Cover v. State

• Decision Date: 30 June 1995
• Docket Number: No. 12-93-00323-CR,12-93-00323-CR
• Citation: 913 S.W.2d 611
• Parties: Leo Wayne COVER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 611

913 S.W.2d 611

Leo Wayne COVER, Appellant, v. The STATE of Texas, Appellee.

No. 12-93-00323-CR.

Court of Appeals of Texas Tyler.

June 30, 1995.

Discretionary Review Denied Nov. 22, 1995.

Leo Wayne Cover, for appellant.

Charles Mitchell, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HOLCOMB, Justice.

A jury found Appellant guilty of retaliation and assessed his punishment at 25 years in prison. Filing a pro se brief on appeal Appellant assigns 13 points of error. We will affirm.

At the time of trial, Appellant was an inmate at the Texas Department of Criminal Justice-Institutional Division ("TDCJ-ID") serving a 50 year sentence as a result of a conviction for aggravated robbery. The complainant and principal witness against Appellant regarding Appellant's conviction for aggravated robbery was Ray Alexander ("Alexander"). After Appellant's conviction, Appellant wrote a letter to Alexander asking him to recant his testimony in an effort to secure Appellant's release from prison. This letter formed the basis of Appellant's subsequent prosecution for retaliation.

In his first point of error, Appellant claims that the District Attorney, Charles Mitchell, vindictively prosecuted him for retaliation. Appellant contends that the retaliation charges were filed against him because he filed post-trial writs of habeas corpus proceedings alleging that Charles Mitchell had condoned the testimony of Alexander, which Appellant alleges was perjured. The State stipulated that the indictment against Appellant for retaliation was returned by the grand jury after Appellant's third application for writ of habeas corpus was filed.

Appellant cites numerous cases in support of his position which we have determined are distinguishable from the facts of this case. For instance, Appellant cites Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In Blackledge, a North Carolina prison inmate had an altercation with another prisoner and was convicted in State District Court of the misdemeanor offense of assault with a deadly weapon. While the defendant's appeal was pending de novo in Superior Court, the prosecutor obtained a felony indictment against the defendant for assault with a deadly weapon, which was based upon the same incident that was the basis of the defendant's misdemeanor conviction. The Supreme Court held that the defendant's indictment on the felony charge violated the DUE PROCESS CLAUSE. The Court reasoned that a person convicted of a misdemeanor is entitled to a trial de novo without apprehension that the State will retaliate and substitute a more serious charge, thereby subjecting the person to an increased period of incarceration. Because the State had originally chosen to proceed against the defendant with a misdemeanor charge, the State was precluded from pursuing a more serious felony charge against the defendant. All of the cases cited by Appellant involve the State's attempts to prosecute a defendant for the same offense rather than the State's attempt to prosecute a defendant for a totally separate offense or set of facts as we have here.

We have also reviewed the opinion issued by the Court of Criminal Appeals regarding the writ of habeas corpus proceedings that were conducted when Appellant was found guilty of aggravated robbery. Nothing in those proceedings indicates that Charles Mitchell, as the prosecuting attorney, sponsored perjured testimony. The evidence does show that the victim of the retaliatory letter, Alexander, and the Sheriff of Sabine County, were the people responsible for pursuing retaliation charges against Appellant rather than Charles Mitchell. It is incumbent upon Appellant to prove his allegations of vindictive prosecution. Ex parte Bates, 640 S.W.2d 894, 895 (Tex.Cr.App.1982). The premise upon which Appellant bases his claim of vindictive prosecution is without any factual support in the record. Appellant's first point is overruled.

In his second point, Appellant argues that the court lacked jurisdiction to convict him because the TEXAS PENAL CODE is void. Appellant points out that in 1973, the State Legislature enacted Senate Bill 34, Act 63, legislative chapter 399, which became effective January 1, 1974. Appellant claims that this bill violated Article 3, section 35 of the TEXAS CONSTITUTION because it contained more than one subject; therefore, Appellant contends that the bill was void at its inception. He maintains that Article 3, section 35 of the TEXAS CONSTITUTION, prohibits "log-rolling." "Log-rolling" occurs when several subjects are included within one bill that have no connection to each other. Appellant argues that any bill which violates the "one subject" rule is void at its inception. We do not agree.

