NO. 07-02-0223-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 25, 2002
______________________________
DONALD MOODY, APPELLANT
V.
TDCJ DIRECTOR, GARY L. JOHNSON, APPELLEE
_________________________________
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 32,545; HONORABLE LEE WATERS, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
ON MOTION FOR REHEARING
Appellant Donald Moody filed an appeal from the dismissal of his lawsuit against
Gary L. Johnson, Director of the Institutional Division of the Texas Department of Criminal
Justice, in which he sought a review of disciplinary action taken by officers and the warden
of the Neil Unit where he is incarcerated. We dismissed that appeal for want of jurisdiction
because the notice of appeal was filed 44 days after the dismissal of his lawsuit.
Appellant has now filed two documents in the same cause number entitled "Motion
Mandamus" and "Motion for Writ be Re-amended on Appeal." These motions are replete
with incomplete and unintelligible sentences. However, as near as we can discern,
appellant is complaining about discipline against him, his desire for a job change, his
transfer to a mental ward, and his desire to take a blood test. He also requests rehearing
of our prior opinion, although we are unable to decipher the basis upon which he asserts
he is entitled to one.
The minimum standards for motions and briefs are set forth in the Rules of
Appellate Procedure. A motion must state with particularity the grounds on which it is
based and set forth the order or relief sought. Tex. R. App. P. 10.1(a)(2) and (3). A brief
must state concisely all issues or points presented for review and contain a clear and
concise argument for the contentions made with appropriate citations to authorities and the
record. Tex. R. App. P. 38.1(e) and (h). Further, the brief must contain a clear statement
of the nature of the relief sought. Tex. R. App. P. 38.1(i). A motion for rehearing must
clearly state the points relied on for the rehearing. Tex. R. App. P. 49.1. A pro se
appellant is held to the same standards as licensed attorney and must comply with
applicable laws and rules of procedure. Holt v. F. F. Enterprises, 990 S.W.2d 756, 759
(Tex.App.--Amarillo 1998, pet. denied). While we are willing to liberally construe a pro se
motion or brief, these motions fail to meet the minimum standards required by the rules of
procedure.
To the extent that appellant seeks a rehearing of our original opinion, it is overruled,
and any additional relief sought by the motions is also overruled.
Per Curiam
Do not publish.
After defense counsel defined the word, Manson answered the question in the negative.
Upon conclusion of his voir dire, the following dialogue occurred at the bench:
MR. HOWARD: [defense counsel] Judge, as part of my challenge, I would like
to also bring her and identify - -
THE COURT: I didn't follow who her is for the record.
.
MR. HOWARD: Juror No. 1. Her information form indicates that she was born
in Switzerland. During the State's voir dire, she had indicated
that English was not her first language and that she may have
difficulty understanding all of the proceedings. During the
Defense's voir dire - -
MS. PHILLIPS: If I could interrupt. I don't think that she said she would have
difficulty understanding all the proceedings. She said some of
the legal terminology.
THE COURT: Right. The bottom line is that you're questioning the jurors'
ability to hear and comprehend the full trial - -
MR. HOWARD: Yes. And to leave her on would prejudice my client and I
should not have to use a peremptory strike on her.
THE COURT: We talked to her both by the State and the Defense and
individually.
State, what is your response?
MS. PHILIPS: Your Honor, the State doesn't feel like it's going to be an unfair
burden on the Defense attorney's client. The State feels like
she admitted that she may have some difficulty with some of
the legal terms, but would not have a problem letting
somebody know if she was having a difficult time with one of
the legal terms.
THE COURT: We talked to her and we have all adequately gotten responses
from her. She did flounder on the word embellish, but I will not
strike Juror 1 as English not being the primary language.
She's obviously an intelligent, working, well-rounded person
whose English, I think, has been very good so far. So, the
challenge on Juror No. 1 is denied so far.
MR. HOWARD: Judge - -
THE COURT: Your next challenge?
