Valeska Barnes v. the State of Texas ( 2023 )

NO. 12-22-00077-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
VALESKA BARNES, § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT AT LAW
THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
Valeska Barnes appeals her conviction for assault. In two issues, Appellant contends that
Texas Penal Code Section 12.50 is unconstitutional, and deficiencies in the reporter’s record
necessitate a remand for retrial on the merits. We affirm.
BACKGROUND
The State, by information, charged Appellant with assault. 1 The information also alleged
that the offense was committed in an area subject to a state of disaster declaration made by the
Governor. 2 This allegation elevated the minimum punishment to a range of 180 days and one
year of confinement in jail, along with up to a $4,000 fine. 3 This allegation did not affect
Appellant’s eligibility for community supervision.
Appellant pleaded “not guilty” to the offense and the matter proceeded to a jury trial.
The State and Appellant stipulated that the offense occurred in an area subject to a state of
disaster declaration. The evidence revealed that Appellant and the victim unknowingly shared
the same lover, and that early one morning Appellant discovered the victim in her lover’s bed,
1
See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2022).
2
See TEX. GOV’T CODE ANN. § 418.014 (West 2019).
3
See TEX. PENAL CODE ANN. § 12.50 (West Supp. 2022).
resulting in an assault in which Appellant struck the victim, and a melee ensued. Their lover
returned to the apartment and separated the two. The victim reported the incident to the
authorities several hours later, who subsequently arrested Appellant.
After hearing the evidence, the jury found Appellant “guilty” of the offense and
sentenced her to 360 days of confinement in the county jail and assessed a $4,000 fine.
However, the jury also recommended that the portion of Appellant’s sentence requiring her
confinement be suspended and that she be placed on community supervision. The trial court
announced Appellant’s sentence in accordance with the jury’s verdict. This appeal followed.
CONSTITUTIONALITY OF TEXAS PENAL CODE SECTION 12.50
In her first issue, Appellant contends that the Texas Legislature’s promulgation of Texas
Penal Code Section 12.50 violates the separation of powers doctrine enshrined in the Texas
Constitution.
Standard of Review
We review de novo a challenge to the constitutionality of a statute. Salinas v. State, 464
S.W.3d 363, 366 (Tex. Crim. App. 2015). We afford great deference to the Legislature and
presume that the statute is constitutional and that the Legislature has not acted unreasonably or
arbitrarily. Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2014). The party challenging
the statute normally bears the burden of establishing its unconstitutionality. Id. at 15.
When we interpret statutes, our duty is to determine and give effect to the apparent intent
of the legislators who voted on it. Whitehead v. State, 273 S.W.3d 285, 288 (Tex. Crim. App.
2008). In determining the legislative intent, we focus our attention on the text of the statute and
how ordinary legislators would have understood the text. Id. We are not empowered to
substitute what we believe is right or fair for what the Legislature has written, even if the statute
seems unwise or unfair. Vandyke v. State, 538 S.W.3d 561, 569 (Tex. Crim. App. 2017).
“Judicial intervention is generally unwarranted no matter how unwisely we may think a political
branch has acted.” Id.Applicable Law
The separation of powers among branches of government is fundamental in our country’s
history. Id. at 571. The Texas Constitution provides in pertinent part as follows:
2
The powers of the Government of the State of Texas shall be divided into three distinct
departments, each of which shall be confined to a separate body of magistracy, to wit: Those
which are Legislative to one; those which are Executive to another; and those which are Judicial to
another; and no person, or collection of persons, being of one of these departments, shall exercise
any power properly attached to either of the others, except in the instances herein expressly
permitted.
TEX. CONST. art. II, § 1.
Although the language of the separation of powers provision is rigid, there is natural
overlap in the duties delegated to each branch. Vandyke, 538 S.W.3d at 571. Not every instance
of overlap, therefore, will amount to a violation of separation of powers. See Armadillo Bail
Bonds v. State, 802 S.W.2d 237, 239-40 (Tex. Crim. App. 1990).
The Separation of Powers Clause may be violated in either of two ways. Vandyke, 538
S.W.3d at 571. First, it is violated when one branch of government assumes, or is delegated, to
whatever degree, a power that is more “properly attached” to another branch. Armadillo Bail
Bonds, 802 S.W.2d at 239. When a branch of government violates separation of powers in this
way, it is said to have usurped another branch’s power. See Ex parte Giles, 502 S.W.2d 774,
786 (Tex. Crim. App. 1974). The provision is also violated when one branch unduly interferes
with another branch so that the other branch cannot effectively exercise its constitutionally
assigned powers. Armadillo Bail Bonds, 802 S.W.2d at 239 (citing Rose v. State, 752 S.W.2d
529, 535 (Tex. Crim. App. 1987)). This undue influence test “‘takes the middle ground between
those who would seek rigid compartmentalization and those who would find no separation of
powers violation until one branch completely disrupted another branch’s ability to function.’”
