Tommy Earl Landrum Jr. v. State ( 2009 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-08-00063-CR
Mark Alexander Butcher, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 07-1132-K77, HONORABLE KEN ANDERSON, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Mark Alexander Butcher of the offense of arson. See
Tex. Penal Code Ann. § 28.02(a) (West Supp. 2008). He was sentenced to sixty years in prison.
Butcher contends that the district court erred in refusing to consider the merits of his timely filed
motion to quash and in overruling his objections to the prosecutor’s use of certain exhibits in the
punishment phase of the trial. We affirm the district court’s judgment.
Butcher had been in a dating relationship with the complainant for about six months
and often stayed overnight at the complainant’s apartment. On July 27, 2007, after the complainant
called from work to end her relationship with Butcher, Butcher started a fire in the complainant’s
apartment with a starter log doused in lighter fluid. He placed the burning log on the couch, pushed
the couch in front of the door to prevent police from entering the apartment, and attempted to escape
by jumping from the apartment balcony. After a short chase, he was apprehended and arrested.
On August 22, 2007, Butcher was indicted for arson. On October 25, 2007, Butcher
was notified that trial had been set to begin on January 14, 2008, and that pretrial motions would
be heard on December 5, 2007. At the December 5 pretrial hearing, Butcher presented a motion in
limine, a motion for discovery of state witnesses, an election for jury punishment, and a request for
court reporter. Defense counsel indicated that he had no other pretrial motions. On
January 10, 2008, Butcher filed a motion to quash the indictment. The district court addressed the
motion on the day trial commenced, January 14, 2008, but declined to address the merits. The
district court ruled that the motion was untimely and explained that local practice required “motions
to quash . . . to be filed prior to the pretrial hearing and . . . to be heard at the pretrial hearing.”
In his first point of error, Butcher argues that the district court erred in refusing to
consider the merits of his motion to quash the indictment. According to Butcher, a trial court cannot
shorten the statutorily prescribed time frame except by written order. The State disputes Butcher’s
contention as to timeliness and further argues that, in any case, Butcher was not harmed by any
alleged defect in the indictment.
We conduct a de novo review of the trial court’s decision to overrule Butcher’s
motion to quash. See Moff v. State, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (de novo review
appropriate where trial court’s decision was based only on indictment, motion to quash, and
argument of counsel); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)
(de novo review may be appropriate where “resolution do[es] not turn on an evaluation of credibility
and demeanor”). A motion to quash objections to a defect in an indictment is timely filed if it is filed
“before the date on which the trial on the merits commences.” Tex. Code Crim. Proc. Ann.
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art. 1.14(b) (West 2005). The mere filing of a motion to quash is insufficient to bring it to the
trial court’s attention. Holden v. State, No. 02-03-00454-CR, 2004 Tex. App. LEXIS 9875, at *2
(Tex. App.—Fort Worth Nov. 4, 2004, pet. ref’d) (mem. op., not designated for publication) (citing
Mills v. State, 941 S.W.2d 204, 208 (Tex. App.—Corpus Christi 1996, pet. ref’d), and Chunn
v. State, 821 S.W.2d 718, 720 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d), cert. denied,
506 U.S. 870 (1992)); see Guevara v. State, 985 S.W.2d 590, 592 (Tex. App.—Houston [14th Dist.]
1999, pet. ref’d) (“[P]resentment means more than mere filing. The movant must make the
trial judge aware of the motion by calling the judge’s attention to it in open court and requesting
a ruling thereon.” (Citation omitted.)). Here, Butcher’s motion to quash was presented to the
trial court on the day trial on the merits began, not “before the date on which trial on the merits
commence[d],” as required by statute. See Tex. Code Crim. Proc. Ann. art. 1.14(b).
In support of his position, Butcher relies on Saatoff v. State, 908 S.W.2d 523
(Tex. App.—San Antonio 1995, no pet.). According to Butcher, as in Saatoff, here “[t]here is
no order in this case, either in writing or stated orally, which instructed or ordered defense counsel
to file[] all motions prior to a specific date.” Saatoff offers little support for Butcher’s position. In
Saatoff, the court of appeals addressed the issue of timeliness only in response to the State’s
contention that error had not been preserved for appellate review. 908 S.W.2d at 525. The
trial court had apparently overruled Saatoff’s motion to quash on grounds of sufficiency, not
timeliness. Moreover, to the extent that Saatoff offers some guidance for determining when a motion
to quash is timely filed, it is distinguishable. In Saatoff, the motion to quash was both filed and
presented to the court at hearing the day before the trial on the merits began. Id. Here, Butcher did
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not present his motion to quash to the court until the day trial began. By failing to file his motion
to quash objecting to the indictment before trial on the merits began, Butcher failed to meet the
statutory deadline. See Tex. Code Crim. Proc. Ann. art. 1.14(b).
Even if Butcher had timely filed his motion to quash, the indictment was sufficient.
An indictment is generally sufficient to satisfy constitutional notice requirements if it tracks the
language of a penal statute that itself satisfies the constitutional requirement of notice. State v. Mays,
967 S.W.2d 404, 406 (Tex. Crim. App. 1998). Here, the indictment alleged the following:
[O]n or about the 27th day of July, 2007, in Williamson County, Texas,
Mark Alexander Butcher, hereinafter “defendant,” started a fire by igniting a
flammable substance, regardless of whether the fire continues after ignition, with
intent to destroy or damage a habitation, knowing it was within the limits of an
incorporated city or town, or knowing it was located on property belonging to
another, or knowing that it has located within it property belonging to another, or was
reckless about whether the burning would endanger the life of some individual or the
safety of the property of another.
