Morgan v. State, No. 12-06-00226-CR (Tex. App. 9/2/2009)

• Decision Date: 02 September 2009
• Docket Number: No. 12-06-00226-CR.,12-06-00226-CR.
• Parties: DERRICK MORGAN, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

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DERRICK MORGAN, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 12-06-00226-CR.

Court of Appeals of Texas, Twelfth District, Tyler.

Opinion delivered September 2, 2009.

Do Not Publish.

Appeal from the 241st Judicial District Court of Smith County, Texas.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

MEMORANDUM OPINION

SAM GRIFFITH, Justice.

Derrick Morgan, pro se, appeals his conviction for harassment by persons in certain correctional facilities. Appellant asserts six issues on appeal.¹ We affirm.

Background

Appellant was charged by indictment with harassment by persons in certain correctional facilities. Specifically, the indictment alleged that Appellant threw urine onto another person while confined in the Smith County Jail.² As charged, this offense constituted a third degree felony. The State subsequently filed written notice of intent to seek a higher range of punishment based upon two prior felony convictions: aggravated assault and evading arrest or detention. Based on these prior convictions, the range of punishment for the offense could be enhanced to imprisonment for a term of twenty-five years to life. Appellant pleaded not guilty and was tried before a jury. The jury found Appellant guilty of the offense as charged in the indictment. Appellant pleaded true to the State's enhancement allegations and the jury found those allegations to be true. The jury assessed Appellant's punishment at ninety-nine years of imprisonment. This appeal followed.

Constitutionality of Statute

In his first issue, Appellant argues that the "TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION `CHALLENGE TO CONSTITUTIONALITY OF STATUTE (42.07) UPON WHICH DEFENDANT STANDS CHARGED BY INDICTMENT['] . . . ." Appellant also appears to argue, in the alternative, that the trial court overruled Appellant's motion without first "considering" it. Finally, Appellant argues that the trial court erred by failing to explain to the parties its reasons for overruling the motion.

Consideration of Motion

We begin by addressing Appellant's argument that the trial court failed to consider his motion. At the pretrial hearing, the trial court stated that it had received Appellant's motion and that it had signed an order overruling that motion. The written order is contained in the clerk's record. Neither the reporter's record nor the clerk's record reflects that the trial court overruled this motion without first considering it. In the absence of any proof to the contrary, we will presume that the trial court considered the motion in question before overruling it. See Word v. State, 206 S.W.3d 646, 651 (Tex. Crim. App. 2006).

Failure to Explain Reasons for Ruling

Appellant also complains that the trial court failed to explain the reasons for its ruling. However, trial courts are, generally, not required to set forth particular reasons for their rulings. See, e.g., Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000) ("[W]e will assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion."). Further, were this failure error, it would not be preserved for review because it was not complained of in the trial court. See Tex. R. App. 33.1.

Constitutionality

Appellant was indicted under Texas Penal Code section 22.11.³ See Tex. Penal Code Ann. § 22.11 (Vernon Supp. 2008). From our reading of Appellant's brief, we can discern two basic complaints about section 22.11. First, Appellant complains that, because of the language of section 22.11, he "was forced to be cloaked in the equivalent of an inmate's uniform in front of the venire panel because . . . [of] the statutory provision that designated that he was an inmate at the time of the alleged offense." According to Appellant, "[t]his statute is facially unconstitutional because it violates [the] presumption of innocence protections that are the bedrock of our judicial system." Second, Appellant complains that "the statute is vague and ambiguous regarding the mental state required to be proved by the State."

Here, when reviewing the trial court's ruling on Appellant's constitutionality challenge, we will apply a de novo standard of review. We will do so because the trial court was not in a better position than this court to determine whether section 22.11 is unconstitutional. See Eguia v. State, No. 01-06-01136-CR, 2008 WL 4965178, at *10 (Tex. App.-Houston [1st Dist.] Nov. 20, 2008, no pet.) (citing Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007)). When evaluating the constitutionality of a statute, we initially presume that the legislature has not acted unconstitutionally and that the statute is valid. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Id. In the absence of contrary evidence, we will presume that the legislature acted in a constitutionally sound fashion. Id.

