State v. Detria McIntosh

• Court: Court of Appeals of Texas
• Decided: May 13, 2003
• Docket: 07-02-00517-CR
• Status: Published

Opinion

NO. 07-02-0517-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 13, 2003

______________________________

THE STATE OF TEXAS,

Appellant

v.

DETRIA MCINTOSH,

Appellee _________________________________

FROM THE 31^ST DISTRICT COURT OF HEMPHILL COUNTY;

NO. 2523; HON. STEVEN R. EMMERT, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

The State of Texas (the State) appeals from an order quashing part of an indictment accusing Detria McIntosh (appellee) of delivering a controlled substance within a drug-free school zone. According to the State, as uttered in its sole issue, the trial court erred in removing that portion of the indictment charging appellee with committing the act within 1000 feet of "premises leased by the Canadian Independent School District . . . ." We overrule the point and affirm the order for the following reasons.

First, the State argued below that the indictment was accurate because the lease in question involved the lease of educational services from the Canadian School District by an entity operating a youth boot camp, i.e. that the boot camp was leasing services from the school district which triggered application of §481.134 of the Texas Health Code. ⁽¹⁾ On appeal, it argues that the lease was for real property (as opposed to services) by the Canadian School District from those operating the boot camp. As can be seen, the argument asserted below by the State does not comport with that urged on appeal. Thus, the issue has not been preserved for review. Livar v. State, 929 S.W.2d 573, 576 (Tex. App.--Fort Worth 1996, pet. ref'd) (stating that a complaint urged on appeal that fails to comport with the complaint urged at trial results in the waiver of the complaint).

Alternatively, to the extent that the State now argues that the agreement involved the lease of realty, we also note that it told the trial court that it "would just say, this is a lease for services." To the extent it represented to the trial court that the agreement was actually one for services, it effectively admitted that it was not one for realty and, thereby disproved its current argument. Thus, the trial court did not abuse its discretion in granting the motion to quash. Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1980) (stating that the standard of review applicable when reviewing decisions quashing an indictment is one of abused discretion).

Accordingly, we affirm the order of the trial court.

Brian Quinn

Justice

Do not publish.

1. Under the provision, the delivery of less than one gram of a controlled substance "in, on or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board" is a felony of the third degree. Tex. Health & Safety Code Ann. §481.134(d) (Vernon 2003) (emphasis added). As can be seen, the statute contemplates the lease, ownership or rental of real property.

attempts to prove that the variance prejudiced him in any material way, as required by authority. See Santana v. State, No. 1780-00, p.12 (Tex. Crim. App. October 31, 2001).

Moreover, as alleged in the indictment and described in the jury charge, the accusations incorporated the elements of aggravated assault as defined in §22.02 of the Texas Penal Code. The inclusion of the names of other defendants in the indictment was unnecessary to aver a crime under that statute. ⁽²⁾ And, the accusations as described in both the indictment and jury charge encompassed the same elemental facts illustrating the same criminal act occurring on the same day and involving the same named victim. Given this, one can reasonably conclude that the indictment not only informed appellant of the accusation against him in a manner sufficient to enable him to prepare a defense but also that the inclusion of the names of four other co-defendants in the instrument did not subject appellant to the risk of another prosecution for the same crime. See Golihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001) (holding that a variance is not material or fatal when the indictment informed the defendant of the charge sufficiently to allow him to prepare a defense and when it would not subject the defendant to the risk of being prosecuted later for the same crime). Consequently, the variance in question was not material. Nor was the evidence presented at trial legally insufficient to support conviction for aggravated assault.

Accomplice-Witness Rule

Next, appellant contends that the trial court erred in failing to instruct the jury on the accomplice witness rule since one or more accomplices appeared and testified against appellant. The State concedes that such an instruction should have been provided to the jury. However, neither the State nor appellant requested same. So, to warrant reversal, the record must show that the error caused appellant egregious harm. Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). It does not.

The accomplice witness rule obligated the trial court to inform the jury that a conviction cannot be based upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant to the crime. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon Supp. 2001). The record before us is replete with evidence connecting appellant to the aggravated assault. Indeed, appellant himself testified that he held and fired the gun in the direction of Sergio Rodriguez, though allegedly in self-defense. Given appellant's own admission which indisputably tied him to the assault, the failure to direct the jury to find evidence connecting appellant to the crime (in addition to that proffered by the accomplices) did not egregiously harm him.

Ineffective Assistance of Counsel

Finally, appellant claims that his trial counsel was ineffective. This was allegedly so because counsel represented both appellant and co-defendant Rivas at trial, which joint representation created a conflict of interest. We overrule the point.

