Missick v. State, No. 14-03-01412-CR (TX 7/12/2005)
| Decision Date | 12 July 2005 |
| Docket Number | No. 14-03-01413-CR.,No. 14-03-01412-CR.,14-03-01412-CR.,14-03-01413-CR. |
| Parties | PHILLIP A. MISSICK, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Supreme Court of Texas |
On Appeal from the County Court at Law, Walker County, Texas, Trial Court Cause Nos. 01-610 & 01-611.
Affirmed.
Panel consists of Justices ANDERSON, HUDSON, and FROST.
Appellant, Phillip A. Missick, challenges his convictions for resisting arrest and criminal trespass, raising twelve issues on appeal. With respect to his conviction for resisting arrest, appellant argues (1) the complaint is fatally defective; (2) the information is fatally defective because it is allegedly based on a fatally defective complaint; (3) jury charge error; (4) the judgment is void because it is allegedly based on a fundamentally defective information; (5) the evidence is legally and factually insufficient to sustain his conviction; and (6) appellant's trial counsel rendered ineffective assistance of counsel. With respect to his conviction for criminal trespass, appellant argues (7)-(9) the complaint is fatally defective; (10) the information is fatally defective because it is allegedly based on a fatally defective complaint; (11) the judgment is void because it is allegedly based on a fatally defective information; and (12) appellant's trial counsel rendered ineffective assistance of counsel. We affirm.
Appellant was arrested on March 5, 2001, while participating in a pro-life demonstration on the campus of Sam Houston State University in Huntsville, Texas. Frank Parker, Dean of Students, asked appellant several times to move the demonstration to the free speech area of the university or to leave the campus. Appellant refused to move. Officer William Farmer of the Sam Houston State University Police Department asked appellant to leave campus and told appellant he would be arrested if he refused. Appellant again refused to leave, and Officer Farmer placed appellant under arrest for criminal trespass. Officer Farmer grabbed one of appellant's arms to handcuff him, and appellant jerked away. Officer Farmer advised appellant that he was under arrest for criminal trespass and grabbed his arm again. Appellant pushed Officer Farmer in the chest and pulled his arm away. Officer Farmer advised appellant he was resisting arrest, but appellant kept jerking his arm away each time Officer Farmer tried to handcuff him. Finally, Officer Farmer placed appellant in a headlock and handcuffed him.
Appellant was charged by information with criminal trespass and resisting arrest. See TEX. PEN. CODE ANN. § 30.05 (Vernon Supp. 2004-2005), § 38.03 (Vernon 2003). He pleaded not guilty to both offenses. Appellant was tried on both charges together. The jury found appellant guilty of both offenses as charged in the information. The trial court assessed punishment at 180 days in the Walker County Jail for each offense, with the sentences to run concurrently. The sentences were suspended, and appellant was placed on probation for two years. The trial court also assessed an $800 fine for the criminal trespass conviction.
In his first issue, appellant contends that because the complaint charging him with resisting arrest alleges an additional culpable mental state, it is fatally defective because it does not charge appellant with an offense as defined by Texas law. In his second issue, appellant argues the information charging him with resisting arrest is fatally defective because the complaint upon which it is based is fatally defective.
A person is guilty of resisting arrest if that person intentionally prevents or obstructs a person he knows is a peace officer from effecting an arrest of that person by using force against the peace officer. TEX. PEN. CODE ANN. § 38.03(a). The complaint and information in this case charge the culpable mental state as "intentionally and knowingly" instead of just "intentionally" as prescribed by the statute. See id.
A complaint is an affidavit made before a magistrate or district or county attorney that charges the commission of the offense. TEX. CODE CRIM. PROC. ANN. art. 15.04 (Vernon 2005). Among other requirements, a complaint must show that the accused has committed an offense under Texas law. TEX. CODE CRIM. PROC. ANN. art. 15.05(2) (Vernon 2005). An information is a written statement filed and presented on behalf of the State by a district or county attorney, charging the defendant with an offense. TEX. CODE CRIM. PROC. ANN. art. 21.20 (Vernon 1989). An information must be accompanied by a complaint charging the defendant with an offense. See TEX. CODE CRIM. PROC. ANN. art. 21.22 (Vernon 1989).
