Kaiwanis Hicks v. State ( 2003 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00064-CR ______________________________



KAIWANIS HICKS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 123rd Judicial District Court Panola County, Texas Trial Court No. 2001-C-211

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Before Morriss, C.J., Ross and Carter, JJ. Opinion by Justice Ross

O P I N I O N

Kaiwanis Hicks was convicted by a jury of aggravated robbery. He was assessed punishment of life imprisonment and a $10,000.00 fine. ⁽¹⁾ Hicks appeals, alleging the trial court erred: 1) by denying his motion to dismiss the indictment; 2) in admitting two pen packets into evidence; 3) in admitting a fingerprint card into evidence; and 4) in allowing the State to elicit testimony regarding his post-arrest silence. For the reasons stated below, we overrule these contentions and affirm the judgment.

The State's evidence showed the following sequence of events: Hicks purchased a lottery ticket at the Nu-Way convenience store in Carthage, Texas. On Sunday, August 5, 2001, Hicks entered the Riderville Grocery convenience store and presented the winning ticket, for collection of his money, to the clerk, Theresa McAlister. McAlister asked him whether he wanted his one dollar winnings in cash or whether he would prefer to trade it in for another lottery ticket. In response, Hicks said he wanted all of the cash in the register and placed a pistol on the counter. McAlister complied with Hicks' demand; Hicks fled, on foot, in a southbound direction.

McAlister reported the robbery, and several officers responded to the scene. Deputy David Gray of the Panola County Sheriff's Department interviewed McAlister, who described the robber as a black male with a short, graying beard. McAlister told police Hicks was wearing a yellow and white polo-style shirt and was carrying what McAlister initially described as a .38 caliber snub-nosed pistol. The officers searched the area, but found no suspect.

The following day, State Trooper Shawn Baker, who was unaware of the Riderville robbery, attempted to make a traffic stop when the unidentified driver began to flee. Baker pursued the man, who suddenly stopped in the middle of a farm-to-market road and ran toward a nearby pond. As he followed after the man, Baker saw what he described as a "flash" in the man's right hand. The man then ran into the pond to a depth of approximately two feet, sat down in the water, submerged his hands, and appeared to be "feeling around his body." Baker arrested the man, who was later identified as Hicks. Baker then directed Deputy David Jeter and Game Warden Bradley Chappell to the general area in which Hicks had been standing in the pond. As Jeter operated a metal detector in that area, Chappell retrieved from the pond an old .32 caliber Valor revolver with a cigarette butt crammed in the chamber.

With her written consent, officers searched the home of Hicks' grandmother, where Hicks was living. The search resulted in the seizure of a yellow, white, and blue polo-style shirt, and several unused cigarette filters that had been removed from cigarettes and placed on the dresser and the back of the bed in what appeared to be Hicks' bedroom. McAlister identified the yellow, white, and blue shirt as the one worn by the man who robbed the store, although she admits she had not remembered the blue stripes in the shirt. Later, McAlister also identified Hicks in a live lineup and again, later, in a photographic lineup.

A grand jury charged Hicks with aggravated robbery by indictment returned December 19, 2001. The indictment read as follows:

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

THE GRAND JURY, for the County of Panola, State of Texas, duly selected, impaneled, sworn, charged and organized as such at the SEPTEMBER Term, 2001 of the 123rd Judicial District Court, upon their oaths present in and to said court at said term that KAIWANIS HICKS, hereinafter styled Defendant, on or about the 5th day of August, 2001, and before the presentment of this indictment in the County of Panola and State of Texas, did then and there, while in the course of committing theft of property, and with intent to obtain or maintain control of said property, intentionally or knowingly threaten or place Theresa McAlister in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a pistol and it further presented in and to said Court that, prior to the commission of the aforesaid offense, (hereinafter styled primary offense), on the 11th day of February, 1987 in cause # 13,714 . . . .

Hicks, speaking on his own behalf, moved to dismiss the indictment on the grounds of an illegally impaneled grand jury, prosecutorial misconduct, and double jeopardy. The court denied his motion. On January 21, 2002, Hicks' attorney also filed a written motion to dismiss the indictment on the ground that it was not properly presented to the district court and thus the court did not have jurisdiction to hear the cause. The court also denied this motion. The jury found Hicks guilty of aggravated robbery, a first degree felony, ⁽²⁾

and assessed his punishment at life imprisonment and a $10,000.00 fine. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003).

