Calvin Dowe Masters v. State

• Court: Court of Appeals of Texas
• Decided: July 17, 2007
• Docket: 14-06-00458-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 17, 2007

Affirmed and Memorandum Opinion filed July 17, 2007.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00458-CR

CALVIN DOWE MASTERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1045372

M E M O R A N D U M   O P I N I O N

Calvin Dowe Masters appeals a conviction for possession with intent to deliver a controlled substance weighing more than 4 grams and less than 200 grams^[1] on the grounds that the trial court erred by: (1) having appellant shackled during the trial; (2) admitting into evidence the cocaine seized during appellant=s unlawful detention that appellant did not voluntarily abandon; (3) not charging the jury pursuant to article 38.23 of the Texas Code of Criminal Procedure; and (4) failing to charge the jury on a lesser included offense.  We affirm.

                                                                   Background

In 2005, Officer Holmes was dispatched on a call reporting an assault in progress of a black female by two black males.  As he approached the scene, he saw appellant, another black male, Whitmill, and a black female standing in a field next to a house.  Appellant and Whitmill tried to leave the scene, but Holmes asked them to stop and return to the scene to investigate the assault.  While walking toward Holmes, Whitmill dropped a matchbox containing crack cocaine.  Holmes ordered Whitmill and appellant on the ground and handcuffed Whitmill.  Appellant refused to stay on the ground, attempted to walk away, and tried to get something out of his pocket.  Suspecting that appellant might be retrieving a weapon, Holmes stunned appellant with his taser.  Another officer arrived at the scene, and the two officers were able to handcuff appellant.  While they were doing so, a cigarette pack containing crack cocaine fell out of appellant=s pocket.

                                                                      Shackles

Appellant=s first issue contends that the trial court erred by overruling his objection to being shackled during the trial before the jury when no hearing was held to justify this extraordinary procedure and it is impossible to ascertain whether appellant was harmed by the constraint.

In support of this contention, appellant=s brief contains no citations  to the record ^[2] and although appellant cites to Grayson v. State, 192 S.W.3d 790 (Tex. App.CHouston [1st Dist.] 2006, no pet.), he does not explain how this authority supports his position.^[3]  If anything, Grayson does not support appellant=s contention because it held that having the defendant shackled during trial was harmless because there was no evidence that the jury actually saw the defendant=s shackles.  Id. at 792.  In this case, the trial court similarly stated that it would be impossible for the jury to see that appellant is leg-ironed if he keeps his feet under the table, and there is no evidence that the jury could or did see that appellant was leg-ironed.  Therefore, appellant=s first issue affords no basis for relief and is overruled.

                                                          Admission of Cocaine

Appellant=s second and third issues argue that the trial court erroneously admitted the cocaine into evidence because it was illegally seized and appellant did not voluntarily abandon it.

Appellant=s brief does not contain a citation to the record showing that he objected to the admission of the evidence on the grounds presented here.  Nor does appellant=s brief provide any legal argument based upon the one authority cited in his brief.^[4]  Before voir dire, appellant=s counsel announced that he did not want to file a written motion to suppress the cocaine based on an illegal search because he did not feel it would be supported by the facts of the case, and the trial court offered to take an oral motion to suppress with the trial.^[5]  At trial, the State offered the cocaine into evidence as its first exhibit.  Although appellant objected to it based on a lack of predicate, he failed to object on the ground that the evidence was inadmissible because it was illegally seized or not voluntarily abandoned, as appellant now argues on appeal.  Therefore, appellant=s second and third issues present nothing for our review and are overruled.^[6]

Jury Instruction

Appellant=s fourth issue contends that the trial court erred by denying his request for a jury instruction under article 38.23 of the Texas Code of Criminal Procedure because there Awas a variance in the facts of the circumstances of the seizure of the contraband.@

Article 38.23 provides that no evidence obtained by an officer or other person in violation of the laws or constitutions of Texas or the United States shall be admitted in evidence against the accused on the trial of any criminal case.   Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).  It further provides that, where the evidence raises such an issue, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of those laws, then it shall disregard any such evidence.  Id.  Therefore, if a defendant raises a factual dispute about whether evidence was illegally obtained, an article 38.23 instruction must be included in the jury charge.  Pickens v. State, 165 S.W.3d  675, 680 (Tex. Crim. App. 2005).

