Keith Adrian Pitts v. State ( 2006 )

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

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No. 06-06-00072-CR ______________________________



KEITH ADRIAN PITTS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law No. 2 Gregg County, Texas Trial Court No. 2005-3480

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

MEMORANDUM OPINION

Without a reporter's record of most of the trial at which Keith Adrian Pitts was convicted ⁽¹⁾ for "Racing on Highway," ⁽²⁾ a class B misdemeanor, we know little about Pitts. Pitts appeals his conviction, asserting error in the information and the jury charge. Because (1) Pitts failed to preserve his claims alleging error in the information, and (2) the jury was properly charged, we affirm the trial court's judgment.

(1) Pitts Failed to Preserve His Claims Alleging Error in the Information

In his first two points of error, Pitts asserts that the information was fundamentally defective in (1) not alleging any culpable mental state and (2) charging Pitts in the disjunctive. We do not reach the substance of either of these points of error, however, as Pitts has not preserved these errors for appeal.

The presentment of an indictment or information to a trial court invests the court with jurisdiction over the cause. Tex. Const. art. V, § 12(b). After jurisdiction vests, a defendant who fails to object to any defect, error, or irregularity of form or substance, waives and forfeits the right to object to the defect, error, or irregularity; and the objection may not be raised on appeal or in any other post-conviction proceeding. Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003); Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990); see also Ex parte Smith, 178 S.W.3d 797, 803 (Tex. Crim. App. 2005). To preserve error for appeal, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. Tex. R. App. P. 33.1; see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Armstrong v. State, 718 S.W.2d 686, 699 (Tex. Crim. App. 1985) (objection must be timely and specific); Marini v. State, 593 S.W.2d 709 (Tex. Crim. App. 1980). Finally, the point of error on appeal must correspond to the objection made at trial. Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998); Thomas v. State, 723 S.W.2d 696 (Tex. Crim. App. 1986).

A. Failure to Allege Culpable Mental State in the Information

Though Pitts filed a pretrial motion to quash the information, it was on the basis of the disjunctive language, not on the basis of the State's failure to include a culpable mental state. Pitts has not shown in the record on appeal that he presented the alleged defect to the trial court before allowing the case to proceed to trial. See Tex. R. App. P. 33.1(a) (preservation of error, how shown). Pitts' failure to raise this claim before trial waives the issue for our review. Additionally, we cannot say the failure to include the required mental state in the information resulted in constitutionally inadequate notice to Pitts of the specific statute under which he was being prosecuted. See Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997); Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995). Because error has not been preserved, we overrule Pitts' first point of error.

B. Charging in the Disjunctive in the Information

Pitts' second point of error is that the information failed to give sufficient notice of the charge(s) against him because it charged in the disjunctive. The initial information alleged that Pitts either participated in a race or participated in a drag race. It read that Pitts:

A) Participated in a race, to wit: the use of one or more vehicles in an attempt to:

1) Outgain or Outdistance another vehicle from passing, OR 2) Arrive at a given

destination ahead of another vehicle.

OR B) Participated in a Drag Race, to wit: The operation: 1) Two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to outdistance each other, OR 2) One or more vehicles over a common selected course, from the same place to the same place, for the purpose of comparing the relative speeds of power acceleration of the vehicle or vehicles in a specified distance or time.

Pitts filed a motion to quash, broadly claiming the State had charged Pitts in the disjunctive seven times. Pitts further claimed two particular errors: (1) error in the drag race charge and (2) error in use of the phrase "one or more vehicles" including in that part of the charge stating "participated in a race, to wit: the use of one or more vehicles in an attempt to: 1) Outgain or Outdistance another vehicle from passing."

The State filed an amended information eliminating the drag racing charge. The amended information charged that Pitts did:

Participate in a race, to wit: to use one or more vehicles in an attempt to outgain or outdistance another vehicle from passing or arrive at a given destination ahead of another vehicle.

The record does not indicate any objection by Pitts to the amended information.

On appeal, Pitts asserts error in the word "or" being used three times in the information, in two disjunctive theories of the case. Pitts claims the State erred in charging Pitts with "using one or more vehicles in an attempt to outgain or outdistance another vehicle or arrive at a given destination ahead of another vehicle." Pitts' argument focuses on impermissible disjunctive methods of committing an offense. We read this as Pitts abandoning the claimed error in the phrase "one or more vehicles" and adopting as the claimed error the State's use of two different statutory definitions of "race"--that is, an attempt to outgain/outdistance another or an attempt to arrive ahead of another. See Tex. Transp. Code Ann. § 545.420(b)(2). Error is not preserved for review if it varies from the objection below. Ibarra v. State, 11 S.W.3d 189, 196 (Tex. Crim. App. 1999); Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Pitts' only remaining specific objection applicable to the amended information was the phrase "one or more vehicles," an objection Pitts has now abandoned. Pitts' argument raised on appeal does not comport with the specific error presented to the trial court.

