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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00098-CR ______________________________
EDDIE CHARLES REED, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 04F0318-202
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Eddie Charles Reed was convicted of indecency with a child as an habitual offender and sentenced to life imprisonment. He appeals from that conviction and sentence.
Under the testimony given, Reed had been living with his girlfriend, Brenda Zachary, for about three and one-half years.
Zachary testified that she entered a bedroom of the house where Reed and Zachary's six-year-old granddaughter were located and discovered the granddaughter standing about three feet in front of Reed. Reed's pants were unzipped; he was holding his penis (in a state of erection) in his hand. Zachary testified that Reed was instructing the granddaughter to come closer to him and perform fellatio on him. The jury found Reed guilty.
At the punishment phase, evidence was introduced of Reed's two prior felony convictions and the jury responded by assessing life imprisonment.
Reed raises three points of error:
(1) he complains that the court failed to allow him to impeach the testimony of Zachary regarding the chronology of certain events by the use of her statement to the police;
(2) he takes the position that it was error for the trial court to refuse to allow him to testify that Reed had mistakenly previously entered a plea of guilty to a prior felony, believing he was pleading, instead, to a state-jail felony; and
(3) he alleges that the evidence was factually insufficient to sustain his conviction.
ABILITY TO IMPEACH USING PRIOR INCONSISTENT STATEMENTS
As to the first issue, Reed believed that the point in time at which he began to weep and threaten suicide was vitally important. Initially, Zachary testified that Reed exhibited this conduct upon having been confronted with his conduct with Zachary's granddaughter. Reed tried first to question her about her prior statement to police that Reed had cried and made his threat of suicide after she had told him that she was throwing him out of her house (as opposed to when he was discovered with his hardened penis in his hand). Reed explained that he believed it vitally important to demonstrate that he was not evidencing distress because of remorse over his actions with the child but, rather, because his relationship with Zachary was coming to an end. It is not necessary to engage in an analysis of whether the initial ruling of the court was correct in determining that cross-examination of Zachary was proper or not because--after an extended discussion regarding the issue outside the presence of the jury--Zachary changed her testimony to reflect that Reed began to weep and threaten suicide only after Zachary had told him to clear his things out of her house. After the change in her rendition of the sequence of events, Reed's counsel, apparently satisfied, indicated his satisfaction by stating, "Okay. We've clarified that issue." Therefore, if there was any error in the initial ruling, it was cured by the fact that Reed was allowed to question Zachary again and, this time, the chronology of the actions as stated in her trial testimony completely coincided with the time frames set out in the police statement. Accordingly, if error existed, the error was cured.
EVIDENCE OF MISTAKE IN PREVIOUS GUILTY PLEA TO FELONY
Reed testified that, although he acknowledged that he had been convicted of the felony offense of burglary of a habitation in 1979, he also took the position that he had intended to enter a plea in 1997 (actually 1998) to a state-jail felony offense, not to the second-degree felony of which he was actually convicted. Immediately after Reed announced that it was his desire to provide testimony as to his intentions in 1998, the State was granted an oral motion in limine which barred Reed from making reference to the 1998 conviction as a state-jail offense, rather than a second-degree felony. (1)
Reed relies on Parr v. State, 557 S.W.2d 99 (Tex. Crim. App. 1977), for the proposition that a defendant has the ability to explain the details of the prior convictions. However, Parr has no application to the facts of this case. In Parr, the defendant took the stand and admitted to two prior convictions for the possession of illicit drugs; on cross-examination, the State went much farther than it should have gone. During questioning which would ordinarily be characterized as badgering, the State pushed its point too far, asking the defendant, "Oh, you weren't [guilty]? Why did you plead guilty then?" Id. at 101. When, on redirect, Parr's attorney attempted to expand on the answer to this question, the State objected, saying, "Why he pled guilty is of no concern to this jury. The record speaks for itself, we have had hearings on this." Id. The court sustained the objection, barring any further inquiry into the issue. Id. The court observed that once the State had opened the inquiry into why Parr had pled guilty, Parr was then entitled to further explore the issue; in other words, the actions of the State had permitted a line of inquiry which would have otherwise not been allowed.