In his first issue, appellant argues the complaint underlying the information is fatally defective because it charges an additional culpable mental state. Appellant raises this issue for the first time on appeal. A defect in a complaint underlying an information must be raised before trial pursuant to article 27.03(1) of the Texas Code of Criminal Procedure. Aguilar v. State, 846 S.W.2d 318, 320 (Tex. Crim. App. 1993); see TEX. CODE CRIM. PROC. ANN. art. 27.03(1) (Vernon 1989) (). Even if the complaint underlying the information is invalid, appellant cannot raise this issue for the first time on appeal. See Aguilar, 846 S.W.2d at 320. Accordingly, we overrule appellant's first issue.
In his second issue, appellant argues the information charging him with resisting arrest is fatally defective because the complaint upon which it is based is fatally defective. Appellant raises this issue for the first time on appeal. Because appellant did not object to the information prior to trial, he waived any contention that the information was defective for the reason it was based upon a defective underlying complaint. See Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003). Therefore, we overrule appellant's second issue.
In his seventh, eighth, and ninth issues, appellant contends that because the complaint charging him with criminal trespass alleges the culpable mental state in the disjunctive, it is fatally defective because, appellant argues, it does not charge appellant with criminal trespass as defined by Texas law. In his tenth issue, appellant argues the information charging him with criminal trespass is fatally defective because the complaint upon which it is based is fatally defective.
A person commits the offense of criminal trespass if that person remains on the property of another without effective consent and he received notice to depart but failed to do so. TEX. PEN. CODE ANN. § 30.05(a)(2). Even though the statutory language of section 30.05(a)(2) does not prescribe a culpable mental state, one is nevertheless required. See TEX. PEN. CODE ANN. § 6.02(b) (Vernon 2003). Intent, knowledge, or recklessness is sufficient to establish responsibility for criminal trespass. Day v. State, 532 S.W.2d 302, 306 n.2 (Tex. Crim. App. 1976); see Tex. Pen. Code Ann. § 6.02(c). The complaint in this case charged that appellant intentionally or knowingly remained on the property without Dean Parker's effective consent and appellant received notice to depart but failed to do so.
In his seventh issue, appellant asserts the complaint is fatally defective because the culpable mental state is charged in the disjunctive rather than in the conjunctive. Appellant argues that the use of the disjunctive renders the allegation vague and uncertain. In his reply brief, appellant recognizes that pleading the disjunctive is permissible, and abandons this issue on appeal. See, e.g., Hunter v. State, 576 S.W.2d 395, 399 (Tex. Crim. App. 1979). Accordingly, we overrule appellant's seventh issue.
In his eighth issue, appellant contends the complaint fails to charge him with the offense of criminal trespass under Texas law because the complaint charges him with criminal trespass in two ways by charging the culpable mental state in the disjunctive. Therefore, appellant argues, the complaint is fatally defective. In his ninth issue, appellant argues the complaint fails to charge appellant with criminal trespass under Texas law because it charges two culpable mental states when section 6.02 of the Texas Penal Code only authorizes a single culpable mental state. As noted above, a defect in a complaint underlying an information must be raised before trial pursuant to article 27.03(1) of the Texas Code of Criminal Procedure. Aguilar, 846 S.W.2d at 320; see TEX. CODE CRIM. PROC. ANN. art. 27.03(1). Presuming without deciding that the complaint underlying the information is invalid, appellant cannot raise this issue for the first time on appeal. See Aguilar, 846 S.W.2d at 320. Accordingly, we overrule appellant's eighth and ninth issues.
In his tenth issue, appellant argues the information charging him with criminal trespass is fatally defective because the complaint upon which it is based is fatally defective. As stated in the previous section, because appellant did not object to the information prior to trial, he waived any contention that the information was defective because it was based upon a defective underlying complaint. See Ramirez, 105 S.W.3d at 630. Therefore, we overrule appellant's tenth issue.
In his third issue, appellant claims the trial court incorrectly charged the jury on resisting arrest because the culpable mental state in the application paragraph of...
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