Robert Marzett v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00043-CR
ROBERT MARZETT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY
TRIAL COURT NO. CR-2014-01023-E
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MEMORANDUM OPINION1
----------
After a bench trial, the trial court convicted Appellant Robert Marzett of
driving while his license was invalid (DWLI), enhanced under section 521.457 of
the Texas Transportation Code,2 and sentenced him to serve forty-five days in
jail, probated for twenty-four months, and to pay a $500 fine. The trial court also
1
See Tex. R. App. P. 47.4.
2
See Tex. Transp. Code Ann. § 521.457 (West 2013).
imposed eight days’ confinement as a condition of community supervision. In
thirteen issues, Appellant challenges his conviction and sentence. Because the
trial court committed no reversible error, we affirm the trial court’s judgment.
Brief Facts
On November 13, 2012, Officer Colby Hill was on patrol in Frisco, Texas,
when a white Chevy Suburban without license plates drove past him. Hill
initiated a traffic stop for the offense of driving without a license plate. Appellant,
who was the driver of the Suburban, told Hill that he did not have a driver’s
license or insurance. Hill also observed that Appellant’s vehicle had neither a
registration nor an inspection sticker. Appellant attempted to explain to Hill that
ordinary traffic laws and regulations do not apply to him. Appellant presented his
passport, and the officer was able to identify Appellant by it. Hill determined that
Appellant’s license had expired in 2008, that it was not eligible for renewal, and
that it had been suspended numerous times. One suspension began on July 18,
2012, and was indefinite; two other suspensions began on August 1, 2012—one
was indefinite and the other lasted through May 15, 2014. Because Appellant
was driving while his driving privilege was suspended and because he was
operating the Suburban without financial responsibility, Hill arrested him for
enhanced DWLI.
Disqualification or Recusal of Trial Judge
In his first issue, Appellant argues that the trial judge erred by failing to
disqualify himself. Appellant argues that the trial judge “did not sit as a judicial
2
officer of the de jure government of the Texas Republic enforcing its general
laws.” He does not direct us to a specific place in the record, nor does he cite
authority for this proposition; we are aware of no law supporting this argument.3
If he is arguing that the trial judge was disqualified under the law as it exists,
there are only three grounds for the disqualification of a judge: the judge served
as a lawyer in the matter in controversy, the judge knows he has an interest in
the subject matter, or the judge is related to one of the parties.4 The record
reflects no ground for disqualification.
If Appellant means that the trial judge should have recused himself from
Appellant’s case, the grounds for recusal are also found in the procedural rules.5
The trial court referred Appellant’s motion to the Presiding Judge of the Eighth
Administrative Judicial Region for a decision. The Presiding Judge denied
Appellant’s motion without a hearing because it failed to state proper grounds for
recusal and failed to state facts which would justify recusal. Appellant does not
complain of the lack of hearing. Based on the record before us and considering
3
See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex.
Crim. App. 2011) (citing cases), cert. denied, 132 S. Ct. 2712 (2012); see also
Marzett v. State, Nos. 05-14-01570-CR, 05-14-01571-CR, 05-14-01611-CR, 05-
14-01612-CR, 2015 WL 3451960, at *3 (Tex. App.—Dallas May 29, 2015, pet.
ref’d) (mem. op., not designated for publication).
4
Tex. R. Civ. P. 18b(a); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim.
App. 1993).
5
Tex. R. Civ. P. 18b(b); Gaal v. State, 332 S.W.3d 448, 452–53 (Tex. Crim.
App. 2011).
3
Appellant’s complaint as voiced and as we understand it, we hold that Appellant’s
complaint was properly overruled. Consequently, we overrule Appellant’s first
issue.
Sufficiency of the Evidence
In his eleventh issue, Appellant argues that the evidence is insufficient to
support his conviction. He appears to argue that because he believes Officer Hill
lacked legal training in Appellant’s interpretation of statutory terms such as
“person,” “operating,” “vehicle,” “motor vehicle,” “public highway,” and “state,” and
because his license had expired before it was suspended, among other similar
arguments, the evidence was insufficient to support his conviction.