The elements set out in the indictment track those set out in section 28.02(a) of the penal code:
A person commits an offense if the person starts a fire, regardless of whether the fire
continues after ignition, or causes an explosion with intent to destroy or damage:
(1) any vegetation, fence, or structure on open-space land; or
(2) any building, habitation, or vehicle:
(A) knowing that it is within the limits of an incorporated city or town;
(B) knowing that it is insured against damage or destruction;
(C) knowing that it is subject to a mortgage or other security interest;
(D) knowing that it is located on property belonging to another;
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(E) knowing that it has located within it property belonging to another;
or
(F) when the person is reckless about whether the burning or explosion
will endanger the life of some individual or the safety of the property
of another.
Tex. Penal Code Ann. § 28.02(a). The indictment includes each element of arson as set out
in section 28.02(a). See id. Butcher identifies no element of arson that was omitted from the
indictment, and we find none. See Mays, 967 S.W.2d at 406. Rather, Butcher argues that the
indictment is insufficient because it fails to identify the type of habitation, the name of the city or
town, the address of the habitation, the owner of the habitation, whose life was endangered, and
whose property was endangered. Texas law, however, imposes no requirement that an indictment
include the specific information requested. See id. All that is required is that the language of
indictment track the language of the statute. Id. Here, it did. We, therefore, overrule Butcher’s
first point of error.
In his second point of error, Butcher argues that the trial court erred when it overruled
his objections to the prosecutor’s use of certain exhibits in the punishment phase of the trial.
According to Butcher, the prosecutor’s presentation of two exhibits amounted to testimony and
was, therefore, improper.
The manner and means of the presentation of documentary evidence, after
admission, is left to the sound discretion of the trial court. Wheatfall v. State, 882 S.W.2d 829, 838
(Tex. Crim. App. 1994). We review the trial court’s decision to allow the presentation for abuse of
discretion. Id.
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Butcher complains of the prosecutor’s presentation of two exhibits during the
punishment phase of trial: Exhibit 53, a penitentiary packet, and Exhibit 56, a judgment. Both
were admitted through the testimony of Kerie Cress, a crime scene investigator for the Round Rock
Police Department, who testified that the fingerprints on the documents matched the fingerprints
she took from Butcher in court.
Once admitted into evidence, counsel or a witness is permitted to read the document
aloud to the jury. Id.
Common practice in state and federal courts appear[s] to be that when a document
is admitted into evidence, counsel or a witness can read the document aloud to the
jury. The rules of evidence and authors of treatises presume this to be the case. This
logically follows from the procedure of a case. Exhibits are marked, identified, and
authenticated. The jury, hearing constant references to the document, endures the
legal procedure so that they may assimilate the evidence. Upon admission by the
trial court, the jury is permitted to access the evidence in some manner. Access to
the evidence at the time of its admission permits the parties to build their cases
during trial.
Id. at 837-38. Counsel is permitted “endless variations on methods of presentation,” and “in the
presentation of this evidence to the jury, counsel or a witness may use extra verbiage to ease
the transition of the recitation of a document to verbal communication.” Id. at 838, n.9. Counsel
oversteps his role as prosecutor and assumes the role of witness only where he “transform[s]
the statements from a recitation of the admitted document to argument.” See id. n.10. Thus, to
determine whether the district court abused its discretion in allowing the prosecutor’s presentation
of documentary evidence, we review the record to determine whether the State presented information
beyond that which was actually in the documents.
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The specific statement to which defense counsel objected was the prosecutor’s
statement that “[t]hese two documents, 53 and 56, are what are called . . .” Defense counsel
objected, arguing that “[h]e’s testifying.”1 The district court overruled the objection, stating that it
would allow the prosecutor to present the document to the jury “any way he sees fit, including the
way he’s doing it.” After the objection had been overruled, the prosecutor continued:
These are what are called pen packets. On State’s Exhibit No. 53, the front of the
pen packet contains an affidavit from the prison agency verifying that it is a true and
accurate copy of the documents that are from prison. The second page contains a
booking photograph of the defendant who matches this pen packet and goes with
the judgments that are contained within it. The third page shows the initial judgment
for which he was imprisoned in this particular case. The top of it contains the
cause number, which reads 8035, the defendant’s name, Mark Alexander Butcher,
and the court, which was in Jones County, Texas. In addition, it will tell you the
judge, the prosecutor, the attorney for the defendant.
Although the prosecutor referred to Exhibit 53 as a “pen packet,” he did not explain what a
pen packet is. He merely pointed out the contents of the documents contained in the packet. Rather
than reading the documents in their entirety, the prosecutor noted the items on the documents that
would be relevant to determining punishment. Nothing in the prosecutor’s statement, however,
conveys information beyond that actually included in the document.
1
Although defense counsel only made this single objection at trial, on appeal Butcher
reproduces seven pages of argument about which he complains. The State argues that Butcher failed
to preserve argument for appellate review by failing to make timely, specific objections stating
the particular legal grounds and the ruling sought from the trial court. See Tex. R. App. P. 33.1(a).
Because defense counsel objected to only one statement in particular, we address only that statement
specifically. Without deciding the issue of waiver, we note that our analysis applies to the entirety
of the prosecutor’s argument set out by Butcher in his brief.
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The district court acted within its discretion in permitting the prosecutor to read
portions of the documents to the jury. See id. at 838. Accordingly, we overrule Butcher’s second
point of error.
Butcher’s points of error are overruled, and the judgment of conviction is affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Waldrop and Henson
Affirmed
Filed: April 14, 2009
Do Not Publish
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