Darrell Maurice Singer v. State

• Court: Court of Appeals of Texas
• Decided: December 23, 2004
• Docket: 01-03-00889-CR
• Status: Published

Opinion

Opinion issued December 23, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00889-CR

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DARRELL MAURICE SINGER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 10th Judicial District Court

Galveston County, Texas

Trial Court Cause No. 01CR2368

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MEMORANDUM OPINION

          Appellant, Darrell Maurice Singer, initially pleaded not guilty to the offense of felony driving while intoxicated (DWI), but he changed his plea to guilty after the State presented some evidence to the jury. The trial court instructed the jury that appellant had changed his plea to guilty, and the trial proceeded before the same jury for determination of appellant’s punishment. Appellant pleaded not true to a punishment enhancement paragraph that alleged he had been previously convicted of the felony of retaliation. The jury found the enhancement paragraph true and sentenced appellant to 13 years in prison. See Tex. Pen. Code Ann. § 49.09 (Vernon 2003). In two issues, appellant contends that he is entitled to a new trial to determine his punishment because the trial court erred by (1) overruling appellant’s motion for mistrial following a witness’s testimony that appellant had an “extensive criminal history” and (2) admitting certain prior judgments of conviction, which were allegedly not properly authenticated. We affirm.

Background

          At midnight on November 24, 2001, Houston Police Officer B. Roper noticed appellant’s car drift to the shoulder of the road and then abruptly shift back into the proper lane. Officer Roper followed appellant and, after seeing appellant’s car drift a second time, initiated a traffic stop. Appellant told Officer Roper that his name was Cedric Maurice Moore and that his date of birth was June 25, 1964. Officer Roper conducted field-sobriety tests on appellant, which indicated that he was intoxicated.

          After appellant was arrested, he declined to give a breath specimen for the intoxilizer test. He was uncooperative with Officer Roper and refused to disclose his true identity. Officer Roper learned appellant’s identity through a pawn slip found in appellant’s pocket, which showed his name, Darrell Maurice Singer, and address. When Officer Roper left appellant alone in the interview room at the police station, appellant urinated on the floor and passed out.

Denial of Motion for MistrialIn his first issue, appellant contends that the trial court erred by overruling his motion for mistrial “following a deliberately nonresponsive and highly prejudicial claim,” by Officer Roper, that appellant had an “extensive criminal history.” Appellant’s complaint concerns testimony by Officer Roper during the guilt-innocence phase of the trial. The record shows that the trial court sustained appellant’s attorney’s objection and instructed the jury to disregard the testimony. Appellant’s guilty plea followed the allegedly prejudicial testimony.

Appellant’s Request for New Guilt/Innocence Trial?

          In a footnote to his appellate brief, appellant states that “the change in plea to ‘guilty’ may have been advisable in view of the court’s refusal to grant a mistrial. In this sense, it is impossible to unravel the court’s refusal to grant a mistrial from the overall course of this proceeding.”

          “Whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty or nolo contendere ‘waives’ or forfeits the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error.” Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000) (holding that judgment of guilt not rendered independently from trial court’s ruling on motion to suppress evidence of offense, and that judgment could not be supported without evidence appellant sought to suppress). To avoid waiver of the right to appeal after pleading guilty or nolo contendere, the defendant must demonstrate a nexus—temporal or otherwise—between the error and the judgment of guilt. See Sanchez v. State, 98 S.W.3d 349, 353 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that appellant’s plea of guilty supported by, and not rendered independently of, trial court’s ruling on motion to reveal identity of confidential informant because informant’s testimony was relevant to, and needed for, defense to prosecution); Brink v. State, 78 S.W.3d 478, 484 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (holding that right to appeal complaint that trial court erred by substituting trial counsel waived because appellant pleaded guilty two and a half months after ruling substituting counsel, and appellant showed no direct nexus between ruling and his guilt or innocence).

          Appellant has not demonstrated any nexus between the trial court’s refusal to grant a mistrial and appellant’s changing his plea from not guilty to guilty. Instead, appellant merely posits that “the change in plea to ‘guilty’ may have been advisable in view of the court’s refusal to grant a mistrial.” Because appellant has neither asserted nor demonstrated that his decision to change his plea was actually related in any way to the court’s ruling on his motion for mistrial, we conclude that he has not asserted any cognizable claim of error in the guilt-innocence phase of trial. See Tex. R. App. P. 38.1(h); Harris v. State, 784 S.W.2d 5, 27 (Tex. Crim. App. 1989); Maldonado v. State, 902 S.W.2d 708, 711 (Tex. App.—El Paso 1995, no pet.).