The TEXAS PENAL CODE was enacted by the legislature with the intent that it would be construed as a systematic whole, and it should be interpreted in light of that legislative purpose. Day v. State, 534 S.W.2d 681, 683 (Tex.Cr.App.1976). The TEXAS PENAL CODE does address various subject matters, but that does not necessarily mean that the TEXAS PENAL CODE is unconstitutionally multifarious. In referring to the ELECTION CODE, the Supreme Court of Texas has observed, "[S]ince the Legislature undoubtedly has as much power to enact a Code as it does a single law of narrowest scope, and since any sort of 'Code' necessarily involves many different kinds of individual provisions, nothing of these latter will violate the 'one subject' restriction, if it has any logical relationship to the general subject." Ex parte Jimenez, 159 Tex. 183, 317 S.W.2d 189, 190 (1958). In light of the Supreme Court's reasoning in Jimenez, we decline to hold that the PENAL CODE is unconstitutional. Appellant's point two is overruled.

In point three, Appellant claims that his conviction was void because the Grand Jury returned an indictment against him that contained an enhancement. Appellant did not file a motion to quash or make any other objection to the enhancement paragraphs in the indictment before or during trial. Under TEXAS RULES OF APPELLATE PROCEDURE 52(a), Appellant's error is waived. TEX.R.APP.P. 52(a). However, we will address this issue because this is a pro se appeal.

Appellant supports his contention by quoting Articles 20.09 and 21.01 of the TEXAS CODE OF CRIMINAL PROCEDURE and Section 12.42(d) of the TEXAS PENAL CODE. Article 20.09 of the TEXAS CODE OF CRIMINAL PROCEDURE provides that, "The Grand Jury shall inquire into all offenses liable to indictment." TEX.CODE CRIM.PROC.ANN. art. 20.09 (Vernon 1989). Article 21.01 provides that "An indictment is the written statement of the Grand Jury accusing a person therein named of some act or omission by which law is declared to be an offense." TEX.CODE CRIM.PROC.ANN. art. 21.01 (Vernon 1989). Section 12.42(d) of the TEXAS PENAL CODE provides that the enhancement of offenses are not "offenses." TEX.PENAL CODE ANN. § 12.42(d) (Vernon 1994). Appellant reasons that if enhancements are included in an indictment, the indictment is void because the enhancement was not an "offense" that was returned by the Grand Jury. We do not agree.

To use a prior conviction against a defendant in connection with the primary offense in Texas, the prior conviction must be alleged in the indictment. Rogers v. State, 168 Tex.Crim. 306, 325 S.W.2d 697, 699 (App.1959). This Rule was modified by the enactment of Article 37.07, the TEXAS CODE OF CRIMINAL PROCEDURE, in 1965, which allowed prior convictions only to be admitted at the punishment phase of the trial. Only those prior convictions alleged in the indictment can be used for enhancement of punishment. White v. State, 500 S.W.2d 529, 530 (Tex.Cr.App.1973). The source of an indictment is the Grand Jury; therefore, it follows that an allegation of prior offenses must be contained in an indictment so that the prior offenses can be proven at trial for enhancement of the sentence. Appellant's point three is overruled.

In his fourth point, Appellant contends that the trial court was without jurisdiction to try his case in state court until the federal court had ruled on his pre-trial motion to remove his case to federal court. Section 1446(c)(3) of 28 U.S.C.A., which governs the removal of criminal prosecution from state court to federal court, provides:

The filing of a notice of removal of a criminal prosecution shall not prevent the State Court in which such prosecution is pending from proceeding further, except a judgment of conviction shall not be entered unless the prosecution is first remanded.

Here, the record reflects that the federal court remanded Appellant's request for removal on December 3, 1993, and judgment was not entered in the present case until December 7, 1993. Therefore, Appellant's fourth point is without merit and is overruled.

In his fifth point, Appellant complains that he did not receive a fair and impartial verdict from the jury because a number of the jurors knew the complainant, Ray Alexander. The record reflects that Alexander was the owner of the El Torro Restaurant in Hemphill, Texas. At trial, many of the jurors admitted they knew Alexander, and some of the jurors had taught Alexander's children in school. Appellant contends the court should have presumed that these jurors were biased against him and should have taken each juror on voir dire to determine if the jurors could render an impartial verdict. A reading of the record shows that all of Appellant's challenges for cause were granted and that Appellant's voir dire of the jury panel was not restricted in any way. Appellant made no objection to the venire, nor did he make any objection to any individual juror who was seated on the panel. To preserve error on appeal, Appellant must have made an objection contemporaneous to the action or inaction of the trial court. Montoya v. State, 744 S.W.2d 15, 18 (Tex.Cr.App.1987), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101...