Chapman v. State, 01-92-00175-CR

• Decision Date: 08 July 1993
• Docket Number: No. 01-92-00175-CR,01-92-00175-CR
• Citation: 859 S.W.2d 509
• Parties: Larry Ray CHAPMAN, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 509

859 S.W.2d 509

Larry Ray CHAPMAN, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-00175-CR.

Court of Appeals of Texas Houston (1st Dist.).

July 8, 1993.

Rehearing Denied Aug. 31, 1993.

Loren A. Detamore, Houston, for appellant.

John B. Holmes, Ernest Davila, Houston, for appellee.

Before O'CONNOR, HEDGES and DUGGAN, JJ.

OPINION

DUGGAN, Justice.

A jury found appellant, Larry Ray Chapman, guilty of the offense of unauthorized use of a motor vehicle. Appellant pled true to two prior felony convictions, and the jury assessed his punishment at 60-years confinement. Appellant asserts 10 points of error on appeal. We affirm.

Fact Summary

While driving near his home, appellant was stopped by two Houston Police Department officers because his rear license plate was not visible. When they approached the car, the officers noticed the rear vent window was broken, the steering column was broken, and a screwdriver was lying on the front seat. When asked for identification, appellant gave the officers a driver's license with someone else's picture on it. He claimed the owner of the license, Johnny Evans, was his cousin, and the car belonged to him. The officers took appellant to a relative's house, where a relative identified him. When the officers could not contact Evans by telephone, they arrested appellant for suspicion of auto theft. The car was registered to someone else, Lincoln Murphy.

1. Assignment of a visiting judge

In point of error one, appellant argues the trial judge, the Honorable Jimmy James, was not properly assigned to act as the presiding judge of the 262nd District Court of Harris County, Texas, pursuant to TEX.GOV'T CODE ANN. § 74.056 (Vernon 1988).

Appellant argues the presiding judge was required to appoint a visiting judge for a certain number of days, and the appointment for an indefinite period violates the Texas Constitution. He contends the failure of the appointment to specify the period of the appointment rendered the assignment invalid.

The assignment of Judge James, which was on a fill-in-the-blank form, reads in part as follows:

Pursuant to Section 74.056, Tex.Govt. Code, I hereby assign the Honorable Jimmy James Former Judge of the 248th District Court To the 262nd District Court of Harris County, Texas.

This assignment is for the period ____ , beginning the 6th day of January, 1992, provided that this assignment shall continue after the specified period as may be necessary for the assigned Judge to complete trial of any case begun during the period, and to pass on motions for new trial and all other matters growing out of cases tried by the Judge herein assigned during this period.

The form was intended to specify an assignment for a period of a certain number of days. The administrative judge marked through the words "of ____ days", so that the appointment was for an indefinite term that began on January 6, 1992.

Appellant did not object to the assignment of Judge James for this or any other reason. Had he objected, he could have had Judge James, a visiting judge, automatically recused by filing an objection under TEX.GOV'T CODE ANN. § 74.053(d) (Vernon Supp.1993).

Appellant argues that no objection was necessary because the error is of constitutional dimension in that a defective order of assignment is no assignment at all. We disagree. In Walker v. State, 823 S.W.2d 302, 305 (Tex.App.--Tyler), aff'd, 823 S.W.2d 247 (Tex.Crim.App.1991), the record contained no assignment of the visiting judge; the court nevertheless held the defendant waived his right to complain about the assignment.

We find appellant waived any error in the appointment of Judge James.

We overrule point of error one.

2. Prior convictions

In point of error two, appellant argues the trial court erred in admitting evidence of prior convictions where the probative value did not outweigh the danger of unfair prejudice.

Appellant concedes he did not object during the prosecutor's cross-examination asking about his prior convictions. A defendant who does not timely object during trial to the admission of evidence during trial waives error in the admission. Little v. State, 758 S.W.2d 551, 563 (Tex.Crim.App.1988); see also TEX.R.APP.P. 52(a).

Appellant refers us to Montgomery v. State, 810 S.W.2d 372, 388-89 (Tex.Crim.App.1990), to support his argument that it was the duty of the trial court to make a determination if the prejudicial effect of extraneous offenses substantially outweighed the probative value. Montgomery, however, also states "when a party attempts to adduce evidence of 'other crimes, wrongs or acts,' in order to preserve error on appeal, the opponent of that evidence must object in a timely fashion." Id. at 387.