However, in support of this contention, appellant=s brief does not provide any citation to the record and provides only the following statements:

The Officer testified that Appellant started to walk away from the scene when  he saw the Officer arrive.  He ordered Appellant back to the scene and tasered and cuffed him when he did not respond to his satisfaction.

Ms. Hutchins testified that Appellant was already riding a pink bicycle away before the Officer=s arrival and that he ordered him back and immediately threw him to the ground tasered and cuffed him.  Then the officer barged into her house and confronted her with the red package that allegedly fell from Appellant=s pocket and tried to get her to admit that it was hers.  It is clear from the recitation that the Officer never intended to investigate the assault, if any there was.

Article 38.23 provides that no evidence illegally obtained may be admitted in court and further that upon request the jury may be charged to resolve any fact differences supporting the validity of the seizure of the evidence.  If a fact difference is raised by the evidence the Court must submit the issue to the jury.

(citations omitted).  These statements do not provide any indication of what fact issue was raised that was probative of whether the cocaine was obtained illegally.^[7]  Nor do these statements accurately present Hutchins=^[8] or the police officer=s testimony.  Therefore, appellant=s fourth issue presents nothing for our review and is overruled.

                                                        Lesser Included Offense

Appellant=s fifth issue claims that the trial court erroneously denied his request for an instruction on the lesser included offense of possession of cocaine in an amount less than one gram.

To determine whether a lesser-included offense may be submitted to a jury: (1) the elements of the lesser offense must be established by proof of the same or less than all of the facts required to establish the commission of the charged offense; and (2) some evidence must exist in the record that would permit a jury to rationally find that if appellant is guilty, he is only guilty of the lesser offense.  Hall v. State, __ S.W.3d __, __ (Tex. Crim. App. 2007).

Again, appellant=s brief provides neither citations to the record nor a legal argument based upon legal authority to support his assertion that he was entitled to a lesser-included offense instruction.  See Tex. R. App. P. 38.1(h); Bell, 90 S.W.3d at 305.  Additionally, because the chemist in this case testified that he tested several of the nine rocks of cocaine from the package retrieved from appellant and the rocks were all the same color and consistency, there is no evidence of a smaller quantity of cocaine that would have entitled appellant to the requested lesser-included offense instruction.  See Enriquez v. State, 21 S.W.3d 277, 278 n.1 (Tex. Crim. App. 2000).  Because appellant=s fifth issue thus presents nothing for our review, it is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed July 17, 2007.

Panel consists of Justices Yates, Edelman, and Seymore.

Do not publish C Tex. R. App. P. 47.2(b).

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^[1]           A jury convicted appellant of the offense, found two enhancement paragraphs true, and imposed a sentence of twenty-five years.

^[2]           See Tex. R. App. P. 38.1(h).

^[3]           See Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002) (stating that it is incumbent upon the appellant to cite specific legal authority and to provide legal arguments based upon that authority).

^[4]           See Bell, 90 S.W.3d at 305 (stating that it is incumbent upon appellant to cite specific legal authority and to provide legal arguments based upon that authority).

^[5]           Upon the trial court=s offer to take an oral motion to suppress with the trial, counsel answered: AThat=s what I was hoping to do,@ and the trial court replied: AThat=s fine.@  However, no grounds were ever stated for any such motion.

^[6]           See Tex. R. App. P. 33.1; Sorto v. State, 173 S.W.3d 469, 476 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 2982 (2006); Lane v. State, 151 S.W.3d 188, 192 (Tex. Crim. App. 2004).

^[7]           Pickens, 165 S.W.3d at 680 (holding that, without a factual dispute, there is no requirement that the jury charge include an instruction pursuant to article 38.23.).  

^[8]           Hutchins neither testified that the police officer threw appellant immediately or at any later time to the ground nor did she testify that she saw the police officer taser appellant.  In fact, Hutchins was unable to observe the entire incident because she was moving in and out of her house.  The Officer testified that: (1) after appellant returned, he had asked appellant to stay on the ground, but appellant would try to get up; (2) appellant was attempting to walk away; (3) when he attempted to handcuff appellant, appellant would not be still; (4) he pulled out a taser because appellant was trying to get something out of his pocket; (5) because he did not know if appellant was reaching for a weapon, he did a dry stun; (6) when backup arrived, the two officers handcuffed appellant; and (7) while handcuffing appellant, a cigarette pack fell out of appellant=s pocket containing white rock chunks, which the officers thought was cocaine.