William Frank Bane v. State

• Court: Court of Appeals of Texas
• Decided: December 11, 2018
• Docket: 01-17-00747-CR
• Status: Published

Opinion

Opinion issued December 11, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00746-CR NO. 01-17-00747-CR NO. 01-17-00748-CR ——————————— CHARLES ERVIN NELSON, WILLIAM FRANK BANE, JOSEPH SAVOIE, Appellants V. THE STATE OF TEXAS, Appellee

On Appeal from the County Court Lampasas County, Texas Trial Court Case Nos. 20067, 20184, 20080

MEMORANDUM OPINION

In these three cases that were tried together, a jury convicted appellants

Charles Ervin Nelson and Joseph Savoie of the Class A misdemeanor offense of possessing an implement of cockfighting.1 The trial court assessed their punishment

at confinement for one year, probated for one year, and imposed a $2,000 fine. The

jury also convicted appellant William Frank Bane of the Class C misdemeanor

offense of attending a cockfighting exhibition as a spectator.2 The trial court assessed

Bane’s punishment at a $500 fine.

On appeal, the appellants raise numerous issues challenging their convictions,

including (1) challenges to the trial court’s jurisdiction; (2) challenges to the

sufficiency of the evidence; (3) Fourth and Fifth Amendment challenges, including

the lack of probable cause to support the search warrant and an inadequate affidavit

to support the search warrant; (4) violations of Brady v. Maryland; (5) improper

exclusion of a witness’s testimony; (6) failure to instruct the jury on a statutory

defense; and (7) double jeopardy, among other challenges.3

1 See TEX. PENAL CODE ANN. § 42.105(b)(5) (West 2016) (providing that person commits offense if person knowingly “manufactures, buys, sells, barters, exchanges, possesses, advertises, or otherwise offers a gaff, slasher, or other sharp implement designed for attachment to a cock with the intent that the implement be used in cockfighting”), § 42.105(g) (providing that offense under subsection (b)(5) is Class A misdemeanor). 2 See id. § 42.105(b)(6) (providing that person commits offense if person knowingly attends exhibition of cockfighting as spectator), § 42.105(g) (providing that offense under subsection (b)(6) is Class C misdemeanor unless person has been previously convicted of offense under that subsection). 3 The charge against appellant Nelson was tried in trial court cause number 20067 and resulted in appellate cause number 01-17-00746-CR. The charge against appellant Bane was tried in trial court cause number 20184 and resulted in appellate cause number 01-17-00747-CR. The charge against appellant Savoie was tried in 2 We affirm.

Background

In June 2016, Investigator J. Seery with the Lampasas County Sheriff’s

Department was contacted by a senior investigator with the Humane Society of the

United States who informed Seery that he had an informant who lived in the

Lampasas area and wanted to pass on to local law enforcement information about a

cockfighting operation. Based on the information provided by the informant,

Investigator Seery and another officer went to the area described and observed a

“lean-to building,” a couple of smaller buildings, and a “pit for fighting cocks.”

Investigator Seery testified that, based on the design of the pit, it was “obvious” that

it was intended for cockfighting.

Investigator Seery set up a camera on a public road outside the entrance to this

location to determine if, as reported by the informant, a large number of people were

to enter the property. On June 11, 2016, the date supplied by the informant, the

camera transmitted to Investigator Seery pictures of numerous cars assembling on

the property. He estimated that “a couple hundred people” were at the property on

trial court cause number 20080 and resulted in appellate cause number 01-17- 00748-CR. The Texas Supreme Court, pursuant to its docket-equalization authority, transferred these appeals from the Third Court of Appeals in Austin to this Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2013) (“The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer.”). 3 this day. Investigator Seery obtained a search warrant for the property, which

allowed the officers to search for cockfighting equipment and paraphernalia.

The Sheriff’s Department had the assistance of a Texas Department of Public

Safety helicopter when executing the search warrant. Investigator Seery testified that

pandemonium ensued when law enforcement arrived at the property, with people

jumping fences and running away, and other people driving through bushes and

getting stuck in the mud. The trial court admitted a copy of the video of the encounter

taken from the helicopter.

Investigator Seery testified that it was “obvious” that a cockfighting event was

occurring when law enforcement arrived at the property. He observed numerous

people running away from the area, and he saw live roosters in the fighting pit, as

well as dead roosters lying in various locations around the pit. The trial court

admitted photographs depicting the set-up of the pit, as well as some of the live and

dead roosters in the area. Investigator Seery observed wounds on the dead roosters,

and these roosters had bands around their legs where the participants would strap

sharp instruments called “gaffs” or “slashers” to cause injury to other roosters during

the fight. These instruments had been removed from the dead roosters, but some of

the live roosters recovered from an area underneath the fighting pit still had gaffs

strapped to their legs. Investigator Seery also observed a box at the scene that

4 participants placed the roosters in to allow the participants to strap the instruments

to the rooster’s legs before a fight.

The officers received information that spectators were charged $30 to park

and enter the event, and participants were charged $350 to enter their roosters in the

fight. Most of this money was used as prize money for the individual who won the

event. Investigator Seery observed a board that displayed numbers assigned to the

roosters, as well as which roosters had won or lost fights, and he also observed

betting slips at the scene, as well as a scale next to the board. Investigator Seery

identified each of the three appellants as individuals he encountered during the raid

on the property.

Investigator M. Barnes also participated in the execution of the search

warrant. Immediately upon arriving at the entrance to the property, Investigator

Barnes started chasing a man who was fleeing from the scene on foot. Investigator

Barnes was unable to apprehend this man, but the man threw a grocery bag into a

tank while he was running, and Barnes recovered the bag and its contents. The bag

contained two plastic containers that held a total of about $19,000.

Investigator Barnes also searched appellant Nelson’s vehicle. He discovered

a box, which had a label reading “C.E. Nelson” on top, sitting on the passenger

floorboard. The box contained numerous gaffs—defined in the Penal Code as “an

artificial steel spur designed to attach to the leg of a cock to replace or supplement

5 the cock’s natural spur”4—and knives. Investigator Barnes testified that cockfighting

participants typically attach the gaffs to the roosters by wrapping the leg in moleskin

and using tape and wax string. The box found in Nelson’s vehicle also contained

moleskin, wax string, scissors, and guards to protect the person from cutting himself

on the gaffs. This box was admitted into evidence.

Investigator Barnes also testified that officers recovered a tackle box

belonging to appellant Savoie. Due to a misunderstanding concerning which officer

initially retrieved the box, the county attorney indicated that he would not accept

charges of possession of cockfighting paraphernalia against Savoie. However,

Savoie then contacted Investigator Barnes, claiming that the tackle box was his and

that he “had gaffs and other property that was taken from him out in the field.” The

box that Savoie claimed was also admitted into evidence. Investigator Barnes

testified that the contents of the box included strips of moleskin, knife guards,

knives, a training spur used to train roosters to fight without injuring them, scissors,

and wax string.