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.6 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 draw reasonable inferences from basic facts to
ultimate facts.7 The State was required to prove that Appellant operated a motor
6
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
7
Id.; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied,
136 S. Ct. 198 (2015).
4
vehicle on a highway when his driver’s license or privilege was suspended or
revoked.8
Based on the facts of this case, the sufficiency of the evidence to support
Appellant’s conviction does not turn on whether Officer Hill agreed with
Appellant’s interpretation of the controlling law. The trial judge, not the witness,
rules on issues of law and, as trier of fact in this case, determines issues of fact.9
Appellant has also raised this unique interpretation of law dealing with license
suspensions in appealing his Dallas case. As the State points out,
The [Dallas] court rejected Appellant’s argument and noted that “the
record shows appellant’s license was expired and suspended.” It
held the evidence was sufficient and that Appellant failed to support
his argument with citations to the record or any relevant authority.
[Citations omitted.]
Officer Hill saw Appellant driving a Chevy Suburban on Panther Creek Parkway,
a public roadway in Frisco. Appellant did not have a valid license because his
license had been suspended multiple times, had expired, and was not eligible for
renewal. The evidence here is sufficient to support Appellant’s DWLI conviction.
We overrule Appellant’s eleventh issue.10
8
See Tex. Transp. Code Ann. § 521.457(a) (West 2013).
9
See Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).
10
See Marzett, 2015 WL 3451960, at *3–4.
5
Choice of Law
In his second issue, Appellant argues, “The COURT erred as a matter of
law in applying the TC [transportation code] as the choice of law.” Appellant
seems to argue that he must voluntarily consent to subject himself to the
transportation code in order for the law to apply to him. To the extent that we can
understand Appellant’s argument, it is unsupported by law. Saying it, even under
oath, does not make it so. The law that Appellant cites in purported support of
his position is inapposite. We overrule Appellant’s second issue.11
Probable Cause for Original Stop
In his third issue, Appellant contends that the trial court erred as a matter
of law when it concluded that his warrantless seizure was reasonable. He
argues that Officer Hill misunderstood the law he relied on to justify the stop.
Appellant states in his brief,
In order to support HILL’s suspicion that appellant was required to
display license plates on his private property, prior to seizing
Appellant, he would have to possess specific knowledge that
Appellant was a statutory “person,” who had purchased a statutory
“vehicle” in the “thirty days” prior to this transaction or that Appellant
was a “resident” of the statutory “state.” Hill’s suspicion was based
solely on his visual observation of no license plate and his subjective
interpretation of the TC. Without specific articulable facts that
appellant met one of the requirements for registration, Hill was
without a legal or factual basis to support his conclusion that
appellant was required to display license plates.
11
See Marzett, 2015 WL 3451960, at *4.
6
Appellant cites no relevant authority to support his apparent contention that a
police officer is required to disprove all possible defenses to commission of an
offense before the officer can stop a person the officer sees committing the
offense. A peace officer may arrest without a warrant a person he sees
committing an offense in his presence.12 Officer Hill saw Appellant operate an
unlicensed motor vehicle in a public place. Texas law requires vehicles driven on
public roads to display two license plates.13 Officer Hill had probable cause to
arrest Appellant for the offense he observed Appellant commit.14 We overrule
Appellant’s third issue.
Jurisdiction of Trial Court
In his fourth issue, Appellant argues that the trial court lacked jurisdiction to
try his case “because the subject matter, territorial and personal jurisdiction of the
COURT has not been properly invoked.” He appears to argue that the
transportation code applies only to commercial transportation, that the State is
not the state, and that he has not been shown to be a person. If he has
additional argument, it is not intelligible to us. Nor does he cite any relevant
12
Tex. Code Crim. Proc. Ann. art. 14.01(b) (West 2015).
13
Tex. Transp. Code Ann. § 504.943(a) (West Supp. 2016).
14
See State v. Gray, 158 S.W.3d 465, 469–70 (Tex. Crim. App. 2005).
7
authority in support of what we perceive as his argument. We overrule
Appellant’s fourth issue.15
Judicial Notice of the Meaning of the Term “Transportation”
In his fifth issue, Appellant argues, “The COURT abused its discretion
when it denied Appellant’s request for judicial notice of adjudicative facts in
establishing on the record the definition of the term ‘transportation.’” Appellant
was convicted of DWLI. The definition of the term “transportation” is irrelevant to
any substantive issue. Appellant provided a proposed definition of
“transportation” that he insisted the trial court accept by taking judicial notice.
