Vincent Spring v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00083-CR
VINCENT SPRING APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Vincent Spring appeals his conviction for unlawfully carrying a
weapon. See Tex. Penal Code Ann. § 46.02(a), (c) (West Supp. 2012). In four
issues, Spring argues that the evidence is insufficient to support his conviction,
that he was denied his right to a speedy trial, and that the State failed (a) to
1
See Tex. R. App. P. 47.4.
provide reasonable notice of its intent to use extraneous-offense evidence and
(b) to timely turn over Brady material. We will affirm.
II. BACKGROUND
Barbara Calvert owns J Corral Club (J Bar), a bar located in Justin, Texas.
J Bar is licensed by Texas to sell alcoholic beverages. Calvert posted a picture
of Spring behind the bar to alert employees that he was not allowed in J Bar
―because of Jody Irons,‖ a waitress at J Bar.
On March 17, 2010, Diana Densmore was working at J Bar when she saw
Spring walk to the back wall by a pool table and begin pacing ―like he was casing
the place.‖ Densmore alerted Calvert, who told Densmore to call the police.
When police arrived at J Bar, Densmore saw Spring put a ―black cylinder‖ on a
nearby shelf behind a container of pool-cue chalk. The officers arrested
Appellant and took him out of J Bar after Calvert showed one of them ―a piece of
paper‖.2 Densmore then told Calvert that she saw Spring put a black cylinder on
a shelf by the pool table before he was arrested. Densmore and Calvert went to
the shelf and found a black cylinder behind the container of pool-cue chalk.
Calvert gave the cylinder to one of the police officers. The object was a
collapsible baton normally used ―for personal protection and to inflict injury‖ and
capable of causing serious bodily injury.
2
Presumably, this paper was a copy of a protective order that Irons had
obtained against Spring after their romantic relationship had ended. Irons was
not at J Bar on March 17. The trial court excluded any evidence of the protective
order at the guilt-innocence stage of trial because it was too prejudicial.
2
A grand jury indicted Spring for unlawfully carrying a weapon by
intentionally or knowingly carrying ―a club, to wit: an expandable baton,‖ in a
place licensed to sell alcoholic beverages. The indictment contained
enhancement paragraphs alleging that Spring had previously been convicted of
robbery and aggravated assault, both felonies.
Before trial, Spring requested that the State produce any evidence ―that
may be exculpatory on the issue of guilt or mitigating on the issue of punishment,
including all impeaching material.‖ Spring also filed a request for notice of the
State’s intent to introduce evidence of other crimes, wrongs, or acts at the guilt-
innocence phase of the trial and of its intent to introduce Spring’s prior criminal
record at the punishment phase. See Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(g) (West Supp. 2012); Tex. R. Evid. 404(b), 609(f). Spring further requested
that a subpoena issue for Calvert and included a requirement that she
―produce . . . [e]mployment records for Jody Irons 30 days before and 30 days
after 3/17/2010.‖ See Tex. Code Crim. Proc. Ann. art. 24.02 (West 2009).
The State notified Spring that it intended to introduce his criminal record ―in
its Case in Chief or during punishment‖ (―first notice of intent‖). The first notice of
intent included Spring’s alleged commission of ―Unauthorized Use of a Motor
Vehicle on November 17, 2010, and eleven other offenses.‖3 The State later
3
The State concedes that the date of this offense was actually
November 1, 2010. Appellant raises no complaint that this date error equated to
unreasonable notice of the extraneous offense.
3
amended its notice to include seventeen additional offenses and again included
the unauthorized-use-of-a-motor-vehicle offense but clarified that it was a
pending case (―amended notice of intent‖), for a total of twenty-eight offenses.
A jury convicted Spring of unlawfully carrying a weapon as alleged in the
indictment. At punishment, Spring pleaded true to the aggravated-assault
enhancement paragraph.4 The jury assessed Spring’s punishment at twenty
years’ confinement and a $10,000 fine. This appeal followed.
III. EVIDENTIARY SUFFICIENCY
In his fourth issue, Spring argues that the evidence is insufficient to
support his conviction. We construe his argument as relying upon the same
rationale that he articulated in his motion for a directed verdict—that there is no
evidence that the collapsible baton is a club or prohibited weapon capable of
causing serious bodily injury.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903
(Tex. Crim. App. 2012). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
4
The State elected to proceed solely on this paragraph at punishment and
not on the robbery enhancement additionally alleged in the indictment.
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draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex.
Crim. App. 2011). We must presume that the fact-finder resolved any conflicting
inferences in favor of the verdict and defer to that resolution. See Jackson, 443
U.S. at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.
