Albert J. Simmons v. State ( 1996 )

Simmons v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-95-301-CR

        ALBERT J. SIMMONS,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # 28803

                                                                                                    

O P I N I O N

                                                                                                    

          Appellant, Albert James Simmons, pled guilty to the felony offense of possession of a controlled substance, Tex. Health & Safety Code Ann. § 481.115(a) (Vernon Supp. 1996), and was placed on two years' deferred adjudication. After the State filed a motion to revoke Simmons' probation based on probation violations, the trial court held a revocation hearing and sentenced Simmons to twelve years' incarceration for his original offense. Simmons raises one point of error on appeal: the trial court erred in proceeding to adjudication of his conviction because it lacked jurisdiction. However, because Simmons failed to preserve his complaint, we overrule it and affirm the trial court's judgment.

          Simmons contends that the trial court's failure to adjudicate his guilt on the original charge of possession of a controlled substance prior to the expiration of his probationary period deprived the trial court of its jurisdiction over him. Simmons relies on Article 42.12, Section 5(c), of the Code of Criminal Procedure for this contention. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(c) (Vernon Supp. 1996). In pertinent part, the section reads: "On expiration of a community supervision period . . . , if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him." Id. In Prior v. State, the Court of Criminal Appeals set forth the requirements of this section. 795 S.W.2d 179, 184 (Tex. Crim. App. 1990). The Court held specifically that "a trial court has jurisdiction to revoke deferred adjudication probation . . . after the probationary term has expired, as long as both a motion alleging a violation of probationary terms is filed and a capias or arrest warrant is issued prior to the expiration of the term, followed by due diligence to apprehend the probationer and to hear and determine the allegations in the motion." Id. Simmons' probationary period expired on March 18, 1995. On March 10, 1995, eight days before Simmons' probationary term expired, the State filed a motion alleging Simmons had violated his probation and a capias was issued for his arrest.

          Simmons' argument, however, focuses on the due diligence requirement imposed by Prior. Id. Simmons maintains that because the trial court did not adjudicate his guilt until September 28, 1995, over six months after his probationary term expired, the State failed to satisfy the due diligence requirement, resulting in the trial court's loss of jurisdiction over him. This Court has held that lack of due diligence is not a jurisdictional issue. Burch v. State, 821 S.W.2d 385, 386-87 (Tex. App.—Waco 1991, no pet.). Therefore, because a motion to revoke Simmons' probation had been filed and a capias issued for his arrest before the expiration of his probationary period, the trial court had proper jurisdiction over Simmons' revocation hearing.

          Lack of jurisdiction is considered a fundamental error which does not require preservation for appeal. Stine v. State, 908 S.W.2d 429, 431 (Tex. Crim. App. 1995) (holding that lack of jurisdiction is a fundamental error that is appealable at any time even if it is raised for the first time on appeal). However, because we have determined that Simmons' complaint is not grounded in a jurisdictional basis and was thus not a fundamental error, he was required to properly preserve his complaint about due diligence at the trial level. Tex. R. App. P. 52(a).

          Prior holds that a probationer, who fails to specifically raise the issue of lack of due diligence by the State before or during his revocation hearing, waives his right to such complaint because it cannot be raised for the first time on appeal. Prior, 795 S.W.2d at 185. In Prior, the appellant sought to complain of the lack of due diligence in the State's apprehension of him after the arrest warrant had been issued. Id. at 184-85. In the present case, Simmons seeks to complain of the State's lack of due diligence in holding the revocation hearing after his arrest. The requirement of preserving a complaint of lack of due diligence is the same in both instances. At his revocation hearing, Simmons' only complaint was to the trial court's lack of jurisdiction to revoke his probation and adjudicate his guilt on the original charge. No specific complaint as to the State's lack of due diligence was made. Because the court had jurisdiction and Simmons did not properly preserve his complaint, we overrule his point of error. Chambers v. State, 903 S.W.2d 21, 32 (Tex. Crim. App. 1995); Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994), cert. denied, — U.S. —, 115 S. Ct. 1115 (1995); Fuller v. State, 827 S.W.2d 919, 920 (Tex. Crim. App. 1992) (complaint raised on appeal must comport with the objection made at trial).

           The judgment is affirmed.

             

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Justice Cummings,

          Justice Vance, and

          Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 11, 1996

Do not publish

rst issue, he contends that the evidence that he possessed a firearm was legally insufficient.  We will overrule Appellant’s issue.

