Azeez v. State

• Decision Date: 29 August 2006
• Docket Number: No. 14-05-00539-CR.,14-05-00539-CR.
• Parties: SHERIFF K. AZEEZ, Appellant v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

203 S.W.3d 456

SHERIFF K. AZEEZ, Appellant v. THE STATE OF TEXAS, Appellee.

No. 14-05-00539-CR.

Court of Appeals of Texas, Fourteenth District, Houston.

Opinion filed August 29, 2006.

Panel consists of Justices ANDERSON, EDELMAN, and FROST.

OPINION

JOHN S. ANDERSON, Justice

A jury convicted appellant for failure to appear for trial for a charge pending in municipal court and assessed punishment at a $400 fine. Appellant appealed his conviction in seven issues to the County Criminal Court at Law No. 12, and that court affirmed the judgment of the trial court. Appellant now appeals the same seven issues to this court, and we also affirm but for reasons different from those relied upon by the County Criminal Court.

FACTUAL BACKGROUND

On June 19, 2003, police issued appellant a citation for speeding on the I-45 freeway in Houston, Texas. The citation included a written promise, indicated by appellant's signature, that he would appear in Municipal Court Number 15 on July 21, 2003 unless he made a prior payment for the violation. On July 21, the deputy clerk filed a certificate of defendant's failure to appear, verifying appellant did not appear as required by his citation. On the same day, the municipal court judge issued a warrant for appellant's arrest.

Appellant's cause for failure to appear was tried to a jury. The State presented two witnesses, Houston police officer Alejandro Maciel and Beverly Jones. Officer Maciel testified he issued appellant the citation and appellant signed it. Jones testified she is a municipal court supervisor and is the custodian of records for the court. Appellant presented no witnesses. After deliberating for ten minutes, the jury returned a verdict of guilty and assessed punishment at a $ 400 fine.

DISCUSSION

Appellant first asserts three issues concerning the motion to quash the complaint. Next, appellant makes two evidentiary complaints regarding State's exhibits one, two, and three. Finally, appellant complains the trial court erred in denying his motion for an instructed verdict and in sustaining the State's objections to his closing argument.

I. Complaint

Issues one, two, and three concern the complaint. Appellant contends the court erred in denying the motion to quash because (1) it was unclear from the complaint under which statute appellant was charged, (2) he cannot be charged under the Penal Code when there is a more specific offense for failure to appear for traffic offenses under the Transportation Code, and (3) the city ordinance is preempted by State law. In appellant's points of error, he asserts he was denied due process and was denied the right to know with what offense he was charged in order to prepare his defense. We address appellant's issues regarding the complaint as a group, and we overrule those issues because the complaint gave appellant sufficient notice of the charged offense. As we discuss herein, the charge in the complaint was clear, the Transportation Code includes all enumerated elements, and a charge for failure to appear under the Penal Code and the same charge under the Transportation Code are not irreconcilably in conflict. We need not specifically address appellant's third issue because the face of the complaint does not charge appellant under the city ordinance.

A. Standard of Review

We review the decision to grant a motion to quash under an abuse of discretion standard. See Thompson v. State, 44 S.W.3d 171, 174 (Tex. App.CHouston [14th Dist.] 2001, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules and principles, or acts arbitrarily or unreasonably. Id. A motion to quash should be granted only when the language concerning the defendant's conduct is so vague or indefinite as to deny him effective notice of the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988).

To survive a timely motion to quash, the complaint must, on its face, contain allegations of the facts necessary to show the offense was committed, to bar subsequent prosecution for the same offense, and to give the defendant notice of the precise offense with which he is charged. Crum v. State, 946 S.W.2d 349, 359 (Tex. App.CHouston [14th Dist.] 1997, pet. ref'd) (analyzing a motion to quash an indictment). Upon review, we must first determine if the notice given is sufficient. Id. If it is, the inquiry ends; if not, we must examine the record to determine the impact of the deficiency on appellant's defense. Id.

The complaint at issue recites the following:

Failure to Appear (Custody)

In the name and by the authority of the State of Texas:

I, the undersigned affiant, do solemnly swear that I have good reason to believe, and do believe that Azeez, Sheriff K, hereinafter called Defendant, heretofore, on or about the 21st, [sic] day of July A.D., 2003, and before making and filing of this complaint, within the incorporated limits of the City of Houston, County of Harris and State of Texas, did then and there unlawfully and knowingly fail to appear in Municipal Court Number 15 of the City of Houston, Texas at 6:00 PM in accordance with the terms of his release after having been lawfully released from custody on condition that he subsequently appear in said court.