In this case, however, the State opened no door to allow Reed to enter into that area of inquiry. Rather, it simply introduced evidence of the fact of the convictions and used a fingerprint expert to tie those convictions to Reed. It is plain that Reed was unilaterally attempting to revisit one of his prior convictions and show that it was not truly what the record showed that it was. In other words, when Reed was attempting to testify that, under the evidence which existed that he really should not have been convicted of the crime of burglary of a habitation, he was attempting a collateral attack on a final judgment. Although a prior conviction that was alleged in a later offense may be collaterally attacked if it is void or if it is tainted by a constitutional defect, it may not be attacked for an alleged insufficiency of the evidence or irregularities in the judgment or sentence. Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. [Panel Op.] 1979); In re Altschul, 207 S.W.3d 427 (Tex. App.--Waco 2006, pet. filed). Reed was attempting to testify about the facts upon which his conviction was based and the conclusions which he drew from those facts as to his culpability in the crimes with which he was charged. These do not rise to the height of a void conviction or one which is tainted by a constitutional defect.
Further, the subjective evidence of what was in Reed's mind regarding the gravity of the offense to which he had pleaded guilty is not relevant to the fact at hand. The fact is that there was evidence of two felony convictions. Recitations, such as formal judgments, are binding in the absence of direct proof of their falsity. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g); Rogers v. State, 792 S.W.2d 841, 844 (Tex. App.--Houston [1st Dist.] 1990, no pet.); see Battle v. State, 989 S.W.2d 840 (Tex. App.--Texarkana 1999, no pet.). That was sufficient to meet the burden of the enhancement required in Section 12.42 of the Texas Penal Code. See Tex. Penal Code Ann. § 12.42 (Vernon Supp. 2006).
Reed's contention of error is without merit.
CLAIM OF FACTUAL INSUFFICIENCY
In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the fact-finder's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); see also Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). It is the fact-finder's role to judge the credibility of the witnesses and the weight to be given their testimony, and the fact-finder "may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit." Banks v. State, 510 S.W.2d 592, 595 (Tex. Crim. App. 1974); see also Scott v. State, 814 S.W.2d 517, 518-19 (Tex. App.--Houston [14th Dist.] 1991, pet. ref'd). When evidence both supports and conflicts with the verdict, we must assume that the fact-finder resolved the conflict in favor of the verdict. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) ("our factual-sufficiency jurisprudence still requires an appellate court to afford 'due deference' to the jury's determinations"). The appellate court's role is not to "find" facts; rather, it is to determine whether the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust. Ballard v. State, 161 S.W.3d 269, 277 (Tex. App.--Texarkana 2005), aff'd, 193 S.W.3d 916 (Tex. Crim. App. 2006) (Cochran, J., concurring) ("[T]rial court, acting as finder of fact in the face of conflicting evidence, was authorized to believe or disbelieve any portion of the evidence.").
In this case, at the guilt/innocence stage of the trial, there was evidence that Reed was discovered by Zachary displaying his erect penis to his girlfriend's granddaughter and had asked her to take his penis in her mouth. Clara Howard provided unobjected-to testimony that the child told her that Reed had displayed his penis to the child and requested that "she suck on it." During the ensuing minutes, Reed had begun to cry and had taken a knife, threatening suicide. Zachary's granddaughter testified that Reed had entered the room in which she was located (on a bed, watching television), pulled down his pants, and, while close to her, began rubbing his penis.
Reed countered that he entered the house and announced that he was going to change clothes; that he went into the bathroom and when he exited the bathroom (with his penis outside his pants) that he turned the corner and ran into Zachary's granddaughter, who was standing there. At that moment, Zachary entered the room and made the wrong assumptions from the scene. He testified that he had become upset, cried, and threatened suicide because Zachary had told him to gather his things and leave her house--not because he was feeling any guilt or remorse over having supposedly been caught displaying his penis to Zachary's granddaughter.
The jury had the option of believing either the rendition of the occurrences from Zachary, her granddaughter, and Howard or it could believe Reed's version; it could not believe both. It chose to disbelieve Reed. There was ample evidence to sustain a conviction beyond a reasonable doubt. At the punishment phase, Reed admitted to one of the enhancement felonies and disputed the other. The State presented penitentiary packets to evidence the prior convictions and the testimony of a fingerprint expert to link those convictions to Reed. The State met its burden of proof on the punishment phase.
The point of error concerning factual insufficiency is overruled.
We affirm the judgment.
