Juan Carrera v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00156-CR

Juan Carrera,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 278th District Court

Walker County, Texas

Trial Court No. 19509C

abatement ORDER

            Juan Carrera was adjudicated guilty of the offense of aggravated sexual assault and sentenced to 5 years in prison. Carrera had retained counsel to represent him at the hearing on the State’s motion to adjudicate.  Carrera is now in prison.  We have received a rather crude letter from Carrera, without the benefit of an attorney, expressing his desire to appeal his conviction.  Since receiving the notice of appeal, we have received the clerk’s record which shows no indication from Carrera that he wishes to represent himself on appeal.  We have also attempted to acquire a docketing statement from Carrera, to no avail. 

            Therefore, this appeal is abated to the trial court to hold a hearing within 30 days from the date of this order to consider:  1) whether Carrera is indigent and if so, appoint counsel for him, 2) whether to allow Carrera to retain counsel, or 3) whether Carrera may represent himself on appeal, if he so wishes.  If Carrera wishes to waive his right to counsel and represent himself on appeal, the waiver should be made knowingly and intelligently and he should be warned of the dangers and disadvantages accompanying such waiver.  Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975); Hatten v. State, 71 S.W.3d 332, 333 (Tex. Crim. App. 2002).  A waiver of the right to counsel must be in writing and must substantially comply with article 1.051(g) of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 2005).

            Supplemental Clerk’s and Reporter’s Records are ordered to be filed within 45 days from the date of this order.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal abated

Opinion delivered and filed July 23, 2008

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       Jeffery Wayne Wheatly is confined in the Hughes Unit of the Department of Corrections in Coryell County. He was indicted for the offense of Harassment By Persons in Certain Correctional Facilities, as provided in section 22.11 of the Penal Code. Tex. Pen. Code Ann. § 22.11 (Vernon Supp. 2004). On his plea of not guilty, a jury found him guilty and assessed the maximum penalty of twenty years.

      The allegation was that Wheatly, with intent to harass, alarm, and annoy them, caused Correctional Officer Birdwell to contact urine and Officer Davis to contact urine and feces. At trial, each testified about the event alleged. Each was asked about “how he felt” when the substances were thrown on him. Birdwell testified he was “upset, annoyed, and very furious” and wanted to get it off as fast as possible. Davis said it was “emotional” and that he “felt helpless to a certain degree.” Wheatly objected to these questions, but the court allowed the testimony. On appeal, he says this “victim impact” testimony should not have been allowed during the guilt-innocence phase of the trial because it was not relevant to any issue.

      A trial court's ruling concerning the admission or exclusion of evidence may not be disturbed on appeal unless an abuse of discretion is shown. Najar v. State, 74 S.W.3d 82, 86 (Tex. App.—Waco 2002, no pet.). We ask whether the trial judge's decision lies "within the zone of reasonable disagreement." Id. The trial court must first determine if the evidence is relevant under Rule 401. Id.; Tex. R. Evid. 401. If so, the evidence is admissible unless forbidden by a constitutional provision, a statute, or a rule. Id.; Tex. R. Evid. 402.

      As the State points out, proof of “chunking” alone does not prove the offense; the offense is complete only on proof of an “intent to harass and alarm and annoy another person.” A person’s immediate reaction to an event can be circumstantial evidence of the defendant’s intent to harass, alarm, and annoy that person; thus, it can be relevant. Tex. R. Evid. 401. If relevant, the evidence is admissible. Tex. R. Evid. 402. Because Wheatley’s intent is an element of the offense, we cannot say that the trial judge’s decision to admit evidence of how the alleged victims felt—at the instance the conduct occurred—is outside the zone of reasonable disagreement. See Najar, 74 S.W.3d at 86. We overrule the issue.

      We affirm the judgment.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed June 23, 2004

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