Finally, Investigator Barnes testified that he had heard appellant Bane testify

at a prior hearing before the justice of the peace. Bane admitted being at the property

at the time of the raid, although he stated that he “was just there drinking beer with

his friends.” Bane also stated that he had paid $35 to get onto the property.

4 See TEX. PENAL CODE ANN. § 42.105(a)(4). 6 The appellants indicated that they wished to call a witness, Steve Perry, to the

stand. The prosecutor requested that he be allowed to question Perry on voir dire.

Perry stated that he was not at the property on June 11, 2016, and he had not been

involved in setting up or organizing the cockfighting event. He stated that the

appellants had asked him to testify because he had been involved in drafting Penal

Code section 42.105, which criminalizes cockfighting, and he intended to present

testimony concerning one of the defenses built into the statute. The defense provides

that it is an affirmative defense to prosecution under section 42.105 that the person’s

conduct “was incidental to collecting bridles, gaffs, or slashers.” See TEX. PENAL

CODE ANN. § 42.105(c)(2) (West 2016); see also id. § 42.105(a)(5) (defining

“slasher” as “a steel weapon resembling a curved knife blade designed to attach to

the foot of a cock”). Perry agreed with the State that he intended to testify about the

status of the law, and he stated, “I just want to testify. I mean, I’ve got information I

think the jury needs to hear.” The trial court refused to allow Perry to testify, ruling

that the court would provide the law to the jury. The appellants did not call any other

witnesses.

During the charge conference, none of the parties presented any objections to

the language of the charges. The charges for appellants Nelson and Savoie—who

were both charged with possession of cockfighting implements—did not include an

7 instruction that it was a defense to prosecution that their conduct was incidental to

collecting gaffs or slashers.

Ultimately, the jury found appellants Nelson and Savoie guilty of possession

of cockfighting implements, a Class A misdemeanor, and the jury found appellant

Bane guilty of attending a cockfight as a spectator, a Class C misdemeanor. The trial

court sentenced both Nelson and Savoie to confinement for one year, probated for

one year, and imposed a $2,000 fine. The trial court imposed a $500 fine on Bane.

This appeal followed.

Jurisdiction of County Court

In several issues, the appellants contend that the Lampasas County Court

lacked jurisdiction over their cases. Specifically, they argue that the State of Texas

had no standing to sue or bring charges against them; that the county attorney and

the trial court acted “outside their public capacity” which “removes standing and

immunity from them”; that the State never established who was injured by the

alleged offenses; and that the trial court did “not have subject matter jurisdiction

over common law issues.”

Constitutional county courts, such as the Lampasas County Court, have

“exclusive original jurisdiction of misdemeanors other than misdemeanors involving

official misconduct and cases in which the highest fine that may be imposed is $500

or less.” TEX. GOV’T CODE ANN. § 26.045(a) (West Supp. 2018); TEX. CODE CRIM.

8 PROC. ANN. art. 4.07 (West 2015) (“The county courts shall have original

jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given

to the justice court, and when the fine to be imposed shall exceed five hundred

dollars.”); see also TEX. CONST. art. V, § 16 (“The County Court has jurisdiction as

provided by law.”). Constitutional county courts have appellate jurisdiction “in

criminal cases of which justice courts and other inferior courts have original

jurisdiction.” TEX. GOV’T CODE ANN. § 26.046 (West 2004); TEX. CODE CRIM.

PROC. ANN. art. 4.08 (West 2015) (“The county courts shall have appellate

jurisdiction in criminal cases of which justice courts and other inferior courts have

original jurisdiction.”); see TEX. CONST. art. V, § 19 (“Justice of the peace courts

shall have original jurisdiction in criminal matters of misdemeanor cases punishable

by fine only . . . .”).

In this case, Nelson and Savoie were charged with possession of implements

to be used in cockfighting, in violation of Penal Code section 42.105(b)(5). See TEX.

PENAL CODE ANN. § 42.105(b)(5) (“A person commits an offense if the person

knowingly . . . possesses . . . a gaff, slasher, or other sharp implement designed for

attachment to a cock with the intent that the implement be used in cockfighting.”).

This offense is a Class A misdemeanor. Id. § 42.105(g). Class A misdemeanors are

punishable by a fine not to exceed $4,000, confinement in jail for a term not to

exceed one year, or both. Id. § 12.21 (West 2011). As this offense is a misdemeanor

9 other than (1) a misdemeanor involving official misconduct and (2) a case in which

the highest fine that may be imposed is $500, Nelson’s and Savoie’s cases were

within the exclusive original jurisdiction of the Lampasas County Court. See TEX.

GOV’T CODE ANN. § 26.045; TEX. CODE CRIM. PROC. ANN. art. 4.07.

Bane was charged with the offense of attending a cockfighting event as a

spectator, a violation of Penal Code section 42.105(b)(6). See TEX. PENAL CODE

ANN. § 42.105(b)(6) (“A person commits an offense if the person

knowingly . . . attends as a spectator an exhibition of cockfighting.”). This offense

is a Class C misdemeanor. Id. § 42.105(g). Class C misdemeanors are punishable by

a fine not to exceed $500. Id. § 12.23 (West 2011). As this offense was punishable

by a fine only, the justice court of Lampasas County had original jurisdiction over

this case, and the Lampasas County Court had appellate jurisdiction. See TEX.

CONST. art. V, §§ 16, 19; TEX. GOV’T CODE ANN. § 26.046; TEX. CODE CRIM. PROC.

ANN. art. 4.08. The record reflects that Bane was convicted in a jury trial in the

justice court and he then appealed his case to the Lampasas County Court for a trial

de novo. See TEX. CODE CRIM. PROC. ANN. art. 45.042(a)–(b) (West 2018)

(providing that “[a]ppeals from a justice court . . . shall be heard by the county court”

and that, except in circumstance not presented here, “trial shall be de novo”). Bane’s

case was therefore within the appellate jurisdiction of the Lampasas County Court.

Article V, Section 12(b) of the Texas Constitution provides:

10 An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

TEX. CONST. art. V, § 12(b); Teal v. State, 230 S.W.3d 172, 179–80 (Tex. Crim. App.

2007) (noting that charging instrument must charge “a person” with “the

commission of an offense” and that, to confer subject-matter jurisdiction, allegations

in charging instrument must be “clear enough that one can identify the offense

alleged”). The record here contains appellants’ charging instruments—informations

alleging possession of an implement to be used in cockfighting for Nelson and

Savoie, and a complaint alleging attendance at a cockfighting event as a spectator

for Bane—and the language of the charging instruments identifies each appellant

and tracks the statutory language setting out the offenses. Appellants do not

challenge on appeal the sufficiency of the charging instruments. We conclude that

these charging instruments properly vested the Lampasas County Court with

jurisdiction to hear these cases.