Against the peace and dignity of the State:

Affiant:

Subscribed and sworn before me by affiant this date: July 21, 2003:

Signed by Deputy Clerk, Municipal Court, Houston, Texas and Seal Affixed

A complaint is a sworn allegation charging the accused with the commission of an offense in justice and municipal courts. Tex. Code Crim. Proc. Ann. art. 45.018(a) (Vernon Supp. 2006). A complaint is sufficient if it (1) is in writing, (2) commences with "n the name and by the authority of the State of Texas," (3) states the name of the accused or a reasonably definite description of the accused, (4) shows the accused has committed an offense against the law of the state, (5) states the date of the offense, (6) bears the signature or mark of the affiant, and (7) concludes with the words, "Against the peace and dignity of the State," and if the defendant is charged with violation of a city ordinance, may also conclude with the words, "Contrary to the said ordinance." Tex. Code Crim. Proc. Ann. art. 45.019(a) (Vernon Supp. 2006). A complaint filed in municipal court must also allege the offense was committed in the territorial limits of the municipality, and be sworn to before the municipal judge, clerk or deputy clerk of the court, city secretary, or city attorney or deputy city attorney. TEX. CODE CRIM. PROC. ANN. art. 45.019(c), (e).

B. Appellant received sufficient notice of the charges alleged against him

Appellant first contends the trial court erred in denying the motion to quash because it is unclear from the complaint under which statute he was charged. Appellant argues he was actually charged under the Penal Code section 38.10 rather than City of Houston ordinance 16-47. Alternatively, appellant suggests he should have been charged under the Transportation Code. At trial, the prosecutor alleged appellant was charged under the city ordinance.

A crime must be alleged in the charging instrument with enough specificity and clarity that the defendant can identify the penal statute under which the State intends to prosecute. See Duron v. State, 956 S.W.2d 547, 550B51 (Tex. Crim. App. 1997); Motherwell v. State, No. 05-99-00649-CR, 2000 WL 1240005, at *2 (Tex. App.CDallas Aug. 31, 2000, no pet.) (not designated for publication) (applying the rules for indictments and informations to complaints). Appellant complains the State did not use enough specificity. The statutory requirements do not require the complaint to specifically identify the statute or ordinance with which the defendant is being charged. See generally TEX. CODE CRIM. PROC. ANN. art. 45.019. A charging instrument must, however, contain on its face every element of the offense that must be proven at trial. See Dinkins v. State, 894 S.W.2d 330, 338 (Tex. Crim. App. 1995); DeVaughn, 749 S.W.2d at 67; Thompson, 44 S.W.3d at 176B77. If the charging instrument is sufficient to put a defendant on notice and not deprive him of his ability to prepare his defense, then there is no harm. See Smith v. State, 873 S.W.2d 66, 72 (Tex. App.CTyler 1993, pet. ref'd).

1. The State charged appellant under the Transportation Code

Under Transportation Code section 543.009, a person may be charged with failure to appear for willfully violating a written promise to appear in court, as provided by the details in the remainder of the subchapter. See TEX. TRANSP. CODE ANN. § 543.009 (Vernon 1999); Berrett v. State, 152 S.W.3d 600, 606B07 (Tex. App.CHouston [1st Dist.] 2004, pet. ref'd) (outlining the arrest and charging procedures of chapter 543). The remainder of the subchapter provides that a person may be released from custody on condition that he promises in writing to appear in court at a later date. See TEX. TRANSP. CODE ANN. § 543.005 (Vernon Supp. 2005). This procedure is specifically required when the accused is charged with a speeding violation. See Tex. Transp. Code Ann. § 543.004 (Vernon Supp. 2005). The elements of the complaint require the State to prove appellant (1) knowingly failed to appear (2) in Municipal Court Number 15 (3) of the City of Houston, Texas (4) at 6:00 P.M. (5) in accordance with the terms of his release (6) on condition that he subsequently appear. With the exception of the mens rea element, the elements enumerated in the complaint are found in the Transportation Code.

The mens rea element in the complaint and the Transportation Code differ, but section 6.02 of the Penal Code resolves the issue. The complaint alleges knowing conduct, and the Transportation Code requires willful conduct. This difference serves as appellant's next argument in favor of the contention that he should have been charged under the Transportation Code. Appellant argues the Transportation...