Appellant cites no relevant authority to support his argument. We overrule
Appellant’s fifth issue.16
Sufficiency of the Information
In his sixth issue, Appellant challenges the sufficiency of the information
filed in this case because
[t]here is no allegation in the State’s Amended Information which
specific entity Appellant is alleged to be considering there are
multiple entities included in the meaning of the statutory term
“person” as defined by TC §541.001(4). [Record citation omitted.]
Appellant argues that this purported error is fundamental.
In the trial court, he filed a motion to quash the information. After raising
many challenges in the motion that he raises on appeal concerning the meaning
15
See Marzett, 2015 WL 3451960, at *5.
16
See id. at *4–5.
8
of person, jurisdiction of the court, and fraudulence of the supporting affidavit,
Appellant summarized his argument:
The arguments in this brief [sic] show that this information
never should have been filed. Defendant’s license expired over four
years prior to this seizure. Any competent investigation would have
revealed this fact. The DISTRICT ATTORNEY knows or should
know that there is no lawful authority to suspend, revoke or cancel a
license that has expired. The primary responsibility of the DISTRICT
ATTORNEY’s office is “justice” not a conviction. Filing of this
information and complaint by the DISTRICT ATTORNEY is really the
criminal act. The DISTRICT ATTORNEY’s office and Bolding had
no reason to believe that the allegations in the complaint and
information was true. This was not an attempt to get justice. This is
attempt to get a conviction at any cost, including filing a fraudulent
affidavit. DENTON COUNTY is relying on an incorrect interpretation
of this code.
In his seventh issue, Appellant contends that the “information in the instant
case does not allege all the elements of an offense under [section 521.457] that
are necessary to be proved and is therefore void.” He particularly asserts that
the elements of DWLI include “transportation activity” and “statutory ‘person.’”
We have endeavored to divine these two complaints before this court and
any related complaint raised in the trial court. As we understand Appellant’s
arguments, we hold that the trial court did not reversibly err by denying his
motion to quash the information, nor is the information fundamentally defective, if
this is an argument that he raises. Appellant had adequate notice to prepare his
defense.17 He does not complain that he was denied adequate discovery.
Rather, he appears to have a fundamental disagreement with Texas courts’
17
See Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986).
9
interpretation of our laws and the language of our laws. The information provides
sufficient notice to Appellant of the charges against him and sufficiently alleges
the elements of the offense charged.18 We overrule Appellant’s sixth and
seventh issues.
Constitutionality of Statute
In his eighth issue, Appellant challenges the trial court’s holding that the
“application of the TC [transportation code] to appellant’s private travel was not
unconstitutional ‘as applied.’” We set out his argument in its entirety,
When reviewing an attack upon the constitutionality of a
statute, we begin with the presumption that the statute is valid and
the legislature has not acted unreasonably or arbitrarily. The party
challenging the constitutionality of a statute bears the burden of
establishing that it is unconstitutional. It is a basic principle of due
process that a statute is void for vagueness if its prohibitions are not
clearly defined. Due process requires criminal laws to be defined so
that (1) fair notice is given to ordinary persons as to what conduct is
forbidden; and (2) definite standards are established to prevent
arbitrary and discriminatory enforcement by police, judges, and
juries.
Appellant has challenged and continues to challenge the
constitutionality of the TC, “as applied” to appellant. In this case the
PROSECUTOR is attempting to apply provisions of the TC to activity
that is not expressed in the title of the act. This violates the Tex.
Const., Art. III §35. “Transportation” is the expressed subject matter
of the TC. This code cannot be applied to any activity outside the
expressed subject matter of “transportation.” This complaint
contains no specific allegation that appellant was transporting or
drawing persons or property on a public highway of a TC “state.”
Any attempt to apply this code to activity not expressed in the title of
the bill is an “as applied” violation of the Const. of Texas, Art. III.,
§35. [Citations and footnote omitted.]
18
See Duron v. State, 956 S.W.2d 547, 550–51 (Tex. Crim. App. 1997).
