Cruz v. State, No. 07-09-0076-CR (Tex. App. 6/10/2010)
| Decision Date | 10 June 2010 |
| Docket Number | No. 07-09-0076-CR.,07-09-0076-CR. |
| Parties | TERRILL E. CRUZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 100th District Court of Collingsworth County, No. 2719, Honorable Stuart Messer, Judge.
Panel C: Before QUINN, C.J., HANCOCK and PIRTLE, JJ.
DO NOT PUBLISH
Appellant, Terrill E. Cruz, was convicted by a jury of aggravated assault with a deadly weapon1 after which he was sentenced to twenty years confinement and fined ten thousand dollars. Appellant asserts the trial court erred by: (1) denying his motion for a continuance; (2) overruling his objection to the State's notice of its intent to introduce evidence of extraneous offenses as punishment evidence ("State's Notice") because the trial judge served as prosecuting attorney at the time the alleged offenses were committed; (3) forcing Appellant to request the jury assess his punishment because the trial court overruled his objection to the State's Notice; and (4) overruling his objection to the State's Notice when most of the offenses were arrests only and prosecution was barred by the applicable statutes of limitation. Appellant also asserts: (5) because the trial judge did not disqualify himself due to his prior service as a district attorney, the trial court lacked jurisdiction to hear the matter; (6) the trial court erred in admitting accomplice testimony when there was insufficient corroboration; (7) the trial court erred in admitting the written statement of an accomplice in the absence of sufficient corroboration; (8) the trial court erred in denying Appellant's motion for a directed verdict; (9) there was no credible evidence Appellant used or exhibited a deadly weapon; and (10) the evidence was legally and factually insufficient to support the jury's verdict. We affirm.
On July 30, 2008, a Collingsworth County Grand Jury presented an indictment charging that Appellant, on or about July 4, 2008, intentionally or knowingly threatened Clarence Antonio Owens with imminent bodily injury by shooting at Owens's residence with a deadly weapon, to-wit: an unknown caliber firearm. At trial, Collingsworth County Sheriff Joe Stuart testified that, on July 4, 2008, he was dispatched to 705 Dalhart Street in Dalhart, Texas. When he arrived, he observed the front storm door was shattered and there were bullet holes in the front of the residence. In his opinion, the bullet holes resulted from an unidentified firearm, possibly a 9-millimeter, being fired at the home. According to his testimony, the firearm used was a deadly weapon.2
Clarence Antonio Owens testified he lived at 705 Dalhart Street. On July 4, he was watching television when he heard what he thought were firecrackers outside. When he went to the front door, he saw a green pickup truck. Owens jumped into his car and followed the pickup. He identified the pickup as belonging to Appellant and then drove home. After returning home, he observed the same pickup pulling up to his house a second time and witnessed another shooting. His storm door was shattered and there were bullet holes in his house. He subsequently gave a statement to the police indicating he had seen Appellant drive by his house twice and he heard gunshots both times.
Lynda Ceballos, Owens's girlfriend, testified she was also at the house on July 4th when she heard what she thought were firecrackers outside the house. When she went to the front door, she observed smoke and Appellant's green pickup at the stop sign across from their house. While standing out by the mailbox, Ceballos could see Owens chasing the pickup and heard more shots. While she and Owens were trying to decide what action to take, Ceballos heard another shot and ran to the front door. She observed the same pickup driving by with Appellant hanging outside the passenger-side window firing at the house over the top of the pickup. She could not see who was driving the pickup. Shortly thereafter, she called the police.
Ceballos further testified that after Appellant was freed on bail he came over to Owens's house. After she told Appellant to leave, he told her he was sorry for shooting up the house and he admitted he had been drinking that night.
Rene Granados testified he was Appellant's friend. In the early morning hours of July 4, he and Appellant were at his house drinking beer. They left the house to cruise around and Appellant directed Granados to drive down Dalhart Street. While Appellant was sitting on the pickup's passenger window, Granados heard something like gunshots coming from the front of the pickup. Granados testified that he did not know Appellant was carrying a firearm and that after this event he went home and went to bed.
Granados also testified Appellant had approached him regarding his testimony before trial. Appellant told him he really didn't need to be in court and "[i]t would be in his best interest that if [he] was going to be [in court] today, he would try to eliminate me from being [in court] today." Granados testified Appellant told him he was a "key witness." Granados also testified he gave a written statement to the police wherein he stated that, as he and Appellant drove by Owens's house, Appellant "started unloading a pistol at Antonio's house."
Thereafter, the jury convicted Appellant of aggravated assault with a deadly weapon and sentenced him to twenty years confinement and assessed a ten thousand dollar fine. This appeal followed.
Under the Texas Code of Criminal Procedure, criminal actions may be continued "upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 2006). Motions to continue rest within the trial court's discretion; Gallo v. State, 239 S.W.3d 757, 764 (Tex.Crim.App. 2007), and, on appeal, a defendant must demonstrate that his defense was "actually prejudiced" by the court's ruling. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997) (citing Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App. 1995)).
Appellant filed a motion to continue a December 29th trial date. In his motion, he asserted trial of his case during the Christmas-New Year's holiday season would cause him prejudice because jurors would be "greatly inconvenienced, will not want to serve during that holiday period, and will be likely to hold Defendant responsible for such inconvenience." Appellant's claimed error must fail because his motion is premised on unsubstantiated assumptions and shows no actual prejudice.3 Accordingly, the trial court did not abuse its discretion by denying Appellant's motion for continuance. Appellant's first point of error is overruled.
In points of error two, three, and four, Appellant asserts the trial court erred by overruling his objection to the State's Notice of Intent to Introduce Evidence of Extraneous Offenses, Punishment Evidence and/or Prior Conviction Information filed December 19, 2008 ("State's Notice"). Appellant contends that during a pretrial hearing the trial court denied his objection to the State's Notice. A review of the record belies this contention. What the record does reflect is that the court agreed with Appellant's objection as to the guilt/innocence phase of the trial and then cautioned the prosecutor to approach the bench prior to the introduction of any such evidence during the punishment phase.
Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of error, and states, in relevant part:
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
* * *
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Here, the record shows that Appellant never obtained an adverse ruling to his objection. Whether a particular complaint is preserved for appeal depends on whether the complaining party clearly conveyed to the trial judge the particular complaint, including the precise and proper application of the law as well as the underlying rationale, and obtained a ruling on that complaint. See Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009). Because the trial court never denied Appellant's objection, points of error two through four present nothing for review and are, therefore, overruled.
While we do not so find, to the extent that it might be argued that the trial court implicitly overruled Appellant's objection to the State's Notice during the pretrial hearing by cautioning the prosecution to approach the bench prior to tendering such evidence, any such ruling would be nothing more than a preliminary evidentiary ruling that preserves nothing for appeal. Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003) (summarize holding); Harnett v. State, 38 S.W.3d 650, 655 (Tex.App.-Austin 2000, pet ref'd).
By his fifth point of error, Appellant contends that, because the trial judge was disqualified on constitutional and statutory grounds, the trial court lacked jurisdiction over Appellant's case. Appellant asserts the trial judge should have been disqualified because he served as the District Attorney for the 100th District at the time when Appellant's prior arrests, the subject of the State's Notice of Intent to Introduce Evidence of Extraneous Offenses, occurred. As a result, he asserts the trial court lacked jurisdiction to hear his case.
The applicable statute provides that "[n]o Judge . . . shall sit in any case . . . where he has been of counsel for the...
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