Hicks first contends the trial court erred in denying his motion to dismiss the indictment. On this point of error, ⁽³⁾   the pertinent facts are uncontested. The issue of presentment of the indictment to the court presents a question of law. As a result, we review the matter de novo. See Ex parte Mann, 34 S.W.3d 716, 718 (Tex. App.-Fort Worth 2000, no pet.).

The Texas Constitution mandates that an indictment be presented to the court before the court will have jurisdiction. Tex. Const. art. V, § 12(b). "[N]o person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, . . . ." Tex. Const. art. I, § 10. The constitution also empowers the Legislature to make laws to govern the "practice and procedures relating to the use of indictments and informations, . . . ." Tex. Const. art. V, § 12(b).

So, not only do we look to statutory provisions to measure the sufficiency of an indictment, ⁽⁴⁾   we also look to statutory law to determine when and how an indictment is presented. Tex. Const. art. V, § 12(b). An indictment is "presented" when it has been duly acted on by the grand jury and received by the court. Tex. Code Crim. Proc. Ann. art. 12.06 (Vernon 1977). Statutory provisions also codify the necessary result, implied by a constitutional provision, that the court lacks jurisdiction in the absence of proper presentment:

When a defendant has been detained in custody or held to bail for his appearance to answer any criminal accusation before the district court, the prosecution, unless otherwise ordered by the court, for good cause shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or information be not presented against such defendant on or before the last day of the next term of the court which is held after his commitment or admission to bail or on or before the 180th day after the date of commitment or admission to bail, whichever date is later.

Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon Supp. 2003) (emphasis added).

From Article 32.01, we get the language at the heart of this point of error. Failure to present an indictment on or before "the last day of the next term of the court" or "the 180th day after the date of commitment or admission to bail," whichever is later, results in dismissal of the indictment and discharge from bail unless the state can show good cause for the delay. Tex. Code Crim. Proc. Ann. art. 32.01; Ex parte Seidel, 39 S.W.3d 221, 223-24 (Tex. Crim. App. 2001); Mann, 34 S.W.3d at 718. Hicks contends the indictment was not presented to the court during its term, because the court's term was in Shelby County when the indictment was filed. Therefore, we must determine whether the 123rd Judicial District Court was in term in Panola County at the time the indictment was filed. If not, the district court never obtained jurisdiction over the matter, and the indictment should have been dismissed. ⁽⁵⁾    

Article 32.01 also adds another facet to this point of error. After resolution of a split among the courts regarding the constitutionality of Tex. Code Crim. Proc. Ann. art. 28.061 (Vernon Supp. 2003) and its application to Article 32.01, the Texas Court of Criminal Appeals now has held that a defendant's failure to seek dismissal of an indictment, as untimely filed, before an indictment is returned, waives his or her right to complain. Brooks v. State, 990 S.W.2d 278, 285 (Tex. Crim. App. 1999); Tatum v. State, 505 S.W.2d 548, 550 (Tex. Crim. App. 1974), overruled on other grounds by Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1988); see also Hixson v. State, 1 S.W.3d 160, 163 (Tex. App.-Corpus Christi 1999, no pet.); Fisk v. State, 958 S.W.2d 506, 508-09 (Tex. App.-Texarkana 1997, pet. ref'd). In other words, a defendant must seek to dismiss under Article 32.01 before an indictment is returned or else error as to the timeliness of return of the indictment is waived. See, e.g., Brooks, 990 S.W.2d at 285. That being so, Hicks' complaint was waived if the indictment was properly returned December 19, 2001, since his written motion to dismiss the indictment was filed January 21, 2002.

Here, however, we find it necessary to first determine whether the indictment was, in fact, properly presented to the district court. Previous cases challenged the indictment primarily in terms of timeliness of return, asserting that the term in which the indictment was presented was too late according to Article 32.01. Hicks' contention does concern timeliness, as well, but in a more indirect manner. The primary issue brought by Hicks' point of error is one of constitutional requirements of presentment and jurisdiction. He argues that the district court to which the indictment alleges it was presented was not actually in term. Proper presentment is necessary to invoke the district court's jurisdiction. Tex. Const. art. V, § 12(b). Therefore, if we held that error was waived when the indictment was returned, we would be presupposing an essential matter to our examination: that the indictment was, in fact, presented in such a way and at such a time as to confer jurisdiction on the district court. We will address in turn the issues of presentment of the indictment and waiver of error on the return of the indictment.