Appellants argue that the State is a “corporate fiction” and not a “living,

injured party,” and that it lacks standing to sue and lacks jurisdiction over private

11 property and over persons who are not state employees.5 Appellants cite no law

supporting the proposition that the State lacks standing to enforce criminal statutes

or that the State can only enforce its laws on land owned by the State and against

State employees. Instead, the Texas Constitution provides that the county attorney—

in counties such as Lampasas County that do not have a “resident Criminal District

Attorney”—“shall represent the State in all cases in the District and inferior

courts . . . .” TEX. CONST. art. V, § 21. The Code of Criminal Procedure further

provides that the county attorney “shall represent the State in all criminal cases under

examination or prosecution in said county.” TEX. CODE CRIM. PROC. ANN. art. 2.02

(West 2005); see Medrano v. State, 421 S.W.3d 869, 878 (Tex. App.—Dallas 2014,

pet. ref’d) (stating that courts have long recognized that, along with “various civil

duties,” primary function of county and district attorneys is “to prosecute the pleas

of the state in criminal cases”); Shepperd v. Alaniz, 303 S.W.2d 846, 850 (Tex. Civ.

App.—San Antonio 1957, no writ) (“It has always been the principal duty of the

district and county attorneys to investigate and prosecute the violation of all criminal

laws . . . and these duties cannot be taken away from them by the Legislature and

given to others.”); see also Marshall v. Jerrico, Inc., 446 U.S. 238, 248, 100 S. Ct.

5 To the extent appellants argue that the State and the trial court lacked jurisdiction because the State failed to state a proper claim against the appellants and because “there was no proof, evidence or witness against” appellants, we address those arguments in the section of the opinion concerning sufficiency of the evidence to support the verdict. 12 1610, 1616 (1980) (stating that “wide discretion” is given to criminal prosecutors in

process of enforcing laws and, in adversarial system, prosecutors “are necessarily

permitted to be zealous in their enforcement of the law”). The Lampasas County

Attorney thus has the authority to act on behalf of the State of Texas and prosecute

criminal offenses occurring within Lampasas County.

Sufficiency of the Evidence

Appellants argue that the State failed to present sufficient evidence to support

their convictions.

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Griffin v.

State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016). The jurors are the exclusive

judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge of credibility,

may accept one version of the facts and reject another, and it may reject any part of

a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.

1986); Rivera v. State, 507 S.W.3d 844, 853–54 (Tex. App.—Houston [1st Dist.]

2016, pet. ref’d).

13 We may not re-evaluate the weight and credibility of the evidence or substitute

our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007); Leroy v. State, 512 S.W.3d 540, 543 (Tex. App.—Houston [1st

Dist.] 2016, no pet.). We give great deference to the jury’s credibility

determinations. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). We

resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30

S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Murray v. State, 457 S.W.3d 446,

448–49 (Tex. Crim. App. 2015) (“When the record supports conflicting inferences,

we presume that the factfinder resolved the conflicts in favor of the verdict, and we

defer to that determination.”). Circumstantial evidence is as probative as direct

evidence in establishing guilt, and circumstantial evidence alone can be sufficient to

establish guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013)

(quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). “Each fact

need not point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.” Hooper, 214 S.W.3d at 13.

B. Analysis

To establish that appellants Nelson and Savoie committed the offense of

possessing a cockfighting implement, the State was required to prove that Nelson

and Savoie intentionally and knowingly possessed a gaff, slasher, or other sharp

14 implement designed for attachment to a cock with the intent that the implement be

used in cockfighting.6 See TEX. PENAL CODE ANN. § 42.105(b)(5). With respect to

appellant Bane, the State was required to prove that Bane knowingly attended an

exhibition of cockfighting as a spectator. See id. § 42.105(b)(6). The Penal Code

defines “cock” as “the male of any type of domestic fowl,” “cockfighting” as “any

situation in which one cock attacks or fights with another cock,” “gaff” as “an

artificial steel spur designed to attach to the leg of a cock to replace or supplement

the cock’s natural spur,” and “slasher” as “a steel weapon resembling a curved knife

blade designed to attach to the foot of a cock.” Id. § 42.105(a)(2)–(5).

A person acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective or desire to

engage in the conduct or cause the result. Id. § 6.03(a) (West 2011). A person acts

knowingly, or with knowledge, with respect to the nature of his conduct or to

circumstances surrounding his conduct when he is aware of the nature of his conduct

or that the circumstances exist. Id. § 6.03(b).

6 Appellants Nelson and Savoie argue that they first received a citation for the offense of possession of gambling paraphernalia, which is a separate offense under Penal Code section 47.06, and that the State brought this charge knowing that their gaffs and slashers did not meet the statutory definition of “gambling paraphernalia,” yet this was not disclosed to the jury. Even if Nelson and Savoie were originally cited for possession of gambling paraphernalia, which is not reflected in the appellate record, the State later charged them both by information with the offense of possessing an implement with the intent to use that implement in cockfighting, which is the charge on which the State proceeded to trial and is the charge for which the jury found them both guilty. 15 At trial, the State presented evidence that a confidential informant met with

Investigator Seery of the Lampasas County Sheriff’s Department and informed him

of a cockfighting operation that was to hold an event at a particular location on June

11, 2016. Investigator Seery and another officer went to this location and observed

several buildings and a pit consistent with the type of pits used in cockfights. The

officers placed a camera on another property and set up the camera so that it would

notify the officers when people began arriving at the subject property.

When large groups of people started arriving at the property on June 11,

Investigator Seery obtained a search warrant, and officers from several agencies

conducted a raid of the property. Chaos ensued, and numerous people were able to

flee the property. Officers observed dead and bloodied roosters, some of which had

tape on their legs consistent with having recently had sharp implements attached to

the legs, live roosters underneath the fighting pit, a board keeping track of which

roosters had fought that day, betting slips, and around $19,000 in cash.

Appellants were three individuals at the scene who did not flee. The State

presented evidence that, during the course of the raid, officers searched Nelson’s

truck and found a box that was labeled with Nelson’s name and that contained gaffs

and slashers. Officers also recovered a similar box that Savoie verified belonged to

him and that also contained gaffs and slashers. In addition to gaffs and slashers, the

boxes contained moleskin, wax string, scissors, and knife guards. Officers testified

16 that these items are commonly used to attach gaffs and slashers to roosters before a

fight. The box belonging to Savoie also contained a “training spur” used when

training roosters to fight.