Appellant’s Request for New Punishment Trial

          Appellant contends that he is entitled to a new punishment trial because “the slur of defendant’s having a criminal nature was so broad and unconfined that it could only have interfered with the jury’s ‘orderly evaluation of the evidence’ during [the] punishment phase.”

          We review a trial court’s denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Abuse of discretion occurs when the trial judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). A mistrial halts trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd, 3 S.W.3d at 567. Thus, a trial court may declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached, but would have to be reversed on appeal due to an obvious procedural error. Id. Determining whether an error demands a mistrial must be made by examining the particular facts of the case. Id. Because our system presumes that juries follow judicial admonishments to disregard, asking an improper question will rarely require a mistrial. Id.; Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996). A mistrial is required only when an improper question is clearly prejudicial to the defendant and is of a character that suggests the impossibility of withdrawing the impression produced in the minds of the jurors. Ladd, 3 S.W.3d at 567.

          Admissible evidence at the punishment stage of trial includes, but is not limited to, evidence of a defendant’s prior criminal record, his general reputation, his character, and opinion testimony regarding his character. Tex. Code Crim. Proc. art. 37.07 § 3(a)(1) (Vernon Supp. 2004-2005). During the punishment stage in this case, the State introduced evidence that appellant had been previously convicted of four felony offenses: retaliation, aggravated assault, and two thefts. Appellant had also been convicted of eleven misdemeanor offenses: three for criminal mischief, one for resisting arrest, four for assaults causing bodily injury, two for DWI, and one for driving with a suspended license. Officer Roper’s characterization that appellant had an “extensive criminal history” was accurate based on the evidence in the record and was admissible at the punishment stage under article 37.07 of the Code of Criminal Procedure. Therefore, appellant is not entitled to a new punishment trial on the ground that the trial court refused to declare a mistrial during the guilt-innocence stage based on the officer’s statement that appellant had an extensive criminal history.

          We overrule appellant’s first issue.

Authentication of Exhibits

          In his second issue, appellant contends the trial court erred by admitting seven judgments of appellant’s previous convictions that were allegedly not “certified copies of the judgments, and no custodian was proffered to authenticate them.” Specifically, appellant contends that State’s exhibits 9 through 15 should not have been admitted because they were not “certified.”

          During the punishment phase of appellant’s trial, Bill O’Briant of the Galveston County Sheriff’s Office compared appellant’s fingerprints to fingerprints on the judgments of appellant’s prior convictions and concluded that the convictions were appellant’s. The State then offered exhibits 9 through 19 as conviction records of appellant. Appellant objected and the following occured:

          Appellant:              My objection is on the predicate that he is not the custodian of these records. There is no exception under the business records law. There has [sic] been no affidavits filed. All he’s doing is taking a piece of paper that he’s taken from somewhere and comparing a print from a print card he has. We’ve had nobody come in here and say who is holding this piece of paper and what’s the purpose of this piece of paper. That’s my objection.

State’s attorney:The State offers State’s 9 through 19 as self-authenticating

                                         documents, certified copies.

          . . .

          The court:              The objection is overruled. State’s Nos. 9 through 19 are admitted.

          At the end of the punishment phase, appellant admitted that he committed the crimes recited in the judgments entered into evidence.

          Under rule 902 of the Rules of Evidence, a document is admissible into evidence as a self-authenticating document if the document is a certified copy of a public record. Tex. R. Evid. 902(4). Appellant’s objection, however, pertained to rule 803 of the Texas Rules of Evidence, and not rule 902. Appellant’s objection to the trial court referred to the “business records law” and complained that the officer was not the “custodian of these records” and that no business records “affidavits” were on file. See Tex. R. Evid. 803(6) (authorizing admissibility of documents into evidence under certain circumstances “if it was the regular practice of that business activity to make the . . . record . . . as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10) . . . .”).          In accordance with settled principles of error preservation, a point of error on appeal must present the same legal theory that was presented to the trial court through a timely, specific objection. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990); see Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a). Requiring a specific objection serves two purposes by (1) informing the trial judge of the basis of the objection and affords him the opportunity to rule on it, and (2) affording opposing counsel an opportunity to remove the objection or supply other testimony. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). The Court of Criminal Appeals has explained this requirement for specificity: “Whichever party complains on appeal about the trial judge’s action must, at the earliest opportunity, have done everything necessary to bring to the judges [sic] attention the evidence rule in question and its precise and proper application to the evidence in question.” Willover v. State, 70 S.W.3d 841, 845 n.4 (Tex. Crim. App. 2002).

          Because appellant’s point of error on appeal does not comport with his trial court objection, appellant has waived the right to complain about the alleged lack of certification of the documents in this appeal. See Sterling, 800 S.W.2d at 521. Conclusion

          We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.

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