Further, we find that Pitts' broad pretrial objection that the information "charges in the disjunctive seven times" is not sufficiently specific to allow us to consider the current objection to have been included within it. Once the State amended the information, removing six of the nine uses of the word "or," Pitts failed to bring to the trial court's attention that any remaining "or" was among those objectionable seven he mentioned in his motion to quash. Not every use of the word "or" in an indictment or information is error. See generally Hunter v. State, 576 S.W.2d 395 (Tex. Crim. App. 1979). Without having presented the trial court a specific objection to a particular "or" in this disjunctive charge, the contention may not be raised on appeal. See Wilson, 71 S.W.3d at 349.

For these reasons, we overrule Pitts' challenges to the information.

(2) The Jury Was Properly Charged

Pitts' final point of error is that the trial court charged the jury in the disjunctive by listing two definitions of "race" without requiring the jurors to convict Pitts unanimously on one of the definitions. The jury was instructed that a "race" was "the use of one or more vehicles in an attempt to outgain or outdistance another vehicle or arrive at a given destination ahead of another vehicle." The jury was charged that, if it found beyond a reasonable doubt that Pitts did "participate in a race, to-wit: to use one or more motor vehicles in an attempt to outgain or outdistance another vehicle or arrive at a given destination ahead of another vehicle," the jury should find him guilty "as alleged in the information." The jury returned a general verdict of "guilty of racing on highway as charged in the information."

Pitts is correct that a jury must be instructed that it must unanimously agree on a defendant's commission of a particular offense. See Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If separate charged acts constitute separate offenses, the jury must be instructed that it must be unanimous in finding that a defendant committed a particular act and offense. See id. at 749. If, however, the alternatively charged acts constitute, not separate offenses, but merely different means of committing the same offense, unanimity is not necessarily required. See Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006). In such a case, unanimity may be dispensed with when the separately and disjunctively charged acts are "basically morally and conceptually equivalent" such that due process is not violated. Id. at 313.

Our analysis here must start with determining whether the disjunctively charged definitions of "race" reference separate offenses or merely different means of committing one single offense. Following Jefferson, we look first to the legislative intent, as indicated by the plain statutory language.  See  id.  at  312.  The  statute  states  that  a  person  "may  not  participate  in  any manner in . . . a race." Tex. Transp. Code Ann. § 545.420(a)(1) (emphasis added). The plain language of the statute, therefore, indicates the Legislature's intent to establish racing by participation in a race as a single offense, regardless of the manner or means by which it was committed. The subsequent statutory definitions of "race" speak, therefore, to the manner of racing, not to the establishment of separate offenses. See Tex. Transp. Code Ann. § 545.420(b)(2); Jefferson, 189 S.W.3d at 312. As the different methods of racing charged to the jury were merely means of committing an element of the crime, jury unanimity was not required. See Jefferson, 189 S.W.3d at 312.

Nor is due process denied in dispensing with unanimity on the means of racing. Racing by speeding, under the first, (b)(2)(A), definition, and racing by, say, taking a short cut, under the second, (b)(2)(B), definition are "basically morally and conceptually equivalent." See id. at 313; Schad v. Arizona, 501 U.S. 624, 643 (1991). Compare Tex. Transp. Code Ann. § 545.420(b)(2)(A), (B). Thus, using the two definitions disjunctively in the jury charge is not error.

Even if the jury charge had contained the asserted error, Pitts demonstrates no harm. See Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000); Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). When charge error has been objected to, as here, reversal is required on a showing of "some harm." Almanza, 686 S.W.2d at 171 (op. on reh'g); see also Tex. R. App. P. 44.2(a). This harm "must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171. The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Id. at 174; Roberts v. State, 849 S.W.2d 407, 410 (Tex. App.--Fort Worth 1993, pet. ref'd).

The burden lies with the defendant to "persuade the reviewing court that he suffered some actual harm as a consequence of the charging error. If he is unable to do so, the error will not result in a reversal of his conviction." Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994) (citing LaPoint v. State, 750 S.W.2d 180, 191 (Tex. Crim. App. 1986) (op. on reh'g)); see also Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). We may not find harm merely from the charge itself.

[T]he Court of Appeals was required to examine the relevant portions of the entire record to determine whether appellant suffered any actual harm as a result of the error. The State argues that the Court of Appeals, in analyzing the instant case for the presence or absence of harm, incorrectly limited its review of the record to the jury charge. We agree. By focusing exclusively upon the charge, the Court of Appeals failed to consider the harmfulness of the charging error in the context of the entire record.

Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

Pitts has presented only a partial reporter's record on appeal, comprising only that part of the charge conference indicating Pitts' objection to the disjunctive charge. See Tex. R. App. P. 34.6(c). We must therefore presume that the partial reporter's record constitutes all of the evidence relevant to Pitts' point of error, including any harm analysis. See Tex. R. App. P. 34.6(c)(4). This record consists only of the charge itself and the fact of Pitts' conviction. The partial record on appeal does not include voir dire or trial transcripts. We find no evidence of harm in this limited record. For these reasons, we overrule Pitts' challenge to the jury charge.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: August 1, 2006

Date Decided: November 9, 2006

Do Not Publish

1. Pitts elected to have the trial court assess his punishment, which the court set at 180 days in county jail, suspended for one year, and a $1,000.00 fine.

2. See Tex. Transp. Code Ann. § 545.420 (Vernon Supp. 2006).