Nelson and Savoie argue that the State failed to present evidence that they

possessed gaffs and slashers with the intent that these implements be used in

cockfighting, as required by section 42.105, pointing out that the gaffs and slashers

were found at the scene in a box and were not attached to a rooster. Section 42.105,

however, does not include language requiring that gaffs and slashers actually be

attached to a rooster, or another type of fowl, for the possession of these items to be

illegal. See id. § 42.105(b)(5). Instead, the statute prohibits the possession of a gaff

or slasher “with the intent that the implement be used in cockfighting.” Id. The State

presented evidence that Nelson and Savoie possessed not just gaffs and slashers

while at a cockfighting event, but that they also possessed items typically used to

attach gaffs and slashers to a rooster’s leg, such as moleskin, wax string, and scissors,

as well as “knife guards” used to prevent cuts while attaching sharp objects to the

roosters.

Considering all of the evidence the State presented, we conclude that a rational

jury could have found, beyond a reasonable doubt, that Nelson and Savoie possessed

gaffs and slashers with the intent that they be used in cockfighting. See id.; see also

Gonzalez v. State, 376 S.W.3d 141, 144 (Tex. App.—Tyler 2012, no pet.) (noting,

17 in sufficiency challenge to conviction for knowingly causing two livestock animals

to fight, that scene of arrest included “array of cockfighting equipment located near

what appeared to be a cockfighting ring,” that this equipment included “fighting

knives, moleskin, leather straps, wax thread, vitamins, and syringes,” and that it was

“difficult to understand why the knives and other paraphernalia would be present” if

defendant was not engaged in fighting chickens).

With respect to Bane, Investigator Barnes testified that Bane had admitted to

being present at the property, although Bane stated that he “was just there drinking

beer with his friends.” Bane also admitted that he had paid $35 to get on the property.

Investigator Seery testified that it was very hot on June 11 when the raid occurred,

there were “a couple hundred people” at the property, and it was “obvious” that a

cockfighting event was occurring at the time of the raid. It was within the province

of the jury, as the exclusive judge of the credibility of the evidence, to disbelieve

Bane’s prior statement that, after paying $35 to get onto the property, he was merely

present at the property on a hot June day to drink with friends and instead to believe

the State’s evidence that Bane was present, along with hundreds of other people, to

witness a cockfighting event. See Rivera, 507 S.W.3d at 853–54 (stating that jury,

as sole judge of credibility, may accept one version of facts and reject another). We

conclude that a rational jury could have found, beyond a reasonable doubt, that Bane

18 knowingly attended an exhibition of cockfighting as a spectator. See TEX. PENAL

CODE ANN. § 42.105(b)(6).

We hold that the State presented sufficient evidence to support appellants’

convictions.

Fourth and Fifth Amendment Challenges

In several issues, appellants raise challenges under the Fourth and Fifth

Amendments. Appellants argue that they were searched on private property without

a warrant and “without an affidavit from a victim particularly describing” the

appellants and their property that officers seized and that the warrantless search was

not justified. Appellants contend that, in obtaining the search warrant for the

property, Investigator Seery improperly “took orders from” a Humane Society

employee in California and a “non-English-speaking person who was possibly paid

to inform” in Texas and that the informant’s information did not constitute exigent

circumstances justifying a warrantless search. Appellants also argue that Investigator

Seery’s affidavit was insufficient to support a determination of probable cause

because it did not reveal the informant’s basis of knowledge or provide sufficient

facts to determine the informant’s veracity and reliability.

Appellants further argue that officers questioned them without giving

Miranda warnings and without allowing the presence of counsel. Appellants also

argue that their identities were used against them when the trial court generated the

19 case names and that their property was used against them after the seizure of the

property.

The appellate record does not include the search warrant or Investigator

Seery’s supporting affidavit. Although the record does include a copy of appellants’

motion to suppress, the record does not contain a ruling by the trial court on this

motion, and the reporter’s record does not contain a hearing on the motion to

suppress. All of appellants’ Fourth and Fifth Amendment challenges require a

determination by the trial court for us to review on appeal, but no such determination

is included in the appellate record. We therefore hold that appellants have presented

nothing for us to review in this regard. See Bonilla v. State, 452 S.W.3d 811, 813

(Tex. Crim. App. 2014) (“The party who complains about the trial judge’s action on

direct appeal bears the burden of objecting at trial and providing a record that shows

the trial judge’s error.”); see also Guzman v. State, 923 S.W.2d 792, 795 (Tex.

App.—Corpus Christi 1996, no pet.) (stating that “[m]ere assertions in a brief will

not suffice to satisfy” burden of presenting sufficient record demonstrating

reversible error); Burks v. State, 904 S.W.2d 208, 209–10 (Tex. App.—Fort Worth

1995, no pet.) (“It is well-settled that the appellant bears the burden of providing the

appellate court with a record sufficient to show error requiring reversal.”); Stewart

v. State, 856 S.W.2d 567, 572 (Tex. App.—Beaumont 1993, no pet.) (stating that

appellant, as party seeking review of alleged trial court error, bears burden to see

20 that sufficient record is presented to appellate court to show that error required

reversal).

Brady Violation

Appellants argue that the State violated the requirements of Brady v.

Maryland when it did not disclose “key exculpatory evidence to the jury and

excluded it from the record.” Specifically, appellants contend that the State violated

Brady by failing to disclose to the jury five memorandums and four DVDs—all of

which contained presentations addressing the constitutionality of statutes like Penal

Code section 42.105—that a man named B.L. Cozad served on the State and the

Lampasas County Sheriff on appellants’ behalf. They argue that this evidence would

have established that they were not guilty because the statute under which they were

charged is unconstitutional.7

Brady requires the prosecution to disclose evidence that is favorable to the

accused when that evidence is material to guilt or punishment. See 373 U.S. 83, 87,

83 S. Ct. 1194, 1196–97 (1963); Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim.

App. 2011) (“Brady held that the State has a constitutional duty to disclose to a

7 Although appellants assert throughout their briefs that Penal Code section 42.105 is unconstitutional, they cite no law supporting this proposition and do not undertake a constitutionality analysis. Therefore, this argument is not preserved. See TEX. R. APP. P. 38.1(i) (providing that appellate briefs “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”). 21 defendant material, exculpatory evidence.”). To establish a Brady violation, an

appellant must demonstrate that (1) the State failed to disclose evidence, regardless

of the prosecution’s good or bad faith; (2) the withheld evidence is favorable to him;

and (3) the evidence is material, that is, there is a reasonable probability that, had the

evidence been disclosed, the outcome of the trial would have been different. Ex parte

Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012); see Strickler v. Greene, 527

U.S. 263, 280, 119 S. Ct. 1936, 1948 (1999) (noting that, in materiality inquiry,

question is whether reasonable probability exists that “had the evidence been

disclosed to the defense,” result of proceeding would have been different) (emphasis

added). Brady is not implicated, however, when the defendant was already aware of

the information. Pena, 353 S.W.3d at 810; Hayes v. State, 85 S.W.3d 809, 815 (Tex.

Crim. App. 2002); see also United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392,

2397 (1976) (stating that Brady applies in situations in which information “had been

known to the prosecution but unknown to the defense”); Ex parte Chavez, 213

S.W.3d 320, 325 (Tex. Crim. App. 2006) (stating that no due process violation

occurs “under circumstances in which the defendant himself already knew about the

exculpatory facts”).