While representation of multiple defendants in the same suit may result in the denial of effective counsel, multiple representation does not per se equate ineffective assistance. James v. State, 763 S.W.2d 776, 778 (Tex. Crim. App. 1989). Moreover, when the appellant failed to object at trial to multiple representation, as appellant did here, it was incumbent upon him to show some actual, not speculative, conflict, id. at 778-79, that adversely affected specific and material instances of counsel's performance. Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). Finally, an actual conflict exists when counsel is required to make a choice between advancing appellant's interests in a fair trial or advancing those of the other client to the detriment of appellant's. Id.

Here, appellant posited that a conflict arose when the prosecution tendered into evidence the statement of co-defendant Rivas. Therein, Rivas identified appellant as the one who fired the shotgun. Thus, through the statement, appellant's co-defendant allegedly helped the State identify appellant as the shooter. This could be of some import had no one else provided the same information. Yet, as appellant acknowledged in his brief, various accomplice witnesses who were not being tried with appellant also identified appellant as the shooter. More importantly, appellant himself stated that he was the one who discharged the firearm. Given that Rivas statement was merely cumulative of other testimony, including that of appellant's, we cannot say that it somehow placed the co-defendants at odds with each other. ⁽³⁾

Appellant also suggests that "the fact that co-defendant Rivas was tried in the same trial denied appellant his right to confront and cross-examine the witness." How this created a conflict of interest goes unexplained. Nevertheless, reason compels that before the supposed inability to confront and cross-examine could be considered detrimental to appellant, there must be indication that confrontation and cross-examination would have garnered information beneficial to appellant. Yet, the latter does not offer explanation as to what that helpful information was, assuming arguendo that it even existed. Nor does he cite us to anything of record evincing what useful information could have been obtained through cross-examination. Consequently, we are being asked to act upon mere speculation, which we cannot do.

Appellant also argues that he and his co-defendant were placed "in an adversarial posture" because appellant testified that Rivas "lied in his statement" when examined by the State at trial. Yet, we were not cited, by appellant, to any portion of the record supporting this contention. Furthermore, it is not our duty to parse through the record to find basis for contentions offered by the litigants. That is the duty of the litigants. Tex. R. App. Proc. 38.1(h). And, should they fail in that regard, they waive their contention. Labrador Oil Co. v. Norton Drilling Co., 1 S.W.3d 795, 802-803 (Tex. App.--Amarillo 1999, no pet.).

Also, whether the supposed adversarial posture between appellant and Rivas adversely affected specific and material instances of counsel's performance also goes undeveloped. Rather, appellant merely concludes that it "must have," without offering any examples of when or how it did. Given this, we cannot say that he carried his burden as imposed by Monreal.

Accordingly, we affirm the judgment of the trial court

Do not publish.

1. Even though appellant identifies his first two issues as pertaining to the legal and factual sufficiency of the evidence, we find his argument encompasses legal sufficiency only, therefore we only address whether the evidence was legally sufficient.

2. One commits assault when he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann

. §22.01(a)(1) (Vernon Supp. 2001). One commits aggravated assault when he commits assault under §22.01 and causes serious bodily injury to another or uses or exhibits a deadly weapon during the commission of an assault. Id. at §22.02(a) & (b). Here, the indictment read that appellant and four other named individuals "did then and there intentionally, knowingly, or recklessly cause serious bodily injury to Sergio Rodriguez, by shooting him with a firearm, a deadly weapon." Furthermore, through the charge, the jurors were told that they could convict appellant if they concluded, beyond reasonable doubt, that he "did then and there intentionally, knowingly, or recklessly cause serious bodily injury to Sergio Rodriguez, by shooting him with a firearm, a deadly weapon."

3.

Appellant suggests that maybe appellant would not have admitted to firing the shotgun had counsel not represented Rivas. Maybe so. Maybe not. Maybe this writer would have been a seven foot tall millionaire professional basketball player had he obeyed his mother and drank his milk when young. Maybe appellant would have simply ignored the testimony of his alleged accomplices which identified him as the shooter. Maybe if a hearing was held to garner evidence addressing appellant's claim of ineffectiveness, we would know one way or the other. Yet, no such hearing was held. Nor are we afforded Merlin's magic ball with which to peer into and devine what could have been. Thus, we can only guess at what would have happened if the facts before us were not the facts before us. And, guessing neither plays a part in nor provides basis for judicial decision making, though some may believe that is all we do.