Weizhong Zheng v. State ( 2005 )

Opinion issued February 17, 2005

In The  

Court of Appeals

For The  

First District of Texas  

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  NO. 01-04-00062-CR

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 WEIZHONG ZHENG, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law

 Waller County, Texas

Trial Court Cause No. CC03-499  

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MEMORANDUM OPINION

          A jury in a Justice of the Peace court convicted appellant, Weizhong Zheng, of the offense of speeding. See Tex. Transp. Code Ann. § 545.351 (Vernon 1999). In a trial de novo in the County Court at Law, the trial court found appellant guilty after a bench trial and assessed a $250.00 fine. We determine (1) whether the evidence was legally and factually sufficient to show that appellant’s speed was not reasonable and prudent; (2) whether appellant preserved his complaints based on the trial court’s admission of radar evidence of appellant’s speed; and (3) whether appellant preserved his complaint that the trial court abused its discretion in denying his pre-trial motion for discovery. We affirm.

Background

          Department of Public Safety (“DPS”) Trooper D. Masters had been trained at the DPS academy on how to operate and to certify the accuracy of radar. He was recertified in radar operation every two years. On January 18, 2003, Trooper Masters noticed two cars traveling on the highway near or beside each other at the same high speed. Using his radar, Trooper Masters clocked the two cars at 82 miles per hour in an area in which the speed limit was 65 miles per hour. Trooper Masters then pulled over the vehicles and cited both drivers for speeding. Appellant was one of the drivers. Prior to determining the cars’ speed, Trooper Masters had calibrated his radar with a tuning fork, pursuant to DPS policy and training. The trooper testified that he believed that his radar had given an accurate reading of the cars’ speed.

          Appellant testified that he was traveling “about 70” miles per hour and “cruising and listening to music” in “fairly light” traffic when his radar detector alerted. Although appellant admitted that, at the time that he was stopped, the speed limit was 65 miles per hour, he claimed that a state government website showed that the speed limit had been 70 miles per hour until about eight months before, but had been changed for environmental reasons. Appellant also claimed to have found from a website that the average speed around the time of trial for the pertinent area was 70 miles per hour.

Sufficiency of the Evidence

          In his third issue, appellant contends that “[t]he trial court erred in finding that Appellant’s speed was not reasonable or prudent.” We construe this challenge to attack the legal and factual sufficiency of the evidence showing that appellant was speeding.

A.      Standards of Review

          In conducting a legal-sufficiency review, we view the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

          In reviewing a factual-sufficiency challenge, we ask “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Id. at 11. The factual-sufficiency standard “acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Zuniga v. State, 144 S.W.3d 477, 485 (Tex. Crim. App. 2004). The appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The fact finder is entitled to believe all, some, or none of any witness’s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).   

B.      Discussion  

          “An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.” Tex. Transp. Code Ann. § 545.351(a); see also id. § 545.351(b). “A speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.” Id. § 545.352(a) (Vernon 1999).

          Trooper Masters testified that his radar clocked the two cars, one of which was appellant’s, at 82 miles per hour in a 65-mile-per-hour zone. This was some evidence, viewed in the light most favorable to the judgment, that appellant’s speed was neither reasonable nor prudent. See id. § 545.352(a) (establishing speed in excess of speed limit as prima facie evidence of unreasonable, imprudent, and unlawful speed); see Le v. State, 963 S.W.2d 838, 841-42 (Tex. App.—Corpus Christi 1998, pet. ref’d) (holding that officer’s testimony that radar clocked accused’s speed at 95 miles per hour in a 70-mile-per-hour zone was legally sufficient to support speeding conviction); Larson v. State, No. 01-99-00203-CR, 1999 WL 977833, at *2 (Tex. App.—Houston [1st Dist.] Oct. 28, 1999, no pet.) (not designated for publication) (holding that officer’s testimony that radar clocked accused’s speed at 72 miles per hour in a 55-mile-per-hour zone was legally sufficient evidence to support speeding conviction). We hold that the evidence was legally sufficient to support appellant’s conviction.

          Appellant claims that the evidence was factually insufficient for the following reasons: (1) the speed limit had previously been 70 miles per hour and had been reduced to 65 miles per hour, allegedly for environmental reasons, rather than for safety reasons; (2) the average speed in the pertinent area a few days before trial was 70 miles per hour; and (3) traffic was light on the day of the violation. However, appellant admitted that, at the time that he was stopped, the actual speed limit was 65 miles per hour, 17 miles per hour below the speed at which the trooper testified that appellant had been driving and five miles per hour below the speed at which appellant claimed to have been driving. By even appellant’s testimony, he was exceeding the speed limit. Additionally, the trial court could have believed that appellant was driving 82 miles per hour, as the trooper testified, rather than at 70 miles per hour, as appellant testified. Thus, even if a speed admittedly five miles per hour above the speed limit could be deemed reasonable and prudent, the trial court could have believed that appellant was not driving at that speed, but was instead driving at 12 miles per hour above that speed. As for appellant’s contention that the average speed in the area was 70 miles per hour, appellant did not seek to admit evidence in support of his contention, he did not explain why the internet website from which he had allegedly obtained this data was reliable, and the website’s data on which he based this testimony concerned the speed as of a few days before trial, rather than as of the time of the violation. Finally, the trial court could reasonably have believed that light traffic meant less chance that the radar had read the speed of the wrong cars, rather than viewing that fact in a way that favored appellant. Simply put, the trial court was in the best position to assess witness credibility and evidentiary weight, and we cannot disturb the court’s implicit credibility and weight determinations on appeal. See Sharp, 707 S.W.2d at 614.  