Appellants argue that the State violated Brady by failing to disclose

exculpatory evidence—the memorandums and DVDs provided by Cozad—to the

jury. Brady, however, concerns the State’s duty to disclose exculpatory evidence to

22 the defense. See Strickler, 527 U.S. at 280, 119 S. Ct. at 1948; Pena, 353 S.W.3d at

810. There is no indication that the State withheld the information supplied by Cozad

or any other information from the appellants, and there is also no indication that the

information supplied by Cozad was unknown to the appellants. See Pena, 353

S.W.3d at 810 (stating that State has no duty under Brady when defendant was

actually aware of exculpatory evidence); Hayes, 85 S.W.3d at 815 (stating that

Brady is not implicated when defendant is already aware of information). We

therefore conclude that appellants have not established that the State committed a

Brady violation.8

8 We also note that, although appellants argue that the State should have disclosed this information to the jury, they have not demonstrated that the information provided by Cozad would have been admissible before the jury. This information is in the form of letters and presentations arguing that animal cruelty laws, such as Penal Code section 42.105, are unconstitutional. The constitutionality of a criminal statute is a question of law for the court, not a question of fact for the jury. See Salinas v. State, 464 S.W.3d 363, 366 (Tex. Crim. App. 2015); see also TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007) (providing that jury “is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby”); see also Pena v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011) (“The State does not have a duty to disclose favorable, material evidence if it would be inadmissible in court.”). Appellants raise a similar argument that the State should have disclosed to the jury the fact that the search and seizure of their property occurred without a warrant. However, although appellants cite an article of the Code of Criminal Procedure which sets out the general duties of a district attorney and states that district attorneys “shall not suppress facts,” appellants cite no law requiring the State to disclose information relevant to the propriety of a search to the jury. Instead, it is the trial court, generally in the context of a hearing on a motion to suppress, that addresses complaints concerning the propriety of a particular search. See Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007) (stating that, unless disputed fact issue exists, legality of police conduct regarding searches, seizures, and obtaining evidence is “determined by the trial judge alone, as a question of law”). 23 Double Jeopardy

Appellant Bane argues that the State violated the prohibition against double

jeopardy because he was first tried in the justice of the peace court in December

2016 and, after conviction, he was then tried a second time in the Lampasas County

Court in August 2017.

The Fifth Amendment to the United States Constitution protects against

double jeopardy, providing that no person shall “be subject for the same offense to

be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. The Double

Jeopardy Clause protects an accused against (1) a second prosecution for the same

offense after an acquittal; (2) a second prosecution for the same offense after a

conviction; and (3) multiple punishments for the same offense. Ex parte Amador,

326 S.W.3d 202, 205 (Tex. Crim. App. 2010); Evans v. State, 299 S.W.3d 138, 140–

41 (Tex. Crim. App. 2009).

Contrary to Bane’s assertion on appeal, this case does not involve successive

prosecutions for the same offense. Bane was first charged with attending a cockfight

as a spectator, a Class C misdemeanor punishable by fine only, in the Justice of the

Peace Precinct One of Lampasas County. See TEX. CONST. art. V, § 19 (“Justice of

the peace courts shall have original jurisdiction in criminal matters of misdemeanor

cases punishable by fine only . . . .”); TEX. PENAL CODE ANN. § 12.23 (“An

individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not

24 to exceed $500.”); id. § 42.105(g) (providing that offense under section

42.105(b)(6), punishing attendance of cockfighting exhibition as spectator, is Class

C misdemeanor). The record reflects that a jury found Bane guilty of this offense,

and Bane filed a bond and an appeal to the Lampasas County Court, which ultimately

rendered a judgment of conviction against Bane after a jury trial. Government Code

section 26.046 provides that a constitutional county court, such as the Lampasas

County Court, has “appellate jurisdiction in criminal cases of which justice

courts . . . have original jurisdiction.” TEX. GOV’T CODE ANN. § 26.046; see also

TEX. CODE CRIM. PROC. ANN. art. 45.042(a)–(b) (providing that “[a]ppeals from a

justice court . . . shall be heard by the county court” and that, except in circumstance

not presented here, “trial shall be de novo”).

After his conviction in the justice court, Bane had a statutory right to appeal

the case to the county court and receive a trial de novo. Bane availed himself of this

right. The Lampasas County Court was therefore exercising its appellate jurisdiction

over Bane, and the proceeding in that court was not a successive prosecution after a

conviction in violation of the double jeopardy clause. See TEX. GOV’T CODE ANN.

§ 26.046. We conclude that the proceedings against Bane in the Lampasas County

Court did not violate the prohibition against double jeopardy.

25 Exclusion of Evidence

Appellants argue that the trial court erred by refusing to allow their witness,

Steve Perry, to testify concerning the statutory defenses built into Penal Code section

42.105.

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial

court abuses its discretion when its decision falls outside the zone of reasonable

disagreement, that is, when the decision is “so clearly wrong as to lie outside the

zone within which reasonable people might disagree.” Id. at 83 (quoting Taylor v.

State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)).

Relevant evidence is evidence that has any tendency to make a fact of

consequence more or less probable than it would be without the evidence. TEX. R.

EVID. 401; Henley, 493 S.W.3d at 83. To be relevant, evidence must be both material

and probative. Henley, 493 S.W.3d at 83 (citing Miller v. State, 36 S.W.3d 503, 507

(Tex. Crim. App. 2001)). A defendant has a fundamental right to present evidence

of a defense “as long as the evidence is relevant and is not excluded by an established

evidentiary rule.” Id. (quoting Miller, 36 S.W.3d at 507).

Here, the appellants called Steve Perry to testify on their behalf. The State

questioned Perry on voir dire outside the presence of the jury on the topics that Perry

intended to discuss. Perry agreed with both the State and the trial court that he was

26 not present at the property on June 11, 2016, and that he did not have personal

knowledge of what occurred at the property. He agreed that he had learned about

what had happened from reading offense reports and other materials after the fact.

He stated that he had been involved in the passage of Penal Code section 42.105(c),

which established an affirmative defense to prosecution if the actor’s conduct “was

incidental to collecting bridles, gaffs, or slashers.” See TEX. PENAL CODE ANN.

§ 42.105(c)(2). Perry stated that he would testify concerning the status of the law.

He, however, gave no indication that he had personal knowledge concerning whether

the gaffs and slashers possessed by Nelson and Savoie were collectibles. Instead, the

voir dire questioning of Perry revealed that his potential testimony concerned the

law itself, not the particular facts of the case.

The trial court refused to allow Perry to testify, reasoning that Perry had no

relevant information concerning the events of June 11, 2016, and that it was not

proper for a witness to explain the law to the jury; instead, that was the obligation of

the court in the jury charge, based on the evidence presented at trial.