In regard to Appellant's first complaint that one element of the charged offense is that the defendant be "imprisoned or confined in a correctional or detention facility," Appellant has not met his burden to establish the statute's unconstitutionality. See Tex. Penal Code Ann. § 22.11(a)(1). This is because we are not persuaded that either the United States or Texas constitutions prohibit the State of Texas from criminalizing acts specific to those engaged in by incarcerated or confined persons. Cf. Old Chief v. United States, 519 U.S. 172, 174, 117 S. Ct. 644, 647, 136 L. Ed. 2d 574 (1997) (prosecution entitled to present evidence of prior felony where existence of prior felony is element of current offense in question). Indeed, it seems reasonable that the State of Texas would seek to criminalize certain specific conduct occurring in prisons and jails, such as an inmate's assault of another person by throwing urine on him. Cf. Milligan v. State, 554 S.W.2d 192, 194 (Tex. Crim. App. 1977) ("We have no difficulty in perceiving a rational basis for the application of the statute to persons convicted of felonies involving an act of violence or threatened violence . . . ."). Further, it would seem impossible for the legislature to draft statutes criminalizing such conduct without making some reference to a person's status as an inmate. We hold that the United States and Texas constitutions do not, in the context of section 22.11, require such a drafting. Cf. Old Chief, 519 U.S. at 174, 117 S. Ct. at 647; Milligan, 554 S.W.2d at 194.

Appellant's second complaint, that "the statute is vague and ambiguous regarding the mental state required to be proved by the State," is also unpersuasive. Section 22.11 states that a person does not commit an offense unless they commit the statutorily prohibited conduct "with the intent to assault, harass, or alarm." Tex. Penal Code Ann. § 22.11(a). This statutory language is not vague or ambiguous.⁴ See id. Even if this portion of the statute were inadequate, any ambiguity would be cured by penal code section 6.02. See Tex. Penal Code Ann. § 6.02 (Vernon Supp. 2008) ("If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility."); West v. State, 567 S.W.2d 515, 516 (Tex. Crim. App. 1978) ("Although Sec. 30.05, supra, does not prescribe a culpable mental state, we hold that a culpable mental state of intentionally, knowingly, or recklessly is required by Sec. 6.02, supra."). Appellant has failed to meet his burden to establish the unconstitutionality of section 22.11. See Rodriguez, 93 S.W.3d at 69. The trial court did not err in overruling Appellant's motion.

Conclusion

The record does not reflect that the trial court failed to consider Appellant's motion challenging the constitutionality of section 22.11. See Word, 206 S.W.3d at 651. And, the trial court was not required to explain the reasons for its ruling. See Carmouche, 10 S.W.3d at 328. Finally, Appellant has not met his burden to establish that section 22.11 is unconstitutional. See Rodriguez, 93 S.W.3d at 69. Therefore, we overrule Appellant's first issue.

Motion for New Counsel

In his second issue, Appellant claims that the "TRIAL COURT ERRED IN DENYING DEFENDANT'S ORAL MOTION FOR AN ATTORNEY." Appellant also argues that the trial court erred by failing to explain the reasons for this denial. The record reflects that, at the pretrial conference, Appellant personally made an oral motion before the trial court that he be provided with a new court appointed attorney.

Rule 38.1(i) of the Texas Rules of Appellate Procedure provides that an appellate brief must contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(i) (formerly Tex. R. App. P. 38.1(h)). When an appellant does not adequately comply with rule 38.1(i), nothing is presented for appellate review. See State v. Gonzalez, 855 S.W.2d 692, 697 (Tex. Crim. App. 1993); Nguyen v. State, 177 S.W.3d 659, 669 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Here, other than the bare allegation that the trial court erred, Appellant has failed to offer any argument in support of his issue. Because Appellant has failed to provide us with an adequate substantive analysis of his issue, he has presented nothing for our review. We overrule Appellant's second issue.

Motion for Continuance

In his third issue, Appellant asserts that the "TRIAL COURT ERRED IN DENYING DEFENDANT'S ORAL MOTION FOR . . . CONTINUANCE IN WHICH TRIAL COURT ERRED BY ALLOWING BOTH SIDES TO PROCEED WITH TRIAL . . . ." Appellant also complains that the trial court erred by failing to explain the reasons for this denial. Finally, Appellant states that "[t]he defendant made a desperate motion that was not taken seriously by the trial court."

The record before...