          We hold that the State’s evidence was not so obviously weak as to undermine confidence in the conviction and that that proof was not so greatly outweighed by contrary proof as to render the conviction manifestly unjust. See Zuniga, 144 S.W.3d at 484; Johnson, 23 S.W.3d at 11. We thus hold that the evidence was factually sufficient to support appellant’s conviction.

          We overrule appellant’s third issue.

Admission of Radar Evidence

          In his first and second issues, appellant argues that the trial court abused its discretion by admitting radar evidence to determine both appellant’s speed and the fine assessed. Specifically, appellant argues that the State failed to show that the radar evidence was reliable and relevant under Kelly v. State. See 824 S.W.2d 568, 572 (Tex. Crim. App. 1992) (holding generally that, for scientific-theory evidence to be considered reliable, its underlying scientific theory must be valid, technique applying theory must be valid, and technique must have been properly applied on occasion in question).   

          However, appellant has waived his challenges because (1) he did not object when the trooper testified to the speed at which the radar clocked appellant, and appellant himself discussed the radar-recorded speed on cross-examination, and (2) when appellant did object to the trooper’s testimony, appellant did not raise any ground that could be construed as a Kelly objection. Appellant argues that he, as “a pro se party, objected as best he could to the validity of the introduction of the radar unit and the lack of foundation established by the State.” However, “[t]he rules of evidence, procedure, and substantive law will be applied the same to all parties in a criminal trial whether that party is represented by counsel or acting pro se.” Williams v. State, 549 S.W.2d 183, 187 (Tex. Crim. App. 1977).

          We overrule appellant’s first and second issues.  

Discovery Ruling

          In his fourth issue, appellant argues that the trial court abused its discretion by implicitly denying his pre-trial motion for discovery of the name of and information concerning the other driver who was pulled over with appellant. Appellant’s only argument is: “This information was in the possession of the State, [appellant] had good cause for asking for it, and it was material. By refusing to allow [appellant] to discover the identity of the one witness who could exonerate [appellant], the trial court committed reversible error.”

          Appellant moved to discover the other driver’s name, driver’s license number, and contact information on August 15, 2003. On October 1, 2003, the trial court signed what appears to have been a standard discovery order. The court’s order did not expressly mention the other driver, but the order did require the State to produce “all exculpatory evidence pursuant to Brady v. Maryland and related cases.”

          We hold that appellant has waived his complaint. He did not object that the court’s discovery order did not expressly require production of this information; he did not advise the court at any time before, during, or after trial that he could not proceed without this information, or even that the other driver could have provided exculpatory evidence. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a). Moreover, the court did order the State to produce all exculpatory evidence; the order could thus arguably have covered even the other driver’s identity and information, if the State possessed evidence about the other driver and determined that it was exculpatory. Given that the order required a Brady disclosure that could theoretically have covered this aspect of appellant’s discovery request, appellant had a duty to notify the court if he did not receive the requested information from the State. Indeed, the order itself provided:

This Order will dispose of all pre-trial discovery and specified request motions heretofore filed. Because of the extensive nature of the discovery herein ordered, it will be considered that such Order is acceptable to the Defense pending the review of the evidence and documents ordered. In the event that further particularized discovery is considered necessary, the Defense will thereafter file a written Motion for Discovery, addressing only matters not covered in this Order, and such Motion will be presented to the Court at the earliest practical opportunity before trial.

(Emphasis added.) Appellant did not follow this procedure.

          Additionally, appellant has not shown any harm. See Tex. R. App. P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”). During trial, appellant did not try to ask the trooper about the other driver’s identity, although he cross-examined the trooper about the court in which the other driver’s citation was filed; the trooper testified that both drivers were driving at 82 miles per hour, and even appellant admitted that he was exceeding the speed limit by five miles per hour; appellant’s questioning indicated that he knew in what court the other driver’s citation was filed and the other driver’s citation number, and nothing shows that appellant would not have had access to the other driver’s identity through that court’s records; and nothing shows that the other driver would in fact have provided exculpatory evidence, as appellant claims for the first time on appeal.   

          We overrule appellant’s fourth issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Tim Taft

                                                                        Justice

Panel Consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).