Bailey C. Moseley
Justice
Date Submitted: April 5, 2007
Date Decided: April 25, 2007
Do Not Publish
1. Reed's attempt to insulate himself from the consequences of past actions was revealed elsewhere in the trial. He had previously attempted to testify that in 1981, his revocation of probation for the previous felony had come about as a result of false testimony regarding a charge of indecency with a child. Also during the guilt/innocence phase, he had testified that "[T]hat really shouldn't have been burglary of a habitation anyway . . . . It should have been hauling stolen property instead of burglary, but it turned into burglary of habitation, which it shouldn't have been burglary of a habitation."
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00222-CR
______________________________
ALFRED MORELAND RODGERS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 23615
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Alfred Moreland Rodgers, Jr., appeals his conviction for possession of less than one gram of methamphetamine in a drug-free zone, and sentence of seven years imprisonment. His sole point of error on appeal complains that his open plea of guilty was involuntary because the trial court allegedly failed to accurately admonish him with regard to the applicable punishment range.[1] We affirm the trial courts judgment because this issue has not been preserved for our review.
Simultaneously with his open plea of guilty to the charge mentioned above, Rodgers also entered an open plea of guilty for possession of less than one gram of methamphetamine in a drug-free zone and for possession of methamphetamine in an amount of four grams or more but less than 200 grams. (This second matter is the subject of another appeal, being cause number 06-10-00223-CR on the docket of this Court.) The trial court announced the punishment for both of these crimes and ordered that he serve both sentences concurrently.
Rodgers does not complain that he was unaware of the maximum and minimum years of imprisonment at the time of his guilty plea to both of these charges. In fact, he acknowledges that he understood the range of punishment, pursuant to the accurate written plea admonishments.
Rather, the complaint regards the pronouncement (and the written judgment) that the sentences for these two convictions be served concurrently, rather than consecutively. Rodgers points to Section 481.134(h) of the Texas Health and Safety Code, which provides that the sentence for possession of drugs within a drug-free zone may not run concurrently with punishment for a conviction under any other criminal statute. Thus, Rodgers claims that the trial court was required to admonish him that the two charges can not [sic] be run concurrently and must therefore be served consecutively.[2] At the same time, Rodgers complains that Section 481.134 is in derogation of the generally recognized provision of Texas Penal Code §3.03 wherein multiple offenses of the same criminal episode prosecuted in a single criminal action are required to run concurrently. In other words, Rodgers complains that the sentences should run concurrently, even though they already run concurrently.
In any event, [a]s a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . . Tex. R. App. P. 33.1(a)(1). We have previously held that challenges to the voluntariness of a plea must be raised before the trial court to preserve the complaint for review on appeal. Sims v. State, 326 S.W.3d 707, 713 (Tex. App.Texarkana 2010, pet. struck) (citing Mendez v. State, 138 S.W.3d 334, 339 (Tex. Crim. App. 2004)). While Rodgers filed a motion for new trial, he failed to raise these issues with the trial court. Thus, any complaint with respect to voluntariness of his plea has not been preserved.
We affirm the trial courts judgment.
Bailey C. Moseley
Justice
Date Submitted: August 15, 2011
Date Decided: August 17, 2011
Do Not Publish
[1]In cause number 06-10-00223-CR, Rodgers appealed a conviction of possession of methamphetamine in an amount of four grams or more but less than 200 grams, and sentence of twelve years imprisonment on the same grounds.
[2]The trial court was not required to admonish Rodgers that the two sentences would run consecutively for reasons other than the fact that consecutive sentences were not imposed. In Williams v. State, 253 S.W.3d 673, 678 (Tex. Crim. App. 2008), the Texas Court of Criminal Appeals wrote: It is apparent from the language of this statute that a conviction for an offense listed anywhere within § 481.134 cannot run concurrently with a conviction for an offense under any other criminal statute. Just reading the statute under the auspices of common usage and grammar, any other criminal statute means a criminal statute not listed within § 481.134. Id. Here, as in Williams, Rodgers conviction in cause number 06-10-00223-CR was for violation of Section 481.115(d) of the Texas Health and Safety Code, a statute specifically listed in Section 481.134(c). Tex. Health & Safety Code Ann. §§ 481.115(d), 481.134(c) (West 2010). As in Williams, Rodgers punishment in this case was increased for a conviction listed under Section 481.134(c), but because all of [Rodgers] convictions were for offenses listed under § 481.134(c), the trial court properly ordered that they be served concurrently. Williams, 253 S.W.3d at 678.
Document Info
Docket Number： 06-06-00098-CR
Filed Date： 4/25/2007
Precedential Status： Precedential
Modified Date： 9/7/2015