State v. Williams, 938 S.W.2d 456, 460 (Tex. Crim. App. 1997) (quoting Armadillo Bail Bonds,
802 S.W.2d at 239).
Our Constitution vests all lawmaking power in the Legislature of the State of Texas.
TEX. CONST. art. III, § 1. Provisions of our Constitution serve only as a limitation on power of
the Legislature and not as a grant of power. Vandyke, 538 S.W.3d at 573. This includes the
power to make, alter, and repeal laws, in accordance with the other provisions of the
Constitution. Id. Of importance here, the Legislature possesses the sole authority to establish
criminal offenses and prescribe punishments. Id. (citing State ex rel. Smith v. Blackwell, 500
S.W.2d 97, 104 (Tex. Crim. App. 1973) (“The Legislature is invested with the lawmaking power
of the people and may define crimes and prescribe penalties.”)); see also Armadillo Bail Bonds,
3
802 S.W.2d at 239 (citing Rose v. State, 752 S.W.2d 529, 535 (Tex. Crim. App. 1987)); Jones v.
State, 902 S.W.2d 102, 105–06 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).
Defendants must generally preserve error on alleged violations of most constitutional
rights. Perales v. State, 622 S.W.3d 575, 585–86 (Tex. App.—Houston [14th Dist.] 2021, pet.
ref’d). This includes an argument that a particular statute violates the separation of powers
provision of our Constitution. Wilkerson v. State, 347 S.W.3d 720, 724 (Tex. App.—Houston
[14th Dist.] 2011, pet. ref’d) (stating that separation of powers challenges must be preserved).
However, there is an exception: a penal statute’s compliance with the separation of powers
section of the Texas Constitution is an absolute, systemic requirement that cannot be waived.
Henson v. State, 407 S.W.3d 764, 768 (Tex. Crim. App. 2013); Elizondo v. State, 541 S.W.3d
271, 275 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).
Discussion
It is difficult to ascertain the exact contours of Appellant’s constitutional claim in her first
issue. On the one hand, she appears to challenge the Legislature’s delegation of authority to the
Governor in Texas Government Chapter 418 pertaining to his declaration of a state of disaster.
On the other hand, she also appears to contend that Texas Penal Code Section 12.50 violates the
separation of powers doctrine in Article I, Section 2 of the Texas Constitution.
To the extent that Appellant challenges the Legislature’s delegation of authority to the
Governor in Chapter 418 of the Texas Government Code, we hold that she failed to preserve this
issue. See TEX. R. APP. P. 33.1; see also Ex parte Williams, No. 03-20-00457-CR, 2021 WL
1583882, at *11–12 (Tex. App.—Austin Apr. 23, 2021, no pet.) (mem. op., not designated for
publication) (holding defendant failed to preserve error challenging separation of powers
argument concerning Governor’s COVID-19 pandemic order made under Texas Government
Code Chapter 418, which among other things, suspended rules related to personal bonds for
individuals who have been convicted or have been arrested for crimes involving physical
violence). At no point did Appellant object to the application of Chapter 418. See Wilkerson,
347 S.W.3d at 724. In fact, the parties stipulated that the assault took place in an area subject to
a disaster zone proclamation issued by the Governor.
In any event, Chapter 418 does not present a violation of the separation of powers
provision. The Disaster Act in Chapter 418 establishes a detailed, comprehensive framework
that, in the case of a disaster, allocates powers, duties, and responsibilities across various levels
4
of state government and multiple agencies. See Ector Cnty. All. of Businesses v. Abbott, No.
11-20-00206-CV, 2021 WL 4097106, at *2 (Tex. App.—Eastland Sept. 9, 2021, no pet.) (mem.
op.). A “disaster” is “the occurrence or imminent threat of widespread or severe damage, injury,
or loss of life or property resulting from any natural or man-made cause,” including the COVID-
19 pandemic. See TEX. GOV’T CODE ANN. § 418.004(1) (West Supp. 2022); see also See Ector
Cnty. All. of Businesses, No. 11-20-00206-CV, 2021 WL 4097106, at *2. The Governor of
Texas is responsible for meeting “the dangers to the state and people presented by disasters.”
TEX. GOV’T CODE ANN. § 418.011(1) (West 2019).
