas Department of Public Safety v. Guajardo, 970 S.W.2d 602, 607 (Tex. App.CHouston [14th Dist.] 1998, no pet.). In light of the statute=s broad definition, the Court of Criminal Appeals=s prior interpretation, and our own court=s precedent, we hold that section 541.302(5) includes the road at issue. Therefore, any provision of the Transportation Code utilizing the term Ahighway@ would also encompass this road. We now turn to each of appellant=s first four issues. B. The Evidence was Legally Sufficient In a legal-sufficiency challenge, we employ the familiar standard of viewing the evidence in the light most favorable to the verdict. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). If any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we will affirm. Id. We will not re-weigh the evidence and substitute our judgment for that of the jury. Id. Appellant claims that an essential element of the crime was not proven belowCnamely, that he was speeding on a highway. Additionally, appellant argues the State did not prove that he was driving at an unreasonable or imprudent speed. See Tex. Transp. Code ' 545.351(a) (Vernon 1999). Finally, appellant contends the State failed to prove up a city ordinance he violated, and so we must render a judgment of acquittal. We disagree. We evaluate first appellant=s chief argument that the State failed to prove he was speeding on a highway. As we explained above, the term Ahighway@ does not encompass solely state highways as appellant argues. Rather, it is an expansive definition, which is broad enough to include the public road on which appellant was cited for speeding. Because the evidence was undisputed that appellant was on a public road included within the statutory definition of Ahighway,@ the evidence on this element is legally sufficient to prove he was speeding on a highway. Appellant next argues that because he elicited the following testimony from Officer Quintana, the evidence was legally insufficient to sustain his conviction: [Defense]: And you testified that this four lane road, it would be unreasonable to go 60 miles an hour on; is that correct? [Witness]: Yes. [Defense]: Can you tell me why? [Witness]: Because the posted speed limit is 45. . . . [Defense]: If the speed limit posted was 60 instead of 45, it would have been perfectly safe and reasonable to go 60, would it not? [Witness]: Yes. Appellant contends this testimony was a death knell for the State=s case because it rebutted the statutory presumption that exceeding the posted speed limit is not reasonable and prudent. See Tex. Transp. Code ' 545.352 (Vernon Supp. 2006). However, the above testimony was only part of Quintana=s testimony. Quintana also testified, without equivocation, that it was unreasonable and imprudent to travel 60 miles per hour at that particular location under the conditions then existing. The jury is free to believe some, all, or none of a witness=s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The jury was thus entitled to accept the prima facie evidence of unreasonable and imprudent driving,[1] and also to accept Quintana=s testimony that it was unreasonable and imprudent to drive as appellant drove on that road. The evidence was legally sufficient on the element of unreasonable and imprudent driving. Finally, appellant asserts the evidence was legally insufficient because the State did not prove up a municipal ordinance. However, this argument is predicated upon appellant=s primary argument that he must be convicted for violating a municipal ordinance because the Transportation Code does not apply to city streets. We have already rejected that argument. The State produced evidence that the speed limit on South Egret Bay was 45 miles per hour and that appellant violated a state statute by exceeding that limitation. There was no dispute that appellant was driving 60 miles per hour in a 45 miles-per-hour zone. The evidence was legally sufficient on this element. Accordingly, we overrule appellant=s first issue. C. There was no Fatal Variance Between the Information and Proof In his second issue, appellant argues that the criminal information and the proof offered at trial have a fatal variance. As above, this argument is contingent upon this court=s holding that speeding on a city street cannot give rise to a violation of the Transportation Code. Having already disposed of that issue, appellant=s second issue is without merit. Both the information and proof at trial concerned appellant=s operating his vehicle at an unreasonable and imprudent speed by driving in excess of the posted speed limit on a public roadway. This is not a case in which appellant was uninformed of the charge, or would be subjected to prosecution for the same crime later, as he alleges. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001). Appellant knew the charge was for excessive speed on a public roadway, has not presented any credible argument of surprise,[2] and has not explained how he could be held accountable for another crime under the information presented. We overrule appellant=s second issue. D. Trial Court did not Err in Overruling Objections to Jury Charge In his third issue, appellant argues that the trial court erred when it overruled his objection to the jury charge. Essentially, appellant contends that the jury charge was Afundamentally flawed@ because it instructed the jury on violations of the Transportation Code. According to appellant, this instruction constituted reversible error. However, as we explained above, the charges against appellant, and the entire case, concerned a violation of the Transportation Code. Thus, the trial court did not err in instructing the jury as to a violation of the Transportation Code. Appellant also argues that the language in the jury charge was in error because it failed to track the language of either the Transportation Code or a local ordinance. Essentially, appellant=s argument is that the jury charge allowed the jury to convict him for a non-existent offense because, according to appellant, A[n]o state law proscribes speeding upon a >public roadway.=@ We have determined already that the Transportation Code was indeed the statute at issue, and we have determined that the term highway is a more expansive term than appellant contends. Therefore, there was no flaw in the jury charge and we overrule appellant=s third issue. E. Trial Court did not Err in Refusing to Submit Special Instruction In a now-familiar line of argument, appellant contends that the trial court reversibly erred by not including a proffered instruction regarding the elements for speeding on a city street. As with appellant=s previous issues, this issue centers on his central argument that he could be convicted only for a violation of a municipal ordinance, and not for violating the Transportation Code. However, also as with appellant=s previous issues, we disagree that he was charged with, and prosecuted for, violating a city ordinance. Rather, the State properly charged and convicted appellant for speeding in violation of the Transportation Code. Therefore, appellant=s special instruction was inapposite and the trial court did not err in excluding it. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2006) (explaining that the charge of the court should contain, among other things, the law applicable to the case and should charge upon issues arising from the facts). II. Appellant is not Entitled to a Reformed Judgment as to Costs In his final issue, appellant contends that the trial court erred in assessing his costs at more than $40. Appellant relies on Texas Local Government Code section 133.102 to argue that the trial court was authorized to assess only $40 in fees. That section, which is entitled Consolidated Fees on Conviction, states in relevant part: (a) A person convicted of an offense shall pay as a court cost, in addition to all other costs: (1) $133 on conviction of felony; (2) $83 on conviction of a Class A or Class B misdemeanor; or (3) $40 on conviction of a nonjailable misdemeanor offense, including a criminal violation of a municipal ordinance, other than a conviction of an offense relating to a pedestrian or the parking of a motor vehicle. Tex. Loc. Gov=t Code ' 133.102(a) (Vernon Supp. 2006) (emphasis added). This statute expressly contemplates additional fees and in no way is an exclusive list of fees. Appellant has not highlighted any particular fee, such as a jury or security fee, which he believes was inappropriately assessed. His only argument is that section 133.102 provides the only permissible fee to charge for his case, in spite of the statute=s clear language. We overrule appellant=s final issue. Conclusion Having overruled each of appellant=s issues, we affirm the trial court=s judgment. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed November 16, 2006. Panel consists of Justices Anderson, Hudson, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] See Tex. Transp. Code ' 545.351(a). [2] Appellant=s argument of surprise is particularly disingenuous given that he pleaded no contest to the charge at the municipal court level, then appealed de novo to the criminal county court at law, filed numerous motions regarding discovery and other matters and, thus, personally handled the entire matter in two trial courts. Also, appellant has not explained what he would have done differently but for the surprise.