      Appellant points to evidence that he was not found at the scene of the offense; and was not in possession of a firearm at the time of his arrest.  The offense took place in Mexia, Texas, on April 27, 2002, after which a warrant for Appellant’s arrest was issued; Appellant was arrested on the warrant on March 6.[1]  The victim testified that Appellant pulled a pistol out of his pants and beat him with it.  Photographs and medical records showed the victim’s injuries, including fractures to the bones of his face.  The radiologist and emergency room doctor who treated the victim testified that his injuries were “consistent with blows from a blunt object.”  Testimony of the investigating officer corroborated this other evidence.  Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Appellant possessed a firearm. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Martinez v. State, 129 S.W.3d 101, 105 (Tex. Crim. App. 2004).  We overrule Appellant’s first issue.

2.    Factual Sufficiency of the Evidence.  In Appellant’s second issue, he contends that the evidence that he possessed a firearm was factually insufficient.  We will overrule Appellant’s issue.

      Appellant points to the following evidence that, he argues, is contrary to the verdict:[2]

·       When the Mexia police officer responded to the initial call, to the bar where Appellant assaulted the victim, neither Appellant nor the victim was still there.

·       When the officer returned to the bar for follow-up investigation, he did not speak to anyone who could “confirm or deny” the victim’s complaint; he did not speak to anyone.

·       A warrant was issued for Appellant’s arrest, and he was later arrested.

·       The officer was not acquainted with Appellant.

·       The “medical evidence alone” did not allow the victim’s doctors to determine the instrument that caused his injuries any more specifically than to say that it was a “blunt object.”

The evidence supporting the verdict is stated above.  Considering the evidence in a neutral light, and giving due deference to the jury’s credibility determinations, the jury was rationally justified in finding beyond a reasonable doubt that Appellant possessed a firearm.  See Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004); Martinez, 129 S.W.3d at 106.  We overrule Appellant’s second issue.

3.    Discovery.  In Appellant’s third issue, he contends he was denied due process in that the State did not produce the pistol, which law enforcement officers never found, for examination by an expert.  Appellant does not point to any place in the record where his complaint is preserved, and thus forfeits the complaint.  See Tex. R. App. P. 33.1(a); Garza v. State, 126 S.W.3d 79, 81-82 (Tex. Crim. App. 2004); Simpson v. State, 119 S.W.3d 262, 267 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2837 (2004); cf. Cooks v. State, 844 S.W.2d 697, 737 (Tex. Crim. App. 1992) (“where the existence of” evidence “is unknown, the court cannot compel production thereof”).  We overrule Appellant’s third issue.

4.    Effective Assistance of Counsel.  In Appellant’s fourth issue, he contends that his trial counsel failed to render the effective assistance of counsel.  We will overrule Appellant’s issue. 

      Appellant’s primary complaint is that counsel did not object to evidence of a prior felony conviction, and did not object to references to that conviction throughout trial.  A prior felony conviction is an element of the offense of possession of a firearm by a felon.  See Tex. Penal Code Ann. § 46.04(a).  Evidence thereof was thus admissible, and references thereto were proper.  See Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2022 (2004). Not objecting to admissible evidence does not constitute ineffective assistance.  McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992); Bell v. State, 867 S.W.2d 958, 962 (Tex. App.—Waco 1994, no pet.); see Jackson v. State, 33 S.W.3d 828, 841 (Tex. Crim. App. 2000).  Appellant also contends that counsel did not object to references to an extraneous offense in the “penitentiary packet” that the State offered to prove the prior conviction.  See Tex. Code Crim. Proc. Ann. art. 42.09, § 8(b) (Vernon Supp. 2004). We do not perceive that two obscure references to dates in the penitentiary packet refer to a later conviction.  Appellant also complains that counsel did not object to the admission, during the punishment phase, of the judgment of Appellant’s conviction for aggravated robbery. The judgment recites, in error, that Appellant “is guilty of the offense of AGGRAVATED ASSAULT.”  We do not perceive that counsel’s not objecting on that basis was professionally unreasonable, or that Appellant suffered any prejudice thereby.  See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Strickland v. Washington, 466 U.S. 668, 694 (1984); Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2098 (2004). We overrule Appellant’s fourth issue.

      Having overruled Appellant’s issues, we affirm the judgment.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance concurring)

Opinion delivered and filed September 15, 2004

Affirmed

Do not publish

[CR25]

---

[1]       In Appellant’s brief, he states that the arrest warrant was executed in Austin.  Appellant does not point to evidence of this in the record.

[2]       Appellant also points to evidence from the punishment phase of trial, which we do not consider in evaluating the sufficiency of the evidence of his guilt.