A person unlawfully carries a weapon if the person intentionally or
knowingly carries on or about his person a club on a premises licensed to serve
alcoholic beverages. Tex. Penal Code Ann. § 46.02(a), (c). A club ―means an
instrument that is specially designed, made, or adapted for the purpose of
inflicting serious bodily injury or death by striking a person with the instrument,‖
including but not limited to blackjacks, nightsticks, maces, and tomahawks. Id.
§ 46.01(1) (West Supp. 2012).
Sarah Reedy testified that she dated Spring in March 2010 and that he told
her that he had gone to J Bar with a ―folding baton‖ to ―seek revenge for the ones
that had [previously] damaged his property.‖ Densmore and Calvert found a
―black cylinder‖ that Densmore had seen Spring leave inside J Bar. ―Tire
thumper‖ was hand carved on the side of the baton but was not printed on by the
baton’s manufacturer. The police officer to whom Calvert gave the black
cylinder—Deputy Dustin McConnell—testified that the cylinder was a metal,
collapsible baton. He also stated that such a baton is capable of causing serious
bodily injury or death. Deputy McConnell testified that collapsible batons, like the
one that Spring told Reedy he had brought to J Bar, are routinely carried and
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used by law-enforcement officers for protection, to ―inflict injury,‖ and to gain
compliance thorough the infliction of pain. This evidence is sufficient to show
that the collapsible baton functioned as a weapon and was specially designed or
made to inflict serious bodily injury or death. See Tex. Penal Code Ann.
§ 46.01(1). Indeed, there was no testimony at trial that the collapsible baton was
designed or made to do anything other than inflict injury. See Warr v. State, No.
05-06-00847-CR, 2007 WL 2052168, at *2 (Tex. App.—Dallas 2007, no pet.) (not
designated for publication) (holding evidence that ―rungu‖ was designed to hunt
and kill animals was sufficient to find it was designed as a weapon and, thus, was
a club under sections 46.01 and 46.02); cf. Meza v. State, 652 S.W.2d 399, 400–
01 (Tex. Crim. App. 1983) (holding evidence insufficient to show ―club‖ was
specifically designed, made, or adapted to inflict serious bodily injury or death);
Reisner v. State, 627 S.W.2d 728, 729 (Tex. Crim. App. [Panel Op.] 1982)
(holding bracelet not a club under section 46.02 because no evidence bracelet
was designed, made, or adapted to inflict injury or death); Alexander v. State,
617 S.W.2d 269, 270 (Tex. Crim. App. [Panel Op.] 1981) (holding motorcycle
chain with nylon cord on the end was not club under section 46.02 because no
evidence that addition of nylon cord acted to adapt chain for purpose of inflicting
injury or death); State v. Ortiz, 286 S.W.3d 514, 517–18 (Tex. App.—Corpus
Christi 2009, pet. ref’d) (holding no probable cause to arrest defendant for
unlawful carrying of weapon when no evidence that ―tire buddy,‖ which checked
tire pressure, was specially designed, made, or adapted to inflict serious bodily
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injury or death); Coleman v. State, 790 S.W.2d 369, 370–71 (Tex. App.—Dallas
1990, no pet.) (holding evidence insufficient to show instrument was club under
section 46.02 where evidence only showed that wooden, 18-inch cylinder with
―Tire Knocker‖ printed on side was designed and used to determine if truck tires
have correct air pressure); Heerema v. State, 786 S.W.2d 532, 533 (Tex. App.—
Dallas 1990, no pet.) (holding because no evidence that instrument—which was
rounded on one end and rough cut on the other—was adapted for use as a club,
evidence insufficient to show instrument was club under section 46.02); Adkins v.
State, No. 02-01-00288-CR, 2003 WL 1524138, at *6–7 (Tex. App.—Fort Worth
2003, pet. ref’d) (op. on PDR, not designated for publication) (holding evidence
that 18-inch stick covered in animal bite marks was only used to train and play
with defendant’s dogs insufficient to qualify as club under section 46.02).
Therefore, we hold that the evidence is sufficient to show that the collapsible
baton was a club as statutorily defined, and we overrule Spring’s fourth issue.
IV. UNPRESERVED ISSUES
A. Extraneous-Offense Evidence at Punishment
In his first issue, Spring argues that the trial court erred by admitting
extraneous-offense evidence at punishment because the State’s notice was late
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and, thus, unreasonable.5 Specifically, Spring points to the admission of
testimony about the November 1, 2010 unauthorized-use-of-a-motor-vehicle
conviction.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,
339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort
Worth 2012, no pet.). Further, the trial court must have ruled on the request,
objection, or motion, either expressly or implicitly, or the complaining party must
have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena
v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A reviewing court should
not address the merits of an issue that has not been preserved for appeal.
Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g);
Clay, 361 S.W.3d at 765.
We note that Spring objected to the unreasonableness of the State’s
amended notice of intent based on ―the additional 17 points‖ that were added in
the amended notice of intent. But Spring raised no objection to the lateness of
5
Although Spring states that the trial court also erred by admitting such
evidence at guilt-innocence, he only points to evidence adduced during
punishment. Therefore, we will review this issue under article 37.07 and not rule
404(b). See Patton v. State, 25 S.W.3d 387, 392 (Tex. App.—Austin 2000, pet.
ref’d).
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the notice regarding the unauthorized-use-of-a-motor-vehicle charge, which had
been included in the original notice and, therefore, was not one of ―the additional
17 points.‖ At no point did Spring bring to the trial court’s attention that the
amended notice of intent gave unreasonable notice of the 2010 charge of
unauthorized use of a motor vehicle. See Tex. R. App. P. 33.1(a)(1). Spring has
therefore forfeited this complaint. We overrule Spring’s first issue.
B. Brady Evidence
In his second issue, Spring argues that the State violated its obligation to
provide exculpatory evidence to him before trial because, although specifically
requested by Spring, the State did not produce employment records for Irons to
show that she was employed at J Bar. The State contends that Appellant
forfeited his Brady claim because he did not request that Calvert produce the
employment records during her testimony.6 We agree. Spring’s complete failure
to raise this issue in the trial court forfeits his complaint. See id.; Keeter v. State,
175 S.W.3d 756, 760–61 (Tex. Crim. App.), cert. denied, 546 U.S. 582 (2005).
Further, Appellant has failed to show a Brady violation. The State violates
due process if it fails to disclose evidence in its possession favorable to the
accused if the evidence is material either to guilt or to punishment. Brady v.
6
We note that before closing arguments at guilt-innocence began,
Appellant stated that he intended to call Calvert at punishment to produce Irons’s
employment records pursuant to his subpoena. Appellant did not attempt to call
Calvert as a witness at punishment or otherwise introduce the employment
records.
9
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963); see Hampton v.
State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). Spring does not argue (and
there is nothing in the record to show) that the State had Irons’s employment
records in its possession. See Hafdahl v. State, 805 S.W.2d 396, 399 n.3 (Tex.
Crim. App. 1990) (―Brady and its progeny do not require prosecuting authorities
to disclose exculpatory information to defendants that the State does not have in
its possession.‖); Harwood v. State, 961 S.W.2d 531, 545 (Tex. App.—San
Antonio 1997, no pet.) (―The State is not obligated to produce evidence of which
it has no knowledge, and [Appellant] has not demonstrated that the State knew
about or ever possessed the tapes.‖). Moreover, as the State points out, Calvert
and Densmore testified that Irons was employed as a waitress at J Bar, and
there is no evidence to the contrary. This is fatal to Appellant’s Brady claim. We
overrule Spring’s second issue.
C. Speedy Trial
In his third issue, Spring argues that his Sixth Amendment right to a
speedy trial was violated because his trial occurred nearly two years after his
arrest. The State responds that Spring forfeited this issue because he raises it
for the first time on appeal.
A defendant forfeits his speedy-trial claim when he does not raise the claim
before the trial court and, instead, raises the argument for the first time on
appeal. See Dunn v. State, 819 S.W.2d 510, 526 (Tex. Crim. App. 1991), cert.
denied, 506 U.S. 834 (1992); Mulder v. State, 707 S.W.2d 908, 915 (Tex. Crim.
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Ohio App. 1986); Henson v. State, 388 S.W.3d 762, 770–72 (Tex. App.—Houston [1st
Dist.] 2012, pet. granted); cf. Orand v. State, 254 S.W.3d 560, 567–69 (Tex.
App.—Fort Worth 2008, pet. ref’d) (holding speedy-trial claim not wholly forfeited
where defendant raised issue in the trial court by timely filing post-judgment
motion in arrest of judgment and motion to dismiss indictment). Spring did not
bring to the trial court’s attention that he believed his constitutional right to a
speedy trial had been violated. He therefore forfeited this issue. We overrule
Spring’s third issue.
V. CONCLUSION
Having overruled all of Spring’s issues, we affirm the trial court’s judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 13, 2013
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