The jury is the judge of facts; it is the role of the trial court to instruct the jury

on the law relevant to the case. See TEX. CODE CRIM. PROC. ANN. art. 36.13 (West

2007) (“Unless otherwise provided by this Code, the jury is the exclusive judge of

the facts, but it is bound to receive the law from the court and be governed thereby.”);

id. art. 36.14 (West 2007) (providing that trial court shall deliver to jury “a written

27 charge distinctly setting forth the law applicable to the case”); Martinez v. State, 753

S.W.2d 165, 169 (Tex. App.—Beaumont 1988, pet. ref’d) (holding that trial court

did not err in excluding expert testimony concerning law of trusts in misapplication

of fiduciary property case because “it is the trial court’s province to instruct the jury

on the law relevant to the case”). We conclude that the trial court did not err by

excluding Perry’s testimony.

Failure to Give Defensive Instruction

Appellants Nelson and Savoie also argue that the trial court erred by not

including an instruction in the jury charge that it was an affirmative defense to

prosecution that the gaffs and slashers that they possessed were collectibles.

The trial court must provide the jury with “a written charge distinctly setting

forth the law applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14;

Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. App. 2007). The trial court must

instruct the jury on statutory defenses, affirmative defenses, and justifications

“whenever they are raised by the evidence.” Walters, 247 S.W.3d at 208–09; see

also TEX. PENAL CODE ANN. § 2.04(c) (West 2011) (“The issue of the existence of

an affirmative defense is not submitted to the jury unless evidence is admitted

supporting the defense.”). “A defendant is entitled to an instruction on every

defensive issue raised by the evidence, regardless of whether the evidence is strong,

feeble, unimpeached, or contradicted, and even when the trial court thinks that the

28 testimony is not worthy of belief.” Walters, 247 S.W.3d at 209. However, the trial

court has no duty to instruct the jury sua sponte on unrequested defensive issues

“because an unrequested defensive issue is not the law applicable to the case.” Vega

v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). “A defendant cannot

complain on appeal about the trial judge’s failure to include a defensive instruction

that he did not preserve by request or objection: he has procedurally defaulted any

such complaint.” Id.; see Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App.

2018) (stating that if defendant fails to object to absence of “defense-benefitting

instructions” in jury charge, “the trial court will have committed no error at all” by

failing to submit such instructions).

Penal Code section 42.105 prohibits several different acts, including the

possession of “a gaff, slasher, or other sharp implement designed for attachment to

a cock with the intent that the implement be used in cockfighting.” TEX. PENAL CODE

ANN. § 42.105(b)(5). Section 42.105(c) provides that it “is an affirmative defense to

prosecution under this section that the actor’s conduct . . . was incidental to

collecting bridles, gaffs, or slashers.” Id. § 42.105(c)(2).

At the charge conference, Nelson and Savoie objected to the charge solely on

the basis that the trial court lacked jurisdiction over their cases. They did not request

an instruction on Penal Code section 42.105(c), nor did they object to the absence of

such an instruction in the charge. The trial court, therefore, had no duty to sua sponte

29 instruct the jury on this defensive issue, and, by failing to request or object to the

absence of this instruction, Nelson and Savoie procedurally defaulted this complaint.

See Mendez, 545 S.W.3d at 552; Vega, 394 S.W.3d at 519.

Moreover, even if Nelson and Savoie had properly requested an instruction

on section 42.105(c), they were entitled to a jury instruction on this statutory

affirmative defense only if this defensive issue was raised by the evidence at trial.

See Walters, 247 S.W.3d at 208–09. However, no evidence presented at trial raised

this defense. Although Nelson and Savoie argued during their opening statements

and closing arguments that the gaffs and slashers that they possessed were part of a

collection, statements during opening statements and closing arguments are not

evidence. See Ketchum v. State, 199 S.W.2d 581, 597 (Tex. App.—Corpus Christi

2006, pet. ref’d) (“The opening statement in a criminal case is an outline of facts

which the prosecution in good faith expects to prove.”); Parra v. State, 935 S.W.2d

862, 871 (Tex. App.—Texarkana 1996, pet. ref’d) (“The purpose of an opening

statement is to advise the jury of facts relied on and of issues involved, and to give

the jury a general picture of the facts and the situations so that the jury will be able

to understand the evidence.”); see also Cary v. State, 507 S.W.3d 750, 755 (Tex.

Crim. App. 2016) (stating that “arguments of the parties and their trial theories are

not evidence”). Furthermore, although Savoie, in particular, referred to his gaffs and

slashers as “collectibles” when questioning Investigator Seery, Seery did not testify

30 that the gaffs and slashers recovered from Savoie were collectibles, and Savoie’s

questions themselves do not constitute evidence. See Torres v. State, 371 S.W.3d

317, 320 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (“Questions or statements

of counsel not under oath do not constitute evidence.”) (quoting Delgado v. State,

544 S.W.2d 929, 931 (Tex. Crim. App. 1977)).

None of the three witnesses at trial testified that Nelson’s and Savoie’s gaffs

and slashers seized during the search of the property constituted collectibles or that

their conduct was “incidental to collecting . . . gaffs or slashers.” See TEX. PENAL

CODE ANN. § 42.105(c)(2). We therefore conclude that because no evidence

presented at trial raised this statutory affirmative defense, Nelson and Savoie were

not entitled to an instruction on this defense, and the trial court did not err by failing

to include such an instruction in the jury charge.9 See id. § 2.04(c); Walters, 247

S.W.3d at 208–09.

9 Appellants also argue that the trial court erroneously failed to instruct the jury that it had the right to nullify an unconstitutional law. “Although jury nullification is a recognized part of our judicial system, there is no constitutional requirement that a trial judge instruct the jury on nullification.” Stefanoff v. State, 78 S.W.3d 496, 502 (Tex. App.—Austin 2002, pet. ref’d). Appellants were not entitled to an instruction on jury nullification and, thus, the trial court did not err by failing to give such an instruction. See id. (stating that “while jury nullification may exist as part of our justice system, it is not a legal standard and is not a constitutional right of the defendant”) (quoting Mouton v. State, 923 S.W.2d 219, 222 (Tex. App.—Houston [14th Dist.] 1996, no pet.)). 31 Other Challenges

A. Bill of Attainder

Appellants argue that the State’s prosecution of them after a “false arrest based

on an anonymous California complaint” constitutes a prohibited bill of attainder.

Both the United States and the Texas Constitutions prohibit bills of attainder.