The purposes of the Disaster Act include, among other things, to: (1) reduce vulnerability
of people and communities of this state to damage, injury, and loss of life and property resulting
from natural or man-made catastrophes and riots; (2) clarify and strengthen the roles of the
governor, state agencies, the judicial branch of state government, and local governments in
prevention of, preparation for, response to, and recovery from disasters; (3) authorize and
provide for cooperation in disaster mitigation, preparedness, response, and recovery; and (4)
authorize and provide for coordination of activities relating to disaster mitigation, preparedness,
response, and recovery by agencies and officers of this state, and similar state, local, interstate,
federal-state, and foreign activities in which the state and its political subdivisions may
participate. See id. § 418.002(1), (4)-(6) (West Supp. 2022).
The Act provides that the “[G]overnor by executive order or proclamation may declare a
state of disaster if the [G]overnor finds a disaster has occurred or that the occurrence or threat of
disaster is imminent.” Id. § 418.014(a) (West 2019). The “state of disaster” continues until the
Governor finds that the threat or danger has passed; or the disaster has been dealt with to the
extent that emergency conditions no longer exist; and terminates the state of disaster by
executive order. Id. § 418.014(b). Importantly, the statute continues:
A state of disaster may not continue for more than 30 days unless renewed by the
[G]overnor. The [L]egislature by law may terminate a state of disaster at any time. On termination
by the [L]egislature, the [G]overnor shall issue an executive order ending the state of disaster.
Id. § 418.014(c). This provision avoids any separation of powers issue because it balances the
Legislature’s delegation of authority to the Governor to act expeditiously in times of emergency,
while also preserving its own authority to terminate the state of disaster. In other words, the
5
statute retains the power of the Legislature to act in its legislative function and does not represent
an improper delegation of authority to the Governor.
As for Texas Penal Code Section 12.50, the Texas Court of Criminal Appeals has held
that an Appellant cannot waive a violation of the separation of powers doctrine’s application to a
penal statute. See, e.g., Henson, 407 S.W.3d at 768. Appellant’s brief appears to primarily
challenge the Governor’s authority to declare a disaster zone in periods when the Legislature
does not meet. However, liberally construing her brief, it appears Appellant also challenges
Section 12.50. We hold that Appellant’s separation of powers challenge to this statute is
unavailing.
Texas Penal Code Section 12.50 provides elevated penalties for various categories of
enumerated offenses committed during a declaration of a state of disaster made by the Governor
under Texas Government Code Chapter 418. See TEX. PENAL CODE ANN. § 12.50 (West Supp.
2022). Assault is one of these offenses, elevating the minimum term of confinement to 180 days.
See id § 12.50(b)(1), (c).
As we have stated, the Texas Constitution vests all lawmaking power in the Legislature
of the State of Texas. TEX. CONST. art. III, § 1. Furthermore, the Legislature possesses the sole
authority to establish criminal offenses and prescribe punishments. Vandyke, 538 S.W.3d at 573
(citing Blackwell, 500 S.W.2d at 104); see also Armadillo Bail Bonds, 802 S.W.2d at 239;
Jones, 902 S.W.2d at 105–06.
Texas Penal Code Section 12.50 does not represent a delegation of its lawmaking
authority; rather it provides elevated punishments for offenses that occur during a state of
disaster, which is fully within its legislative function to establish criminal offenses and prescribe
punishment. See Vandyke, 538 S.W.3d at 573. It is within the constitutional power vested in the
Legislature to determine that the penalty for certain crimes like assault occurring in times of a
state of disaster should be enhanced, the apparent purpose of which is to provide additional
deterrence and keep the peace during such periods. See TEX. GOV’T CODE ANN. § 418.002, .014;
TEX. PEN. CODE ANN. § 12.50; Vandyke, 538 S.W.3d at 573.
Accordingly, we hold that Appellant has failed to show that one branch of government
improperly usurped another branch’s power, or that one branch unduly interfered with another
branch so that the other branch cannot effectively exercise its constitutionally assigned powers.
See Armadillo Bail Bonds, 802 S.W.2d at 239.
6
Appellant’s first issue is overruled.
REPORTER’S RECORD DEFICIENCIES
In Appellant’s second issue, she argues that the reporter’s record is of such deficient
quality and character that it may not be relied upon by this Court, necessitating a remand for
retrial on the merits.