The Texas Legislature has the power to enact laws to govern the terms of the district courts. Tex. Const. art. V, § 7. General provisions concerning the structure of terms for district courts throughout the state are found in the Government Code. Tex. Gov't Code Ann. § 24.012 (Vernon Supp. 2003). Each term is deemed "continuous" and "begins on a day fixed by law and continues until the day fixed by law for the beginning of the next succeeding term." Id. Specifically, the terms of the 123rd Judicial District Court begin in Panola County on the first Mondays in January, May, and September. Tex. Gov't Code Ann. § 24.225 (Vernon 1988). The terms of the 123rd Judicial District Court of Shelby County begin on the first Mondays of March, July, and November. Id. This means the September term of the 123rd Judicial District Court of Panola County begins on the first Monday in September and ends the day before the first Monday of January. Id. To illustrate, Tex. Gov't Code Ann. § 24.105 (Vernon Supp. 2003) directs the terms of the 5th Judicial District Court, composed of Bowie and Cass Counties, using the same structure and language as used in Section 24.225. See Ex parte Lawson, 966 S.W.2d 532, 534 n.4 (Tex. App.-San Antonio 1996, pet. ref'd). Discussing Section 24.105, the Lawson court explained that the provision creates terms of the court that "stagger and overlap" one another. Id.

Hicks relies on Webb v. State, 161 Tex. Crim. 442, 278 S.W.2d 158, 160 (1955), to support his position the indictment should have been dismissed due to lack of jurisdiction in the trial court. The facts in Webb, however, are distinguishable from those before us. In Webb, an indictment returned by a grand jury convened for a special term of court failed to confer jurisdiction because the district court was without authority to call a special term of the court before the adjournment of the regular term. Id. at 160. That is not the situation here, where the indictment was returned by a grand jury convened for a regular term of court. There simply can be no challenge of the 123rd Judicial District Court's authority to "call" a regular term.

The September term of the 123rd Judicial District Court of Panola County began on the first Monday of September and ended, by law, on the day before the first Monday in January, the day before the January term of the court began. The indictment was filed December 19, 2001, a date clearly falling within the September term of the 123rd Judicial District Court of Panola County. It is to this court the grand jury presented the indictment. Presentment of this indictment to the court during its term was, therefore, sufficient to confer jurisdiction in the district court under Article V, § 12(b) of the Texas Constitution.

The conclusion the indictment was properly presented to the district court also leads us to hold that Hicks' failure to object to the indictment before its proper and timely return waives his complaint as to the denial of his motion to dismiss the indictment. We overrule Hicks' first point of error.

In his second point of error, Hicks complains the pen packets admitted into evidence as State's Exhibits 11 and 12 were inadmissible because the State failed to present evidence to link Hicks to the convictions in those packets. ⁽⁶⁾    

When the State offered the pen packets as exhibits, Hicks requested to question John Depresca, the State's fingerprint expert, on voir dire. At the end of the examination, Hicks objected: "Not the proper predicate for admission, and there's no evidence that these are the fingerprints of this defendant or this defendant is the same defendant in these exhibits."

Before we reach the substance of this issue, we must discuss the preservation of this issue for appeal. The State argues Hicks did not preserve this matter for appeal. We disagree.

An objection to the admission of evidence on the ground no proper predicate has been laid is too general to merit consideration except where the specific grounds for the objection are apparent from the context or, as some courts have held, the evidence is inadmissible for any purpose. Canada v. State, 589 S.W.2d 452, 454 (Tex. Crim. App. [Panel Op.] 1979); Wagner v. State, 720 S.W.2d 827, 829 (Tex. App.-Texarkana 1986, pet. ref'd). Counsel must specifically complain of any omissions in the predicate. Wagner, 720 S.W.2d at 829. Of course, exceptions exist to the rule that a general or imprecise objection waives error. See Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). The Zillender court concluded that, where the grounds for objecting to the admission of evidence are obvious to the trial court and opposing counsel, an objection that otherwise would be too general or imprecise will preserve the issue for appeal. Id.

While it is true Hicks' proper predicate objection, if asserted alone, generally would not be specific enough to preserve error, we do not face that situation since Hicks' objection went on to explain his grounds for objecting sufficiently to apprise the trial court and opposing counsel of those grounds. Hicks' objection emphasized a specific reason that he objected to the admission of the pen packets. Taken as a whole, Hicks' objection, while imprecise, did apprise the trial court and opposing counsel of the grounds on which counsel sought exclusion of the evidence. Therefore, we will consider Hicks' second point of error.

