Robert Scheidt v. State

Opinion

NO. 07-02-0364-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

NOVEMBER 27, 2002

______________________________

ROBERT SCHEIDT,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

NO. 99,705-2; HON. PAMELA C. SIRMON, PRESIDING _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ. ⁽¹⁾

Appellant Robert Scheidt (Scheidt) filed a notice of appeal in this court from his conviction of two traffic violations in the Amarillo Municipal Court, Potter County, Texas. The Potter County Court at Law previously dismissed Scheidt's appeal of those convictions for want of jurisdiction. After perfecting his appeal, Scheidt filed various documents with this court illustrating that he was attempting to appeal the Amarillo Municipal Court judgment directly to this court as opposed to appealing the dismissal by the Potter County Court at Law. So, we directed him by letter dated October 29, 2002, to tell us in writing why the pending appeal should not be dismissed for want of jurisdiction.

In his response, Scheidt failed to clarify whether the appeal is one directly from the Amarillo Municipal Court or the Potter County Court at Law. Instead, he represents that he perfected his appeal to this court in accordance with the law and should we attempt to remand the proceeding to the county court at law, he will "exhaust remedy in the State courts to have the appeal heard by a competent judiciary" because he "has no intention of submitting himself repeatedly to the abuses imposed on him by the courts below. . . ." So too does he castigate this body for "ignoring" his motions to 1) recuse the judge of the county court at law from a proceeding that does not pend before her and 2) to order that same judge to show cause why she should not be held in contempt.

A court of appeals only has the jurisdiction provided to it by law. Ex parte Lewis, 663 S.W.2d 153, 154 (Tex. App.--Amarillo 1983, no writ) (holding that the jurisdiction of the Court of Appeals is established by various constitutional and statutory provisions). Pursuant to statute, the appellate courts for the Amarillo Municipal Court of record are the county courts at law in Potter and Randall Counties. Tex. Gov't Code Ann. §30.00931 (Vernon Supp. 2002). No authority grants us the right to hear a direct appeal from a conviction by the Amarillo Municipal Court. Therefore, to the extent that Scheidt is attempting to appeal directly to us from that court, his appeal is dismissed for want of jurisdiction. To the extent that Scheidt is challenging the dismissal of his appeal by the Potter County Court at Law for want of jurisdiction, we have jurisdiction of that matter.

Also pending before us are two motions of Scheidt. Through the first, he asks that we recuse the Potter County Court at Law judge, and, through the second, that we hold the same judge in contempt for purportedly violating our abatement order of September 12, 2002. Scheidt provides no legal authority to support his proposition that an appellate court may order the recusal of a county court at law judge through a proceeding other than mandamus. Nor have we found any authority that enables us to recuse a trial judge from a case that does not pend before her. Consequently, the motion to recuse is overruled.

Regarding the motion to show cause, we reviewed the record of the proceeding held by the county court at law per our abatement order. The transcript of the abatement hearing illustrates that the trial court held the hearing as directed, even though Scheidt refused to participate and actually left the proceeding. On the other hand, nothing appears of record from which one could reasonably infer that our abatement order was violated by the county court at law. Nor does Scheidt assert (other than by a general, factually absent conclusion) what the trial court should have done but failed to do to avoid purportedly violating our abatement order. Accordingly, we deny that motion as well.

Finally, we admonish Scheidt to comply with the rules of appellate procedure in prosecuting this appeal. See Kindley v. State, 879 S.W.2d 261, 264 (Tex. App.--Houston [14^th Dist.] 1994, no pet.) (holding that individuals acting pro se on appeal must comply with the applicable rules of appellate procedure). Furthermore, we recognize that advocates of a position must advocate their position zealously. Yet, briefs, motions, or other documents tendered to this court which contain slanderous, deceitful, disrespectful, factually baseless, or uncivil comments or accusations or which are of such tone will be struck and returned. And, the continuation of such conduct will result in the implementation of other appropriate sanctions, including the dismissal of the appeal.

Per Curiam

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2002).

the defendant is guilty, he is guilty only of the lesser offense. Id. Each definition of a lesser-included offense in CCP art. 37.09 is stated with reference to "the offense charged," and specifically states the manner in which the lesser-included offense differs from the offense charged. See Bell v. State, 693 S.W.2d 434, 438 (Tex.Crim.App. 1985). Thus, in considering appellant's issues, we must consider the offense as charged by the language of the indictment and compare the charged offense with the statutory elements of the lesser-included offenses which appellant alleges should have been charged. Id. at 438, n.8; Sanders v. State, 664 S.W.2d 705, 708 (Tex.Crim.App. 1982) (op. on rehr'g.)

ISSUE ONE: RESISTING ARREST

Appellant's first issue urges that the offense of resisting arrest was a lesser-included offense. Proof of the offense of resisting arrest requires proof that a person intentionally prevented or obstructed a person he knew to be a peace officer or someone acting in the presence and at the direction of a peace officer from effecting an arrest by using force against the officer or another. See Tex. Pen. Code Ann. § 38.03(a) (Vernon 1994); ⁽³⁾ see Lewis v. State, 30 S.W.3d 510, 512 (Tex.App.--Amarillo 2000, no pet.).