Standard of Review
“Whether a court reporter violates her statutory duties is a question of law that we review
de novo.” Walsh v. State, No. 05-19-00710-CR, 2021 WL 3438069, at *1–3 (Tex. App.—Dallas
Aug. 5, 2021, no pet.) (mem. op., not designated for publication) (citing Herron v. State, 625
S.W.3d 144, 152–53 (Tex. Crim. App. 2021) (questions of statutory construction reviewed de
novo); Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015) (“We review de novo
both pure questions of law and mixed questions of law and fact that do not depend upon
credibility and demeanor.”)).
“When we interpret statutes, we look to the literal text of the statute in question and
attempt to discern the fair, objective meaning of the text at the time of its enactment.” Day v.
State, 614 S.W.3d 121, 127 (Tex. Crim. App. 2020). Our analysis ends if the plain language is
clear and unambiguous because “the Legislature must be understood to mean what it has
expressed, and it is not for the courts to add or subtract from such a statute.” Id.Applicable Law
Texas Rule of Appellate Procedure 13.1 provides that the official court reporter must,
“unless excused by agreement of the parties, attend court sessions and make a full record of the
proceedings.” TEX. R. APP. P. 13.1(a). Texas Government Code Section 52.046 provides that,
“on request, an official court reporter shall:
(1) attend all sessions of the court;
(2) take full shorthand notes of oral testimony offered before the court, including objections
made to the admissibility of evidence, court rulings and remarks on the objections, and exceptions
to the rulings;
(3) take full shorthand notes of closing arguments if requested to do so by the attorney of a
party to the case, including objections to the arguments, court rulings and remarks on the
objections, and exceptions to the rulings;
(4) preserve the notes for future reference for three years from the date on which they were
taken; and
(5) furnish a transcript of the reported evidence or other proceedings, in whole or in part, as
provided by this chapter.
7
TEX. GOV’T CODE ANN. § 52.046(a) (West 2023) (emphasis added).
The Texas Court of Criminal Appeals has held that a defendant must object to the court
reporter’s failure to record a portion of the trial proceedings to preserve error. Valle v. State, 109
S.W.3d 500, 508–09 (Tex. Crim. App. 2003); see also Rodriguez v. State, 491 S.W.3d 18, 33–34
(Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (holding that defendant’s argument regarding
reporter’s failure to record bench conferences was waived on appeal where defendant did not
object at trial); Velazquez v. State, 222 S.W.3d 551, 556–57 (Tex. App.—Houston [14th Dist.]
2007, no pet.) (concluding that defendant’s complaint that court reporter failed to record bench
conferences was not preserved for appellate review because defendant did not object to lack of
court reporter’s presence at conferences). This rule likewise applies to any alleged failure to
record voir dire proceedings in whole or in part. See Washington v. State, 127 S.W.3d 111,
114–15 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding defendant did not preserve
complaint that court reporter failed to record voir dire proceedings); see also Hunnicutt-
McDonald v. State, No. 01-18-01035-CR, 2019 WL 3484215, at *2–3 (Tex. App.—Houston [1st
Dist.] Aug. 1, 2019, no pet.) (mem. op., not designated for publication) (holding defendant
waived failure of court reporter to record bench conferences concerning challenges for cause of
prospective jurors during voir dire).
Discussion
Appellant first contends that the voir dire transcript contains twenty-five instances in
which the court reporter indicated “ANON” when referring to some of the venirepersons on the
panel, thereby limiting her ability to challenge the panel on appeal.
At the outset, we note that many of the “ANON” references occurred because Appellant’s
counsel did not identify the venireperson to whom he asked the question. The remaining
“ANON” references were in response to inconsequential matters. Furthermore, Appellant did
not object to any juror selected in voir dire. She also never objected or otherwise made the trial
court aware of her complaint, and therefore did not preserve error. See Washington, 127 S.W.3d
at 114–15; see also Hunnicutt-McDonald, 2019 WL 3484215, at *2–3.
Moreover, even if she had preserved the issue, she fails to show error. In a similar case,
the defendant alleged that the court reporter failed to fulfill her duties in not identifying the
prospective jurors by name or number, and that this prevented him from challenging the
dismissal of two of the jurors for cause. See Walsh, 2021 WL 3438069, at *1–2. The Dallas
8
Court of Appeals disagreed, noting that the reporter identified each member of the venire panel
as “prospective juror” unless the judge or counsel identified them by name or juror number. See
id. at *2. The court explained:
Section 52.046 includes no requirement that the court reporter identify veniremembers by name or
juror number when the trial judge and the parties’ counsel do not identify the veniremembers by
name or juror number. Under the plain language of the statute, the court reporter was required to
“take full shorthand notes of oral testimony.” The court reporter fulfilled that duty here. The
record shows that the court reporter fully transcribed the proceedings by transcribing the words
spoken by the trial judge, the veniremembers, and the parties’ counsel. There is no indication in
the record that any portion of what transpired is missing from the transcript.