We review a trial court's admission of evidence for an abuse of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Rachal v. State, 917 S.W.2d 799, 816 (Tex. Crim. App. 1996). During the punishment phase of a criminal trial, the state or the defendant may present evidence the court deems relevant to sentencing, including the prior criminal record of a defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (Vernon Supp. 2003). The Texas Court of Criminal Appeals has established that pen packets are admissible to show a defendant's prior criminal record, provided they are properly authenticated as set forth in the Texas Rules of Evidence. Tex. R. Evid. 901, 902, 1005; Reed v. State, 811 S.W.2d 582, 586-87 (Tex. Crim. App. 1991). Proper authentication of the copies in the pen packets include certification by the records clerk of the Texas Department of Criminal Justice, Institutional Division. Reed, 811 S.W.2d at 586. When an authenticated copy of a pen packet is offered into evidence in an effort to prove a prior conviction, it is not essential that the supporting evidence as to identification precede its admission. Yeager v. State, 737 S.W.2d 948, 951 (Tex. App.-Fort Worth 1987, no pet.) (citing Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986)).

The documents in the pen packets, while admissible, are not sufficient, standing alone, to prove the prior convictions. Phariss v. State, 149 Tex. Crim. 406, 194 S.W.2d 1007 (1946). After the pen packet is admitted, it is incumbent on the state to show by independent evidence the defendant is the person previously convicted. Cain v. State, 468 S.W.2d 856, 858 (Tex. Crim. App. 1971). While this is frequently done by expert testimony identifying known fingerprints of the defendant with the fingerprints in the pen packet, there are several other ways to establish that a defendant is the same individual convicted in the pen packet. Beck, 719 S.W.2d at 209. These methods include: (1) testimony of a witness who personally knows the defendant and the fact of his or her prior conviction and identifies the defendant; (2) stipulation or judicial admission of the defendant that he or she has been so convicted; (3) introduction of certified copies of the judgment and sentence and the record of the Texas Department of Corrections or a county jail, including fingerprints of the accused, supported by expert testimony identifying those fingerprints with known prints of the defendant; and (4) comparison by the fact-finder of a record of conviction which contains photographs and a detailed physical description of the named person, with the appearance of the defendant, present in court. Lyle v. State, 669 S.W.2d 853, 855-56 (Tex. App.-Corpus Christi 1984, no pet.); see also Carr v. State, 715 S.W.2d 419, 421 (Tex. App.-San Antonio 1986, pet. ref'd).

Here, both pen packets included certification by the records clerk of the Texas Department of Criminal Justice, Institutional Division, so as to be properly authenticated and, therefore, admissible. The State then went further to present independent evidence establishing Hicks as the individual convicted in the packets through both expert testimony on the comparison of fingerprints and testimony that Hicks is the person whose photograph appears in the pen packets.

The pen packets were admissible, and the evidence presented was sufficient to establish Hicks was the individual convicted, as shown by the pen packets. The trial court did not abuse its discretion in admitting the pen packets. We overrule Hicks' second point of error.

Hicks complains the trial court abused its discretion by admitting the fingerprint card when it was not established as a business record exception to the hearsay rule. Since counsel did not object to the admission of the fingerprint card as hearsay, its admission as a business record is an issue that is not relevant and not before us. The ground of error presented on appeal must be the same as the objection raised at trial. If not, an appellant presents nothing for review. Coffey v. State, 796 S.W.2d 175, 179-80 (Tex. Crim. App. 1990); Bouchillon v. State, 540 S.W.2d 319, 322 (Tex. Crim. App. 1976).

When the evidence was offered, Hicks objected, "[T]he proper predicate has not been laid and it's a copy." The first portion of Hicks' objection would be too general to preserve error since the basis of the objection was not apparent and since there was no indication opposing counsel and the trial court understood the basis for the objection. It preserves nothing for review. The second part of this objection was not one focusing on hearsay or an exception to the hearsay rule. See Tex. R. Evid. 801-804. Instead, it sounded in terms of the best evidence rule, that the trial court should not admit a copy of the fingerprint card in place of the original. See Tex. R. Evid. 1002. Hicks does not appeal the issue of admissibility of a copy of the card over a best evidence objection and, therefore, we cannot address the admissibility of the fingerprint card under the business record exception to the hearsay rule or under the best evidence rule. We overrule Hicks' third point of error.

In his fourth point of error, Hicks contends the trial court erred in allowing the State to elicit Jeter's testimony regarding his post-arrest silence. A defendant is protected from such testimony. An individual's silence after an officer reads him or her Miranda ⁽⁷⁾   warnings may be nothing more than his or her exercise of these Miranda rights. See United States v. Hale, 422 U.S. 171, 177 (1975); Griffith v. State, 55 S.W.3d 598, 604 (Tex. Crim. App. 2001). Therefore, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. Hale, 422 U.S. at 177; Griffith, 55 S.W.3d at 604.