MR. HOWARD: I'm trying to make a record on this in that during voir dire,
Judge, I did not at that point attempt to disqualify her for
English because I thought that it was the practice of this Court
to do challenges after voir dire. That we would bring them up
and then we could have a more intimate discussion into her
capacity to - - to do - - to understand outside the presence of
all of the other jurors.
THE COURT: You got your ruling on that. On to the next challenge.
MR. HOWARD: All right. Judge, that's the only challenge that I had.
THE COURT: You saw a potential for it, too. I agree.
State, any challenges for cause on the first six?
MS. PHILLIPS: No, Judge.
THE COURT: You've got three peremptory per side. See the Clerk.
After the jury was assembled, the Court asked if there were any objections, defense
counsel stated: "Judge, other than the one that I noted previously." No further objections
were made.
In order to preserve a complaint such as that at bar, the complainant must
demonstrate that (1) he exhausted all of his peremptory challenges, (2) the trial court
denied his request for additional peremptory challenges, and (3) he was forced to accept
an objectionable juror due to the court's failure to grant a prior challenge for cause or grant
additional peremptory strikes. Coble v. State, 871 S.W.2d 192, 201 (Tex. Crim. App.
1993), cert. denied, 513 U.S. 829, 115 S. Ct. 101, 130 L. Ed.2d 50 (1994); Credille v.
State, 925 S.W.2d 112, 115 (Tex. App. - Houston [14th Dist.] 1996, pet. ref'd.).
Furthermore, the complainant must not only identify the objectionable juror to the trial court
before the jury is sworn, Credille v. State, 925 S.W.2d at 115, but also illustrate why the
juror was objectionable. Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992), 509
U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993).
In the case at bar, appellant failed to show that he had used all of his peremptory
strikes. Nor did he request additional strikes. Furthermore, appellant never identified to
the trial court any objectionable juror that he was forced to accept. Thus, the purported
error complained of was not properly preserved for our review.
Issues Two and Three: Suppression of Evidence and Oral Statement
In his second and third issues, appellant contends that the trial court erred by failing
to "suppress Marihuana found in appellant's residence" and "suppress inculpatory oral
statements obtained from appellant during custodial interrogation." Specifically, appellant
believes that because the officers arrived at his home with guns drawn and ordered him
out of his residence that he had been "seized and arrested" at that point in time. And,
because this purportedly was a warrantless arrest, article14.01 of the Texas Code of
Criminal Procedure governs the situation. Furthermore, appellant claims that none of the
exceptions described in Article 14.01 or any other statutes which permitted warrantless
arrests applied to the seizure of appellant. Moreover, because he was under arrest at the
time his utterances were made, the officers were obligated to Mirandize him. This they did
not do; therefore, any utterances he made were illegally obtained. We disagree.
First, we must review a decision on a motion to suppress under an abuse of
discretion standard. LaSalle v. State, 923 S.W.2d 819, 823 (Tex. App. - Amarillo 1996,
pet. ref'd.). Although questions of law are subject to unfettered de novo review, the same
is not necessarily true with regard to mixed questions of law and fact. That is, the
application of law to fact is a mixed question of law and fact. Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997). Furthermore, when the resolution of the ultimate questions
turn on an evaluation of the credibility and demeanor of the witnesses, then we afford
almost total deference to the manner in which the trial court applied the law to facts before
it. The same deference is afforded the trial court's determination of the historical facts
involved. Id. In all other situations, we review de novo the manner in which the law is
applied. Id.
Next, in reviewing seizures and detentions, we consider the fact that circumstances
short of probable cause to arrest may justify a temporary detention for the purpose of
investigation. Francis v. State, 896 S.W.2d 406, 409 (Tex. App. - Houston [14th Dist.]
1995, pet. ref'd.). To justify an investigative detention, the officer must have specific
articulable facts which, based on his experience and personal knowledge, and coupled with
logical inferences from those facts, warrant the intrusion. Joseph v. State, 865 S.W.2d
100, 102 (Tex. App. - Corpus Christi 1993, pet. ref'd.).
