Wesley Eugene Perkins v. State ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00305-CR
NO. 03-14-00306-CR
NO. 03-14-00307-CR
NO. 03-14-00308-CR
NO. 03-14-00309-CR
NO. 03-14-00310-CR
Wesley Eugene Perkins, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NOS. C-1-CR-13-100065, C-1-CR-13-100066, C-1-CR-13-100067
C-1-CR-13-100068, C-1-CR-13-100069 & C-1-CR-13-100070
HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING
MEMORANDUM OPINION
Wesley Eugene Perkins was charged by complaint with two instances each of
driving with expired registration, driving with an expired inspection sticker, and failing to maintain
financial responsibility. See Tex. Transp. Code §§ 502.040, 548.602, 601.051, 601.053(b), 601.191.
Following jury trials in the municipal court, Perkins was found guilty of all six charges and was
ordered to pay a total of $1,980 in fines, fees, and costs. Perkins, appearing pro se, appealed to the
county court at law, raising 33 issues. The county court affirmed the municipal court’s judgments.
Perkins then brought this appeal.1 We will affirm the county court’s judgment.
BACKGROUND
Perkins was stopped by a police officer in 2007. The officer wrote Perkins a ticket
for the offenses of driving with expired registration, driving with an expired inspection sticker, and
failing to maintain financial responsibility. In January 2013, a police officer stopped Perkins’s wife
for speeding. Perkins’s wife called Perkins, who then drove to meet her and the officer. Because
he had an outstanding warrant, the officer took Perkins into custody and also wrote him a ticket for
the offenses of driving with expired registration, driving with an expired inspection sticker, and
failing to maintain financial responsibility. Perkins was charged by complaint with all six offenses.
A jury trial was held in May 2013 for the 2007 offenses. The jury found Perkins
guilty of each charged offense. A second jury trial was held in June 2013 for the 2013 offenses. The
second jury found Perkins guilty of each charged offense. Perkins appealed all six cases to the
county court at law, which affirmed the municipal court’s judgments. In its judgment, the county
court at law summarized Perkins’s appeal as follows:
Appellant has filed a 94 page brief with a 74 page appendix. He raises 33 points of
error. He challenges jurisdiction, evidence, application of the law to him, double
jeopardy, disqualification of the trial judge, special appearances, standing, notice, etc.
Many of his points of error are unintelligible. He writes in a peculiar argot with his
own vocabulary. This Court will address the few points of error that are intelligible
1
In this appeal from the county court’s judgment on appeal from a municipal court’s order,
the record and briefs on appeal in the county court constitute the record and briefs to this Court. See
Tex. Gov’t Code § 30.00027(b)(1).
2
and will deem the other points of error waived by failure to brief in an understandable
form.
The county court concluded that none of Perkins’s points of error had any basis and overruled
all of them. Perkins raises 33 issues in this appeal.2 As did the county court, we will address the
comprehensible legal arguments contained in Perkins’s brief.
Defendant’s Plea
In his first issue, Perkins contends that the judgments of guilt for each of the charged
offenses signed by the municipal court after the jury found him guilty of each charge incorrectly
recite that Perkins pleaded “not guilty.” At both trials, Perkins refused to enter a plea and instead
stated that he was “unable to plead at this time,” and had “a standing objection on file and cannot
plead at this time.” The judge presiding over each of the trials then entered a plea of not guilty on
his behalf as required by law. See Tex. Code Crim. Proc. art. 26.12 (if defendant refuses to answer
when asked how he pleads to offense charged, plea of guilty shall be entered in minutes of court).
While Perkins did not actually say the words “not guilty,” the effect of his refusal to answer was
that he entered a plea of not guilty. We overrule Perkins’s first issue.
Double Jeopardy
In his second issue, Perkins argues that his double-jeopardy rights were violated
when he was convicted of both the offense of driving with an expired registration and driving with
2
Although we liberally construe pro se briefs, litigants who represent themselves are held
to the same standards as litigants represented by counsel. See Mansfield State Bank v. Cohn, 573
S.W.2d 181, 184-85 (Tex. 1978). To hold otherwise would give pro se litigants an unfair advantage
over litigants with an attorney. Id.