Hicks failed to preserve this issue for review, however, having made no objection at the time the evidence was offered. In order to preserve error for review, the record must show that the party opposing admission of the evidence made a timely and specific objection to its admission and that the trial court made an express or implied ruling on the objection. Tex. R. App. P. 33.1; Tex. R. Evid. 103. If the trial court refuses to rule on the objection, the party opposing admission can preserve error by objecting to the court's refusal to rule. Tex. R. App. P. 33.1.

Here, we simply do not have such an objection and the issue, therefore, is not properly before us. ⁽⁸⁾   Any error as to the admissibility of this testimony was waived by failure to object to it at trial. We overrule Hicks' fourth point of error.

We affirm the judgment of the trial court.

Donald R. Ross

Justice

Date Submitted: February 25, 2003

Date Decided: August 8, 2003

Do Not Publish

1. The jury's verdict assessing punishment included a $10,000.00 fine. The trial court's judgment and sentence, however, omit any reference to a fine.

2. At the punishment phase, the State sought to enhance punishment through evidence of two prior felony convictions. However, it was not allowed to do so. The Penal Code allows enhancement based on prior felony convictions when the state's allegations show that the first conviction became final before the commission of the offense underlying the second conviction. See Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003). Here, the allegations showed that the first conviction did not become final until his community supervision was revoked September 20, 1990, a date subsequent to February 27, 1990, the date Hicks committed the second offense for which he was convicted. In other words, Hicks' community supervision for the first offense had not been revoked at the time he committed the second offense. See Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992).

  

3.

³The State argues Hicks failed to preserve error as to this matter. The record plainly indicates, however, that Hicks' attorney thoroughly presented to the trial court the same grounds asserted in the written motion to dismiss. In this exchange, the trial court acknowledged having read the motion to dismiss, stated he was familiar with the Texas Government Code provisions cited, and explicitly ruled Hicks' "motion will be overruled." Clearly, Hicks preserved his complaint on the trial court's denial of his motion to dismiss the indictment. See Tex. R. App. P. 33.1.

4.

⁴An indictment must meet certain statutory requirements. Tex. Code Crim. Proc. Ann. art. 21.02 (Vernon 1989). An indictment must also satisfy certain requirements, less specific than those of Article 21.02, in order to be an indictment for purposes of Tex. Const. art. V, § 12(b). See Ex parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App. 1990).

However, the sufficiency of the indictment as gauged by statutory or constitutional standards is not before us. Hicks' point of error touches solely on constitutional principles of presentment and jurisdiction. He does not challenge the sufficiency of the presentment allegation in the indictment. In fact, that allegation seems proper and complete. Nor does he argue that the instrument fails to qualify as an indictment according to the Texas Constitution. Rather, Hicks attacks the State's adherence to the procedure of presenting the indictment to the district court.

5.

⁵Even if the indictment should have been dismissed, the State could seek a new indictment for the offense because the court lacks the authority to dismiss the prosecution with prejudice. Tex. Code Crim. Proc. Ann. art. 15.14 (Vernon 1977); Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001).

6.

⁶We note, again, that ultimately the jury charge did not refer to enhancement allegations.

7.

⁷Miranda v. Arizona, 384 U.S. 436 (1966).

8.

⁸In the interest of fairness, we can say that, in any event, the testimony from Jeter was not an improper comment on Hicks' post-arrest silence. The statement was made during questioning about Hicks' being aware of his Miranda rights. Jeter said to Hicks, "You know what your rights are." The district attorney asked if Hicks responded to this statement. To this question, Jeter replied, "The defendant did not say anything." The statement was one that was designed to illustrate that, since Hicks was not fully read his Miranda rights again after the lineup, he was aware of his right to remain silent. Apparently, he was aware of that right, since he made no comment in response to Jeter's question. The prohibition is geared toward exclusion of testimony tending to raise an inference of guilt. See Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995). In this context, the testimony is not of the nature to fall under the prohibition of commentary on post-arrest silence. Those present at trial appeared to share this general understanding, since defense counsel did not object to the testimony at trial. See Smith v. State, 721 S.W.2d 844, 854-55 (Tex. Crim. App. 1986).

Therefore, even if Hicks had preserved error on this issue, we would overrule this point of error.