See U.S. CONST. art. I, §§ 9, 10; TEX. CONST. art. I, § 16. These provisions “prohibit

legislatures from singling out disfavored persons and meting out summary

punishment for past conduct.” Landgraf v. USI Film Prods., 511 U.S. 244, 266, 114

S. Ct. 1483, 1497 (1994). A bill of attainder is “a legislative act which inflicts

punishment without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315, 66

S. Ct. 1073, 1078 (1946). To be considered a bill of attainder, a law must (1) specify

the affected person or persons, (2) inflict punishment, and (3) fail to provide for a

judicial trial. Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841,

846–47, 104 S. Ct. 3348, 3352 (1984). Historically, bills of attainder name the

person to be punished, but “the singling out of an individual for legislatively

prescribed punishment constitutes an attainder whether the individual is called by

name or described in terms of conduct which, because it is past conduct, operates

only as a designation of particular persons.” Id. at 847, 104 S. Ct. at 3352.

Here, the State’s prosecution of appellants is not a legislative act. Even if,

however, we construe appellants’ complaints as arguing that Penal Code section

32 42.105 is an impermissible bill of attainder, the law does not specify an affected

person, appellants have not demonstrated that section 42.105 was enacted to punish

past conduct, and appellants received a trial by jury. See id. at 846–47, 104 S. Ct. at

3352. We conclude that Penal Code section 42.105 does not constitute a prohibited

bill of attainder.

B. Misuse of Appellants’ Identities

Appellants suggest that court personnel, the State, and the trial court possibly

created “accounts” using appellants’ identities, signatures, and case numbers. They

argue they “had rights to know about any account being created in [their] name[s],”

including “who was using [their] identit[ies] to create accounts, what the accounts

were for, if they were being used for profit, who was sharing the proceeds without

[their] knowledge, and who was supposed to give [them] a 1099 OID to share the

proceeds with [them].” They further argue that were unaware that, “by showing up

in court, [they] had unwittingly contracted with not one but three or more privately-

held, for-profit corporations, who did not disclose these facts to [them] that they had

a vested interest in getting [them] convicted and obtaining [their] signature[s] on a

piece of paper which they could trade on Wall Street without sharing the proceeds

with [them].” Appellants argue that they were entitled to, but were denied, an

accounting.

33 Appellants have, however, pointed to no evidence that court personnel, the

State, or the trial court created any “accounts” in appellants’ names or did anything

untoward with appellants’ identities. Appellants have cited no authority holding that

they were entitled to an accounting.

C. Representative Jury

Appellants argue that the jury was “stacked with people who were not

[appellants’] peers—young enough to be [their] children, and not farmers.”

Although venire panels must represent a fair cross-section of the community, there

is no requirement that the petit jury actually chosen for a particular case “mirror the

community and reflect the various distinctive groups in the population.” Gray v.

State, 233 S.W.3d 295, 300 (Tex. Crim. App. 2007) (quoting Taylor v. Louisiana,

419 U.S. 522, 538, 95 S. Ct. 692, 702 (1975)). “Defendants are not entitled to a jury

of any particular composition.” Taylor, 419 U.S. at 538, 95 S. Ct. at 702. Appellants

were not entitled to a jury that resembled them in age and occupation. Furthermore,

appellants have raised no argument that the venire itself did not represent a fair cross-

section of the community.

D. Discovery

Appellants argue that the prosecutor and the sheriff of Lampasas County

failed to comply with discovery, pointing to the prosecutor’s and sheriff’s failure to

34 respond to numerous requests for admissions, subpoenas, and requests for

production of documents served by appellants.

Brady v. Maryland “essentially created a federal constitutional right to certain

minimal discovery,” but the United States Supreme Court has held that “[t]here is

no general constitutional right to discovery in a criminal case, and Brady did not

create one.” Pena, 353 S.W.3d at 809 & n.10 (quoting Weatherford v. Bursey, 429

U.S. 545, 559, 97 S. Ct. 837, 846 (1977)). Although the State has a duty under Brady

to disclose “exculpatory and impeachment evidence to the defense that is material

to either guilt or punishment,” a criminal defendant “has no general right to pretrial

discovery of evidence in the State’s possession.” Hall v. State, 283 S.W.3d 137, 163

(Tex. App.—Austin 2009, pet. ref’d).

Limited statutory discovery is available pursuant to Code of Criminal

Procedure article 39.14. Michaelwicz v. State, 186 S.W.3d 601, 612 (Tex. App.—

Austin 2006, pet. ref’d). Article 39.14 provides, in relevant part:

(a) [A]s soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. . . . 35 TEX. CODE CRIM. PROC. ANN. art. 39.14(a) (West Supp. 2018); In re Watkins, 369

S.W.3d 702, 707 (Tex. App.—Dallas 2012, orig. proceeding) (stating that article

39.14 authorizes judge to order State to allow discovery “of tangible objects that are

not privileged and that are in the State’s possession” upon showing of good cause,

materiality, and that item is possessed by State). Article 39.14 does not require the

State to comply with general tools of discovery used in civil cases, such as the

requests for admissions and requests for production of documents that appellants

served here. Appellants have demonstrated no entitlement to this discovery, and we

decline to impose such an obligation on the State.

E. Failure to Deliver Summons

Appellants argue that the record does not contain a complaint that complies

with Code of Criminal Procedure article 2.04, that they never received a summons,

and that they never received a warrant or summons that complies with Federal Rule

of Criminal Procedure 4.10

Code of Criminal Procedure article 2.04 provides that “[u]pon complaint

being made before a district or county attorney that an offense has been committed

in his district or county, he shall reduce the complaint to writing and cause the same

10 To the extent appellants argue that reversible error occurred because they never received a warrant or summons that complies with Federal Rule of Criminal Procedure 4, we note that that rule is inapplicable in state court and that, instead, the Texas Code of Criminal Procedure governs in this case. 36 to be signed and sworn to by the complainant, and it shall be duly attested by said

attorney.” TEX. CODE CRIM. PROC. ANN. art. 2.04 (West 2005); see also id. art. 15.04

(West 2015) (“The affidavit made before the magistrate or district or county attorney

is called a ‘complaint’ if it charges the commission of an offense.”). The appellate

record in this case includes copies of the complaints made against all three

appellants: complaints made by Investigator Barnes and sworn to before John

Greenwood, the Lampasas County Attorney, for appellants Nelson and Savoie, and

a complaint made by Investigator Seery and sworn to before Judge Andrew Garcia,

the Justice of the Peace for Precinct One in Lampasas County, for appellant Bane.

Appellants have raised no argument on appeal concerning the form of the

complaints.

Appellants argue that, after the filing of the complaints, the county clerk was

required to issue a summons, which they never received. Code of Criminal

Procedure article 15.03(a) provides:

A magistrate may issue a warrant of arrest or a summons:

1. In any case in which he is by law authorized to order verbally the arrest of an offender; 2. When any person shall make oath before the magistrate that another has committed some offense against the laws of the State; and 3. In any case named in this Code where he is specially authorized to issue warrants of arrest.