3
an expired inspection. According to Perkins, he was tried and punished twice on the same offense
“under different labels.” The Double Jeopardy Clause of the Fifth Amendment, applicable to the
states through the Fourteenth Amendment, protects an accused against (1) a second prosecution
for the same offense after acquittal, (2) a second prosecution for the same offense after conviction,
and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977);
Ex parte Amador, 326 S.W.3d 202, 205 (Tex. Crim. App. 2010). “There are two variations of
a multiple-punishments claim: (1) where there are both a greater and a lesser-included offense and
the same conduct is punished twice—once for the basic conduct and a second time for that conduct
plus more; and (2) where the same criminal act is punished under two distinct statutes and the
legislature intended the conduct to be punished only once—such as causing a single death and
being charged with both intoxication manslaughter and involuntary manslaughter.” Ex parte Denton,
399 S.W.3d 540, 545 (Tex Crim. App. 2013) (citing Langs v. State, 183 S.W.3d 680, 685 (Tex.
Crim. App. 2006)). Perkins maintains that the second variation occurred in the present case because
the language of the jury charge is “practically identical” for the offenses of driving with an expired
registration and driving with an expired inspection.
To determine whether there have been multiple punishments for the same offense,
we apply the “same elements” test from Blockburger v. United States, 284 U.S. 299, 304 (1932).
“[W]here the same act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or only one is whether each
provision requires proof of an additional fact which the other does not.” Id. The offense of driving
with an expired registration and the offense of driving with an expired inspection plainly have
4
different elements. One requires that the registration has expired while the other requires that
the inspection sticker has expired. These are two separate offenses. Perkins’s double-jeopardy
rights were not violated when he was adjudicated guilty of both offenses. We overrule Perkins’s
second appellate issue.
Definition of “Transportation” and Other Terms Used in the Statute
In his third issue, Perkins argues that he was not engaged in an activity constituting
his definition of “transportation” and, consequently, could not have been in violation of any
provisions of the Texas Transportation Code. He maintains that, for this reason, the municipal court
did not have subject-matter jurisdiction over the cases. Specifically, Perkins asserts that “the State
acted from the outset knowing that there was no ‘transportation’ at issue,” and yet the trial court
refused to dismiss and instead rendered judgment against Perkins. According to Perkins, in order
for his activity to constitute “transportation” it must be done “for profit or hire.” Perkins further
asserts that, because the statute he was charged with violating is called the Texas Transportation
Code, it applies only to activities involving commercial activity and thus does not extend to
individuals operating their cars not for profit or hire.
The definition of “transportation” is, however, irrelevant to the offenses for which
Perkins was charged. He was charged with operating a motor vehicle on a public roadway with
expired registration, operating a motor vehicle on a public roadway with an expired inspection
certificate, and failing to maintain financial responsibility. See Tex. Transp. Code §§ 502.040,
548.602, 601.051. Moreover, Lozman v. City of Riviera Beach, Florida, the case Perkins relies on
to formulate his definition of “transportation” as involving only activities conducted “for profit or
5
hire,” does not support his position. See Lozman v. City of Riviera Beach, Fla., 133 S. Ct. 735, 739
(2013) (concluding that floating home, which was not self-propelled, was not capable of being “used
as a means of transportation on water” and thus did not meet definition of “vessel” in Rules of
Construction Act, 1 U.S.C. § 3). The Lozman court did not, as Perkins argues, define “transportation”
as “depending on for profit or hire.” In fact those words appear nowhere in the opinion. The Court
did look to whether the vessel was capable of moving people or cargo, but did not also require that
the movement be “for profit or hire.” See id. at 746 (“And when it moved, it carried, not passengers
or cargo, but at the very most [] only its own furnishings, its owners’ personal effects, and personnel
present to assure the home’s safety.”). Even if the Supreme Court’s analysis of whether a floating
house is a “vessel” had any bearing on the scope of the Texas Transportation Code, which we do not
believe to be the case, Lozman in no way compels the conclusion that “transportation” is limited to
moving people or things “for profit or hire.” We overrule the third issue.