Proof that a defendant resisted arrest must include proof that the defendant used force against the officer in question. See id. The charge against appellant as set out in the indictment did not require proof that appellant used force against Tyra. The charge against appellant required proof of a threat of imminent bodily injury toward Tyra (assault) and the use or exhibition of a firearm during the commission of the threat. Proving that appellant resisted arrest would have required additional proof of the actual use of force against Tyra or another officer. Id. Thus, resisting arrest was not a lesser-included charge under any subsection of CCP art. 37.09, and the trial court did not commit error in refusing to charge the jury on resisting arrest. Appellant's first issue is overruled.

ISSUE TWO: DEADLY CONDUCT

Appellant's second issue asserts that the offense of deadly conduct was a lesser- included offense. A person commits the offense of deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. See PC § 22.05. When the offense as charged in the indictment of appellant is compared to the elements of deadly conduct, however, it is apparent that proof of the offense with which appellant was charged did not require proof that appellant engaged in conduct which placed Tyra in imminent danger of serious bodily injury. Appellant's threat to blow Tyra's head off did not require proof that Tyra was placed in imminent danger of serious bodily harm, even if the proof might have been sufficient for a finding that he was in such danger. Nor did proof that appellant exhibited a firearm while making the threat require proof that Tyra was in imminent danger of serious bodily injury.

Appellant relies on the case of Bell v. State in arguing that deadly conduct is a lesser-included offense of aggravated assault. See Bell, 693 S.W.2d at 438-39. However, the facts of appellant's case distinguish it from Bell. In Bell, the Court of Criminal Appeals held that deadly conduct was a lesser-included offense of aggravated assault. Id. In so holding, however, the court specifically stated that whether one offense bears such a relationship to the charged offense so as to constitute a lesser-included offense is an issue which must be determined on a case-by-case basis. Id. at 436. According to the court:

A given section of the Penal Code may define more than one way in which an offense can be committed. An allegation that an offense has been committed in one way may include a lesser offense, while an allegation that the offense was committed in another way would not include the lesser offense.

Id.

In Bell, the indictment alleged that the defendant: ". . . did then and there knowingly and intentionally use a deadly weapon, to wit: a firearm, and did then and there threaten George Smith with imminent bodily injury by the use of said deadly weapon." Id. Comparing the elements of the offense as charged in the indictment to the elements of deadly conduct, the court found that the precise issue is "whether proof of threatening another with imminent bodily injury by using a deadly weapon constitutes proof that the actor engaged in conduct that placed another in imminent danger of serious bodily injury." Id. at 438 (emphasis in original). The court further stated that:

Patently, threatening another with imminent bodily injury is engaging in conduct. When that threat is accomplished by the use of a deadly weapon, by definition the victim is "exposed" to the deadly character of the weapon and the inherent risk of serious bodily injury. The danger of serious bodily injury is necessarily established when a deadly weapon is used in the commission of an offense. It follows, therefore, that proof of threatening another with imminent bodily injury by the use of a deadly weapon constitutes proof of engaging in conduct that places another in imminent danger of serious bodily injury.

Id. at 438-39 (emphasis in original). Thus, the court held that, because in this particular case the statutory elements of deadly conduct would be established by proof of the same facts required to establish the commission of the offense as charged in the indictment, the offense of deadly conduct was a lesser-included offense of aggravated assault by use of a deadly weapon. Id. at 439.

In appellant's case, however, the indictment reads differently than the language used in the indictment that was central to the Bell court's disposition of that case. Whereas the indictment in Bell charged the defendant in that case with committing the offense of aggravated assault by "using" a deadly weapon, the indictment in appellant's case charged appellant with committing the offense by "using or exhibiting" a deadly weapon. Thus, proving the offense as alleged in the indictment does not require proof that appellant "used" a deadly weapon; proof that appellant "exhibited" a deadly weapon in the commission of the offense would suffice. The difference is dispositive, as it does not necessarily follow that the danger of serious bodily injury is established when a deadly weapon is "exhibited" in the commission of the offense as opposed to being "used." Therefore, under the circumstances of this case, deadly conduct is not a lesser-included offense of aggravated assault as charged because the statutory elements of deadly conduct would not necessarily be established by proof of the same or less than all the facts required to establish the commission of the offense charged. The trial court, therefore, did not commit error in refusing to charge the jury on deadly conduct as a lesser-included charge. Appellant's second issue is overruled.

CONCLUSION

Having overruled both of appellant's issues, we affirm the judgment of the trial court.

Phil Johnson

Justice

Publish.

1. As it turned out, the pickup was stolen.

2. Further references to a provision of the Code of Criminal Procedure will be by reference to "CCP art. _."

3. Further reference to a provision of the Penal Code will be by reference to "PC §_."