37 TEX. CODE CRIM. PROC. ANN. art. 15.03(a) (West 2015). A magistrate may issue a

summons “in any case where a[n arrest] warrant may be issued,” and the summons

“shall be in the same form as the warrant except that it shall summon the defendant

to appear before a magistrate at a stated time and place.” Id. art. 15.03(b); see also

id. art. 15.02 (West 2015) (providing that arrest warrant is sufficient if it provides

necessary substantial information of name of accused, alleged offense, and signature

of issuing magistrate); Gallegos v. State, 971 S.W.2d 626, 628 (Tex. App.—San

Antonio 1998, pet. ref’d) (stating that “[a] summons will, in most cases, serve the

same purpose as a capias or arrest warrant, while sparing the defendant

embarrassment and saving the State time, effort, and expense” and noting that

purpose of capias or arrest warrant “is to secure the presence of a defendant at a

proceeding against him”).

In this case, however, appellants contend that, although the police had a

“general warrant” to enter the property, they were individually arrested without a

warrant. An arrest by a peace officer without a warrant is permissible in certain

limited circumstances, including situations in which a person commits an offense in

a peace officer’s presence or within his view. See TEX. CODE CRIM. PROC. ANN. art.

14.01(b) (West 2015). Here, appellants committed the charged offenses within the

presence of peace officers, and they were arrested without an arrest warrant. Under

38 these circumstances, a summons was not necessary, and the lack of a summons in

this case does not constitute reversible error. See id.

F. Conflict of Interest

Appellants argue that a conflict of interest exists because the trial court, the

prosecutor, and the police witnesses all worked for the State of Texas, yet the State

is the alleged victim in these cases. Appellants also argue that a conflict of interest

exists because both the trial court and the prosecutor are members of the State Bar

of Texas.

The parties have a right to a fair trial, and “[o]ne of the most fundamental

components of a fair trial is a neutral and detached judge.” Dockstader v. State, 233

S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d); Guin v. State,

209 S.W.3d 682, 685 (Tex. App.—Texarkana 2006, no pet.) (“Due process demands

an impartial adjudicator to make a ruling based on admissible evidence in a forum

with the opportunity to cross-examine and present evidence as allowed.”). A trial

judge “should not act as an advocate or adversary for any party.” Dockstader, 233

S.W.3d at 108. Due process requires “a fair trial in a fair tribunal before a judge with

no actual bias against the defendant or interest in the outcome of his particular case.”

Celis v. State, 354 S.W.3d 7, 21 (Tex. App.—Corpus Christi 2011), aff’d, 416

S.W.3d 419 (Tex. Crim. App. 2013). A trial judge is constitutionally unacceptable

when: (1) the judge has a direct personal, substantial, and pecuniary interest in the

39 outcome of the case; (2) the judge has been the target of personal abuse or criticism

from the party before him; or (3) the judge has the dual role of investigating and

adjudicating disputes and complaints. Id.

Appellants have pointed to no instance in the record indicating that the trial

court failed to act as a “neutral and detached judge” or an “impartial adjudicator” or

that the trial court acted “as an advocate or adversary for any party.” See Dockstader,

233 S.W.3d at 108; Guin, 209 S.W.3d at 685. Appellants have also pointed to no

evidence indicating that the trial court had “a direct personal, substantial, and

pecuniary interest” in the outcome of their case, that the court had “been the target

of personal abuse or criticism” from the parties before him, or that the court had “the

dual role of investigating and adjudicating disputes and complaints.” See Celis, 354

S.W.3d at 21. We conclude that appellants have not demonstrated a conflict of

interest that violated their due process rights.

G. Allowing Appellants to Speak During Trial

Appellants also argue that the trial court violated their First Amendment rights

and prevented them from telling their “side” to the jury by refusing to let them speak

during opening statements and closing arguments, by overruling their objections, by

40 refusing to allow them to cross-examine Investigator Seery, and by refusing to allow

Perry to testify.11

The record demonstrates, however, that the appellants were given the

opportunity to make opening statements and closing arguments. Although the trial

court sustained many of the State’s objections throughout the trial, the appellants

made objections and, on a few occasions, the State reworded its questions or asked

additional questions to address the appellants’ concerns. Appellants were also given

the opportunity to, and did, cross-examine all of the State’s witnesses. Although the

trial court did not allow Perry to testify, we have already determined that this

decision was not erroneous.

H. Newly Discovered Evidence

Finally, appellants argue that they are entitled to a new trial “in an Article III

court of competent jurisdiction” and not a “local court,” because “newly-discovered

evidence has revealed that local state courts are for profit companies” with ties to

“private prisons for profit, who work with judges to incarcerate the innocent and

incarcerate juveniles to fill beds.” They also argue that they have “discovered that

some Texas courts are participants in Court Registration Investment System or

11 Appellants also argue that the trial court denied them their right to represent themselves. The appellate record, however, contains a copy of the court’s docket sheet, which indicates that the trial court approved appellants’ requests to represent themselves, and appellants did in fact represent themselves at trial and continue to do so on appeal. 41 CRIS, which securitizes, monetizes, and trades cases on Wall Street.” As support for

these arguments, appellants refer us to links to various YouTube videos and CRIS

reports contained in the appendices to their briefs.

Code of Criminal Procedure article 40.001 provides that “[a] new trial shall

be granted an accused where material evidence favorable to the accused has been

discovered since trial.” TEX. CODE CRIM. PROC. ANN. art. 40.001 (West 2018). For

a defendant to be entitled to a new trial on the basis of newly discovered evidence,

the defendant must demonstrate:

(1) the newly discovered evidence was unknown or unavailable to the defendant at the time of trial; (2) the defendant’s failure to discover or obtain the new evidence was not due to the defendant’s lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial.

Carsner v. State, 444 S.W.3d 1, 2–3 (Tex. Crim. App. 2014). In order to preserve

for appellate review a complaint that he is entitled to a new trial based on newly

discovered evidence, the defendant must raise this complaint in a motion for new

trial or at a hearing on a motion for new trial. See Pitman v. State, 372 S.W.3d 261,

264 n.2 (Tex. App.—Fort Worth 2012, pet. ref’d); see also Spiers v. State, 543

S.W.3d 890, 900 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (“Appellant

42 was required to preserve error regarding his complaint about newly discovered

evidence.”).

Appellants did not move for a new trial in this case. Instead, they raise their

argument concerning newly discovered evidence for the first time on appeal. We

conclude that because appellants did not raise this complaint in a motion for new

trial before the trial court, they have failed to preserve this complaint for appellate

review. See TEX. R. APP. P. 33.1(a) (providing that, to preserve complaint for

appellate review, complaining party must make complaint to trial court by timely

request, objection, or motion that states grounds for ruling sought with sufficient

specificity to make trial court aware of complaint); Spiers, 543 S.W.3d at 900;

Pitman, 372 S.W.3d at 264 n.2.

Conclusion

We affirm the judgments of the trial court.

Evelyn V. Keyes Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).