10
We deduce that Appellant’s complaint is founded in his convictions that the
transportation code must be interpreted as applying to commercial activities and
that the words used to define the statute he complains of must be defined as he
has defined them. Additionally, he appears to insist that he must voluntarily
submit to the authority of the statute. If we have correctly gleaned Appellant’s
arguments, they are not supported by relevant authority.19 We overrule
Appellant’s eighth issue.
Officer Hill’s Use of Technical Terms
In his ninth and tenth issues, Appellant argues that the trial court “erred as
a matter of law and abused its discretion by admitting the testimony of Hill’s use
of technical terms” and by not striking his testimony. Although Appellant does
not specify in his brief the objectionable terms he complains of, the record shows
that at trial he complained of Officer Hill’s use of terms such as “vehicle,”
“operator,” “motor vehicle,” and “driver.” The State points out that
[t]hese two issues were litigated by Appellant in his previous DWLI
case. The Dallas court overruled his points, noting that he had failed
to cite relevant authorities to support his definitions of the specified
terms. It also held that the trial judge was the sole judge of the
witnesses’ credibility and was free to accept or reject any evidence
presented by either side. [Citations omitted.]
Similarly, Appellant relies on cases and arguments dealing with
legislatively defined legal concepts and standards. Appellant has failed to
19
See Marzett, 2015 WL 3451960, at *1, *4.
11
support his argument with relevant authorities. We overrule Appellant’s ninth and
tenth issues.20
Constitutionality of Transportation Code
In his twelfth issue, Appellant challenges the constitutionality of the
transportation code. He argues that the Sovereign People cannot be held to
answer to an ambiguous law. He contends that the transportation code is
unconstitutionally vague because the “COURT” and the “STATE OF TEXAS”
have refused to provide a definition for the term “transportation” and have
refused to notice the definitions of the terms “transportation” and “travel” provided
by Appellant. But Appellant provides no relevant authority to support this
argument. We overrule Appellant’s twelfth issue.21
Double Jeopardy
In his thirteenth and final issue, Appellant argues that his conviction
constitutes double jeopardy because he was acquitted of an included offense,
failure to exhibit a license, in the Municipal Court of Frisco, Texas. The Double
Jeopardy Clause of the Fifth Amendment of the United States Constitution
provides that no person shall be subjected to twice having life or limb in jeopardy
for the same offense.22 Generally, this clause protects against (1) a second
20
See id. at *6.
21
See id. at *4.
22
U.S. Const. amend. V.
12
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.23
When the two prosecutions are for distinct statutory provisions, both an
“elements” analysis and a “units” analysis should be conducted to determine
whether they are for the same offense.24 An elements analysis asks whether one
statute “requires proof of a fact” which the other does not.25 If the elements
differ, then the second prosecution presumptively is not jeopardy-barred because
it is not for the same offense.26
Appellant argues that his prosecution and acquittal for failure to display a
license from the same incident bars prosecution of the DWLI case now before
this court. A Blockburger analysis resolves this question and shows that the two
prosecutions are not for the same offense. Section 521.025 requires a driver to
have the appropriate license in his possession while driving and to display it on
the demand of a peace officer.27 The only element DWLI, governed by section
23
Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); Ex parte
Cavazos, 203 S.W.3d 333, 336 (Tex. Crim. App. 2006).
24
Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015).
25
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182
(1932).
26
Id.
27
Tex. Transp. Code Ann. § 521.025(a) (West 2013).
13
521.457, and failure to display a license have in common is operating a vehicle.28
To prove either of the offenses involves proof of a number of facts that the other
does not—for example, DWLI does not require proof that the defendant failed to
display his license.29 Appellant has done nothing to demonstrate contrary
legislative intent.30 We consequently hold that the prosecution and conviction of
Appellant in this case did not violate his rights to be free from double jeopardy.
We overrule Appellant’s thirteenth issue.
Conclusion
Having overruled Appellant’s thirteen issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 29, 2016
28
Compare id. § 521.025(a)(1), with id. § 521.457(a)–(b).
29
Compare id. § 521.025(a)(1), with id. § 521.457(a)–(b).
30
See Benson, 459 S.W.3d at 72 n.18.
14