In his fourth, fifth, sixth, and seventh issues, Perkins asserts that because he was not
engaged in “transportation”—i.e. an activity conducted for profit or hire—as required to be subject
to the provisions of the Texas Transportation Code, there also was no “vehicle” or “motor vehicle”
involved and he was not “driving” or “operating” a vehicle or motor vehicle as required to commit
the offense of operating a motor vehicle with an expired registration and inspection. Having rejected
Perkins’s definition of “transportation,” we overrule these four issues.
Perkins’s eighth appellate issue states no comprehensible legal argument that
could support reversing the municipal court’s judgments for the charged offenses. In this issue
Perkins makes reference to a ‘“funny money’ scam” that is allowed to continue because “this
6
state” is actually a “Constitution-free, maritime, commercial zone,” and thus the Law of the Sea
applies. To the extent issue eight could be construed as a challenge to the county court’s judgment,
it is overruled.
Denial of Perkins’s Motions Challenging the Municipal Court’s Subject-Matter Jurisdiction
Before each trial, Perkins filed a document titled “Special Appearance and Plea to the
Jurisdiction” in which he advanced many of the same arguments he later raised in the county court
on appeal. In his ninth appellate issue, Perkins contends that the municipal court erred by denying
this jurisdictional challenge. That challenge was based on the assertion that, because there was
no evidence of “transportation,” the municipal court lacked subject-matter jurisdiction over the
criminal complaints charging him with violations of the Texas Transportation Code. Having rejected
Perkins’s argument regarding the scope of the Texas Transportation Code, we overrule this issue.3
Denial of Perkins’s Motions to Dismiss
In his tenth and eleventh issues, Perkins asserts that it was error for the municipal
court to deny his motions to dismiss the case at the close of the State’s case-in-chief and again at the
close of his case-in-chief. Perkins argues that, because there was no evidence of that he was engaged
in commercial activity, there was no “transportation” that was governed by the Texas Transportation
Code and, as a consequence, the court lacked subject-matter jurisdiction. Having rejected Perkins’s
arguments regarding the scope of the Texas Transportation Code, we overrule these two issues.
3
We also overrule the sixteenth, seventeenth, eighteenth, twenty-eighth, twenty-ninth, and
thirtieth issues, which depend on the correctness of Perkins’s arguments regarding the definition of
“transportation” and the scope of application of the Texas Transportation Code.
7
Personal Jurisdiction
In his twelfth issue, Perkins asserts that the municipal court lacked personal
jurisdiction over him because there was “no service of anything on [him]” and because of the failure
to file or serve “any Information.” The record includes evidence that Perkins appeared both at
pretrial conferences and at trial. The record also includes evidence that Perkins was timely provided
with the complaints for each of the six charged offenses. The twelfth issue is overruled.
Disqualification
In his thirteenth and fourteenth issues, Perkins asserts that the deputy clerk was the
complaining witness for each of the charged offenses and, as a consequence, the trial judge is
actually a witness in the case and should have been disqualified.4 The record reflects, however, that
the deputy clerk affirmed that the information in the complaint was “sworn to and subscribed” by
the complaining witnesses. The record does not reflect that the complaining witnesses were deputy
clerks. We overrule the thirteenth and fourteenth issues.5
Perkins’s Objection to “Round-Robin” Handling of the Cases
Perkins’s fifteenth issue raises general and unsupported complaints about the
municipal court’s handling of the cases and asserts that he “doubts that the trial court ever had
4
In essence, Perkins contends that the deputy clerk is an agent of the trial court and therefore
the trial judge is in fact the complaining witness and therefore disqualified from presiding over the
trial.
5
We also overrule the thirty-second issue in which Perkins contends that his due process
rights were violated because the deputy clerk was “the state’s witness.”