See id. at *3 (internal citations omitted). That is what occurred in the instant case—the court
reporter recorded the veniremember’s name or number when referred to as such by counsel or
the court. Any “ANON” references occurred when either the court or counsel failed to identify
the person by name or number. Therefore, we conclude that the court reporter did not err in this
regard. See id.
Next, Appellant challenges several portions of the trial transcript, alleging that it contains
several inaccuracies. For example, Appellant contends that the following excerpts from the
transcript outlined in her brief contain inaccuracies of such a magnitude that we cannot rely on
them, necessitating a remand for a new trial:
During the direct examination of the [victim,] the prosecutor . . . is reported as having asked the
witness:
Q. And was it usual for him to get pone calls at 5:17 in the morning? Was that normal?
....
Q. Was there anything going on in [your lover’s] life at that?
A. Yes. His grandfather ill at that time.
Q. What kind of disease did he have?
A. Some type of cancer or something that he was very ill and very sick six.
....
Q. You spent the night, at the request of [your lover] in his bed, and you were attack?
A. Yes, ma’am.
....
Q. Now, [victim], are you on Face Book?
A. Yes, ma’am.
Q. What is Face Box?
....
9
Q. You wold be talking about Detective Stouffer, then?
A. Correct.
....
Q. And there are a lot of people that smoke marihuana. I appreciate your
honesty for admitting that. Thank you for telling the true.
Under recross examination, defense counsel is reported as having asked the victim:
Q. Okay. And you wanted that commitment, didn’t?
A. Yes, I did.
On redirect examination, [the prosecutor] asked [the victim]:
Q. But you ended things after this happen, didn’t you?
A. Correct.
....
Q. And you didn’t specifically ask?
A. No, because I was really looking at was it an assault and how the assault
occurred. Not what happened six hours or ten hours our however long prior to
that.
During [the prosecutor’s] direct examination of Officer Seth Stouffer, the transcript reports:
A. Which looking at assaults, she had visible injuries then she’s assault.
We first note that when such an error is raised for the first time in the appellate court, we
may abate the appeal and refer the matter to the trial court to be resolved. See TEX. R. APP. P.
34.6(e)(3) (“If the dispute arises after the reporter’s record has been filed in the appellate court,
that court may submit the dispute to the trial court for resolution.”); see also Flores v. Grayson
Cnty. Cent. Appraisal Dist., No. 05-16-00180-CV, 2016 WL 7384161, at *3 (Tex. App.—Dallas
Dec. 21, 2016, no pet.) (mem. op.) (discussing discretionary nature of appellate courts to submit
disputed inaccuracies in court reporter’s record to trial court for resolution). In other words, if
not warranted in a particular case, we are not required to abate the appeal. See TEX. R. APP. P.
34.6(e)(3); see also Flores, 2016 WL 7384161, at *3. Here, the complained of portions of the
transcript relate to simple misspellings or omitted words that are immaterial when considered in
their context within the record.
Furthermore, among other requirements, to be entitled to a new trial for deficiencies in
the reporter’s record, the error must relate to a significant exhibit or significant portion of the
reporter’s record, and such portion must be necessary to the appeal’s resolution. See TEX. R.
10
APP. P. 34.6(f)(2)-(3); see also Lazy W Conservation Dist. v. Jones, No. 12-22-00168-CV, 2023
WL 327805, at *8 (Tex. App.—Tyler Jan. 19, 2023, no pet. h.) (mem. op.) (holding that missing
portion of record be significant and necessary to appeal’s resolution, and if not, error is harmless
and new trial not required). Appellant has not shown that the errors are significant, necessary to
the appeal’s resolution, or that she was harmed by any of the inaccuracies in the record. See
Flores, 2016 WL 7384161, at *3 (overruling appellant’s complaints about alleged inaccuracies
in court reporter’s record and noting appellant “has failed to put forth any argument about how
he has been harmed by these alleged inaccuracies or how they might affect our ability to conduct
an appellate review”). Accordingly, for these reasons, we hold that Appellant is not entitled to a
new trial for the alleged errors in the reporter’s record.
Appellant’s second issue is overruled.
DISPOSITION
Having overruled Appellant’s two issues, the trial court’s judgment is affirmed.
BRIAN HOYLE
Justice
Opinion delivered March 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
11
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 31, 2023
NO. 12-22-00077-CR
VALESKA BARNES,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the County Court at Law
of Nacogdoches County, Texas (Tr.Ct.No. CF2001769)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.