Appellant asserts it would have been futile, and thus unnecessary, to object because the claim was novel at the time of trial. In Black v. State, 816 S.W.2d 350, 368 (Tex.Crim.App.1991), the Court of Criminal Appeals held:

[T]he Texas "right not recognized" exception excuses a failure to contemporaneously object when either; [sic] the claim was so novel that the basis of the claim was not reasonably available at the time of trial, or, the law was so well settled by this Court that an objection at that time would have been futile.

The Rules of Criminal Evidence became effective on September 1, 1986. A claim under TEX.R.CRIM.EVID. 609, which governs the admissibility of prior conviction impeachment evidence, could not be considered a "novel" claim when this case was tried in 1992.

We need not address the appropriateness of the testimony of prior convictions, because appellant did not meet the first requirement for the appeal--preservation of error.

We overrule point of error two.

3. Remote convictions

In point of error three, appellant argues the trial court erred in admitting evidence relating to his having been convicted of an offense committed more than 10 years before the trial.

Appellant asserts he preserved error by making a motion in limine. A ruling on a motion in limine does not preserve error. Romo v. State, 577 S.W.2d 251, 252 (Tex.Crim.App.1979); Rogers v. State, 795 S.W.2d 300, 307 (Tex.App.--Houston [1st Dist.] 1990, pet. ref'd). Even though a trial court grants a motion in limine, a defendant must make an objection to evidence on proper grounds at trial to preserve error for appellate review. Goss v. State, 826 S.W.2d 162, 168 (Tex.Crim.App.1992). As with point of error two, appellant did not object and waived any error.

We overrule point of error three.

4. Error in the charge

In point of error four, appellant asserts the trial court erred in failing "to include a charge including the contents of The Texas Code of Criminal Procedure, article 38.23."

The charge appellant now complains the trial court did not include is not the charge he requested at trial. During the charge conference, appellant's counsel and the trial court had the following exchange:

Defense: Thirdly, I would request a special instruction under 38.23 of the Texas Code of Criminal Procedure which runs to the stop of the vehicle. The initial stop, which lead up to the officer's discovery and observations of evidence that's been presented.

Court: Do you want to dictate in way of a charge? I will listen.

Defense: I request the following charge be given to the jury. "If you find from the evidence presented that the stop of the vehicle in which defendant was driving on or about November 1, 1991, was done so without reasonable suspicion that criminal activity had occurred, then you will find, you can find that the evidence obtained as a result of that stop is inadmissible as evidence against the defendant in the guilt or innocence, in determining his guilt or innocence. And you may choose not to use such evidence in your deliberations in making your determination as to the guilt or innocence of the defendant." That would be my charge, something similar.

Court: No, no. It is or it isn't.

Defense: I want a charge on 38.23.

Court: That charge you have just dictated is denied.

Defense: Judge, for the purposes of the appellate record can I just--I don't have that written down.

Court: This will be given the same force and effect as I'm concerned as if it were written down and there were a written rejection.

(Emphasis added.)

Appellant's counsel requested an erroneous variant of an article 38.23 ¹ instruction. He clearly stated the "special instruction under [art.] 38.23 of the Texas Code of Criminal Procedure" that he wanted ("I request the following charge be given to the jury."). Appellant's requested charge would have erroneously instructed the jury that, at their option, they "may choose not to use such evidence [obtained from an arrest made without reasonable suspicion that criminal activity had occurred] in [their] deliberations." The trial judge correctly responded, "No, no. It is or it isn't [usable in deliberations]."

Although appellant's counsel said at one point, "I want a charge on article 38.23," these words were buried in the discussion of the incorrect charge he dictated. Merely stating, "I want a charge on article 38.23" is not sufficient. TEX.CODE CRIM.P.ANN. art. 36.15 (Vernon Supp.1993). The trial judge correctly ruled, "That charge you have just dictated is denied." When appellant's attorney responded, "I don't have that written down," the judge cooperatively allowed the dictated but refused request "the same force and effect as if it were written down and there were a written rejection." Appellant cannot dictate an incorrect variant of an article 38.23 charge and later insist that "that charge" was a request for a charge under article 38.23.

Appellant's fourth point of error is overruled.

5. Mistake of fact

In point of error five, appellant argues the trial court incorrectly instructed the jury in the application paragraph of the charge that they should convict appellant if he did not have the consent of the complainant to operate the automobile.

Appellant...