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signature authority.” Perkins fails to provide any substantive argument as to this complaint and does
not include citations to the record. This complaint is therefore waived. See Tex. R. App. P. 38.1(i).6
Notice of Complaint
In his nineteenth issue, Perkins complains that he was not given adequate notice
of the complaints as required by statute and due process. Essentially, Perkins complains that he
was not provided with the complaints until the day of the pre-trial conference and thus, the notice
was inadequate. The record reflects that Perkins was given copies of the complaints no later than
March 21, 2013, when he attended a pre-trial conference. Because he did not agree to waive the
statute’s one-day notice requirement, see Tex. Code Crim. Proc. art. 45.018(b), the municipal court
reset the pre-trial conference for a date in May. Perkins complains that having the complaint for
only one day before a proceeding in his trial is not meaningful notice of its contents. The record
reflects, however, that Perkins was given a copy of the complaints on March 21, at least one month
before the pre-trial conference, two months before the trial on the 2007 offenses, and three months
before the trial on the 2013 offenses. We overrule Perkins’s nineteenth issue.7 We also overrule issues
6
Issue thirty-one, in which Perkins contends the trial court violated his right to be free from
unlawful seizure, is also inadequately briefed and has been waived. See Tex. R. App. P. 38.1(i).
7
We also overrule the twentieth issue, which asserts that article 25.04 of the Texas Code of
Criminal Procedure does not comport with due process requirements. See Tex. Code Crim. Proc.
art. 25.04 (“In misdemeanors, it shall not be necessary before trial to furnish the accused with a copy
of the indictment or information; but he or his counsel may demand a copy, which shall be given as
early as possible.”). Article 25.04 has no relevance to the present case. Texas Code of Criminal
Procedure chapter 45, not chapter 25, establishes procedures for processing cases that come within
the criminal jurisdiction of the justice and municipal courts. See id. art. 45.001. Additionally, we
overrule the twenty-first issue, which is predicated on the incorrect premise that article 45.018 does
not apply to this municipal court proceeding.
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twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, and twenty-seven, which are each
premised on Perkins’s incorrect assertion that he did not receive adequate notice of the complaints.
Sufficiency of the Complaints
In his thirty-third issue, Perkins argues that he was not timely served with the
complaints and thus was forced to waive any objections he had to them in violation of his due
process rights. The record reflects that Perkins was given copies of the complaints on March 21,
2013, at least a month before trial and in time to file an extensive and detailed “Special Appearance
and Plea to the Jurisdiction” and “Motion for Discovery.” He had sufficient opportunity to object
to the complaints. Moreover, the complaints sufficiently state facts showing the commission of
the offenses charged. See Vallejo v. State, 408 S.W.2d 113, 114 (Tex. Crim. App. 1966) (complaint
need not show the same particularity or specificity as is necessary in indictment or information).
The purpose of the complaint is to apprise the accused of the facts surrounding the charged offense
to permit him to prepare a defense to such charge. Rose v. State, 799 S.W.2d 381, 384 (Tex.
App.—Dallas 1990, no pet.). A complaint valid on its face is sufficient to support a prosecution by
information. Wells v. State, 516 S.W.2d 663, 664 (Tex. Crim. App. 1974); Rose, 799 S.W.2d at 384.
No requirement exists that the affiant have firsthand knowledge, and the court need not inquire
into the nature of the knowledge on which an affiant bases her factual statements. Rose, 799 S.W.2d
at 384; Pringle v. State, 732 S.W.2d 363, 368 (Tex. App.—Dallas 1987, pet. ref’d). A complaint
is not insufficient simply because the police officer writing the ticket did not personally swear to
the complaint. Rose, 799 S.W.2d at 384. The complaints are sufficient, and Perkins had no valid
objection to them. We overrule the thirty-third issue.
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CONCLUSION
Having overruled each of Perkins’s appellate issues, we affirm the judgment of
the county court at law.8
__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: June 25, 2015
Do Not Publish
8
The State has filed a motion to hold Perkins in contempt and assess sanctions for filing
baseless and groundless pleadings in contravention of Texas Code of Criminal Procedure article
1.052(a). See Tex. Code Crim. Proc. art. 1.052(a) (signature of defendant constitutes certificate of
belief formed after reasonable inquiry that instrument is not groundless). While Perkins’s arguments
are confusing, repetitive, and reflect a misreading of applicable statutes and unrelated caselaw,
we cannot conclude on this record that they are in fact brought in bad faith or for
harassment, unnecessary delay, or other improper purpose so as to warrant sanctions. Perkins is
admonished, however, that repetition of these arguments in subsequent proceedings could lead to
a different result.
11