In addition to articulable facts, the officer's knowledge of the methods used and
characteristics exhibited by those involved in criminal activity, and the reaction, appearance
or demeanor of the individual being addressed are all factors that may be weighed when
determining the propriety of an investigative detention. Sheppard v. State, 895 S.W.2d
823, 825 (Tex. App. - Corpus Christi 1995, pet. ref'd.). Thus, officers may use such force
as is reasonably necessary to effect the goal of the stop. Morris v. State, 50 S.W.3d 89,
95 (Tex. App. - Fort Worth 2001, no pet. h.)
In the case before us, Officer Huff testified that: 1) they had been dispatched
pursuant to a "911 hang-up" call; 2) contact could not be made with the residence of origin
of the call; 3) upon arrival, the deputy observed a pair of female shoes in a position that
indicated that someone had been "drug out of them;" 4) the door was ajar or partly opened;
5) appellant came to the door and was told to come out; 6) even though drawn, the officers'
guns were held down to their sides; 7) the guns were holstered as soon as appellant
stepped out and Officer Tellez could search him for weapons; 8) she heard crying coming
from inside the house; 9) she observed a female who appeared to be upset and had puffy
eyes; and, 10) while investigating the circumstances surrounding the "911 hang-up" call
she observed what looked to be marihuana in plain view.
Officer Tellez testified that: 1) he responded to a 911call that he believed involved
family violence; 2) upon his arrival at the scene, the house was dark and the front door
ajar; 3) while approaching the front door, appellant walked out in an "angry manner;" 4) he
detained appellant at the door and, after frisking him for weapons, began investigating the
circumstances surrounding the "911 hang-up" call; 5) he remained outside with appellant
and made sure he would not go anywhere before the investigation was completed; 6) he
saw a crying female at the door; 7) he kept appellant separated from the female as part
of the procedure required in "disturbance" calls; and, 8) upon learning of Huff's discovery
of marihuana in the bedroom, he asked to whom it belonged to which appellant responded
that it was his and that he just smoked one joint earlier. Furthermore, Tellez testified that
up to the point of appellant's admission appellant was not under arrest and that he was
being detained for the safety of the officer as well as that of the complainant who called.
Based on the foregoing evidence, we conclude that one could reasonably infer that
appellant was not under arrest when he made his statements regarding the marihuana.
And, because he was not under arrest, the deputies were not obligated to Mirandize him.
So too may one reasonably conclude that the marihuana was admissible as it had not
been obtained through an illegal seizure stemming from an unlawful arrest. Again, as
mentioned previously, appellant was not placed under arrest until after he stated that the
marihuana belonged to him. One may also reasonably conclude that the circumstances
justified entry into the abode for the purpose of investigating the safety of others via the
doctrine of emergency or exigent circumstances. See Torrez v. State, 34 S.W.3d 10, 15
(Tex. App. - Houston [14th Dist.] 2000, pet. ref'd.) (stating that officers may conduct a
warrantless search when there is reasonable cause to believe a person's health or safety
is threatened.). And, being legitimately within the abode, the officers were entitled to seize
contraband within plain view. See Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App.
2000)(discussing the elements required for the "plain view" doctrine.) Accordingly, we
overrule issues two and three.
Issue Four: Chain of Custody
In his fourth issue, appellant challenges the admission of the marihuana found in
his house because there was a "fatal flaw in the chain of custody." Appellant contends that
while Huff seized the marihuana and deposited it in the "police property room box," a
deputy who was not at the scene of the crime and who never handled the evidence brought
it to court. Furthermore, there were "no signatures [of the deputy] to indicate that he had
ever handled the evidence before it was brought to court."
Again, appellant contends that the marihuana was inadmissible. This is allegedly
so because the State did not prove the chain of custody between the time Huff initially
obtained possession of the drug from appellant's residence and the time Tellez picked it
up from the police station and brought it to court. However, Huff testified that she retrieved
the evidence from the crime scene and deposited it in the police property room lock box.
Thereafter, Tellez testified that he retrieved the evidence from the police property room and
brought it to court. The county's forensic chemist then identified the State's exhibit as that
which was tested for marihuana. From this we see that the State established the beginning
and end of the chain of custody. Without evidence of tampering, questions involving gaps
in the chain of custody go to the weight of the evidence, not its admissibility. Lagrone v.
State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997), cert. denied, 522 U.S. 917, 118
S.Ct. 305, 139 L.Ed.2d 235 (1997); Durrett v. State, 36 S.W.3d 205, 208 (Tex. App. - -
Houston [14th Dist.] 2001, no pet.); Garner v. State, 939 S. W. 2d 802, 804-805 (Tex.
App. - - Fort Worth 1997, pet. ref'd.). Thus, the marihuana was admissible, and, any
questions regarding the gaps merely affected the weight to be accorded the evidence by
the fact-finder. Lagrone v. State, supra; Durrett v. State, supra; Garner v. State, supra.
This is especially so given the want of evidence suggesting that anyone tampered with the
substance once taken into custody by Huff. Accordingly we overrule appellant's fourth
issue.
Issue Five: Improper Jury Contact
In his fifth issue, appellant complains that the trial court erred by failing to grant his
motion for mistrial. This was allegedly so because the prosecuting attorney and a witness
in the case (also an employee with the District Attorney's office) made contact with a juror,
Neal Goren (Goren). The contact occurred while Goren was having car trouble. The two
offered Goren the use of a cell phone to call for assistance. According to appellant, this
act "constituted an unsolicited favor" by the prosecuting attorney and the witness, which
created a favorable influence for the State. Moreover, appellant was "not afforded an
opportunity to render a comparable favor" to Goren or another juror.
According to article 36.22 of the Texas Code of Criminal Procedure, "[n]o person
shall be permitted to converse with a juror about the case on trial except in the presence
and by the permission of the court." Tex. Code Crim. Proc. art. 36.22 (Vernon Supp.
2002). When a juror converses with an unauthorized person about the case, injury to the
accused is presumed, and a new trial may be warranted. Quinn v. State, 958 S.W.2d 395,
401 (Tex. Crim. App.1997) (citing Robinson v. State, 851 S.W.2d 216, 230 (Tex. Crim.
App. 1991). However, appellant has the burden of proving the allegation of juror
misconduct. Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App.1995),cert. denied,
517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996). In the case at bar, the record
consisted of the trial court speaking with Goren regarding the aforementioned incident.
The court asked Goren if the "contact cause[d] [him] to have any bias for or against either
side today?" To which Goren stated that it did not. Furthermore upon defense counsel's
questioning, the trial court was told that Goren's battery had died and that the prosecutors
offered the use of a phone. Furthermore, once Goren was recognized as a juror involved
in the case, they instructed him that they could not talk to him and left. Thus it is clear from
the record that no discussion of the case occurred. Therefore, we overrule this issue.
Issue Six: Instructed Verdict
Appellant, via his sixth issue, contends the trial court should have granted him an
instructed verdict because the marihuana was illegally seized, his oral statements were
illegally obtained, and the chain of custody was insufficiently established. In effect, he
renewed the same objections to the evidence previously urged. However, by our resolution
of appellant's issues two, three, and four, we determined that the evidence was admissible.
So, the trial court did not err in refusing to grant an instructed verdict. Accordingly, the sixth
issue is overruled.
Issue Seven: Unsworn Jury
Finally, appellant claims that the trial court erred in rendering judgment on the jury's
verdict because the "record does not contain the oath language required by" article 35.22
of the Texas Code of Criminal Procedure. Because the record fails to show that the oath
was administered, then the verdict is allegedly "null and void." And, because the jury's
verdict is supposedly void, the judgement is void as well.
We note that the record reflects that the trial court uttered the following: "Jurors, first
thing, please, stand for me and raise your right hand. This is your oath as a jury." The
statement is followed by the following notation: "(The jury was sworn.)" It is apparent, from
the record, that the jury received the oath required by law to be given a jury. Thus, we
overrule his seventh issue.
Accordingly, we affirm the judgment.
Do not publish.