Perez v. State, 13-97-095-CR

• Court: Court of Appeals of Texas
• Citation: 41 S.W.3d 712
• Docket Number: No. 13-97-095-CR,13-97-095-CR
• Parties: (Tex.App.-Corpus Christi 2001) ORLANDO JAVIER PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee.
• Decision Date: 11 January 2001

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41 S.W.3d 712 (Tex.App.-Corpus Christi 2001) ORLANDO JAVIER PEREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee. No. 13-97-095-CR Court of Appeals of Texas, Corpus Christi. January 11, 2001
Rehearing Overruled March 8, 2001.

On appeal from the 103rd District Court of Cameron County, Texas.

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Copyrighted Material Omitted

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Before Justices Dorsey, Hinojosa, and Rodriguez

OPINION

Rodriguez, Justice.

This case is before us on remand from the Texas Court of Criminal Appeals. As a result of his involvement in a drive-by shooting, a jury convicted appellant, Orlando Javier Perez, of aggravated assault with a firearm¹ and assessed his punishment at fifteen years imprisonment. By four issues Perez complains that: (1) the evidence is legally and factually insufficient; (2) article 44.46 of the Texas Code of Criminal Procedure conflicts with the Texas Constitution; (3) the court abused its discretion when it required a co-defendant to refuse to take the oath in the presence of the jury; and (4) the court erred in admitting tainted eyewitness identifications. We affirm.

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In our original opinion, we concluded article 44.46 of the Texas Code of Criminal Procedure was in conflict with article XVI, section 2 of the Texas Constitution, and reversed and remanded for a new trial. See Perez v. State, 973 S.W.2d 759, 762, 762 (Tex. App.--Corpus Christi 1998), rev'd, 11 S.W.3d 218, 221 (Tex. Crim. App. 2000) (en banc). The court of criminal appeals granted the State's petition for discretionary review, reversed our judgment on the constitutionality of article 44.46 as applied to Perez, and remanded this issue for our reconsideration in a manner consistent with its opinion. See Perez, 11 S.W.3d at 221.

By his second issue, Perez asserts that article 44.46 of the Texas Code of Criminal Procedure is incompatible with the Texas Constitution because it undermines the right to trial by a qualified jury. After reconsideration consistent with the court of criminal appeals' opinion, we overrule this issue.

Perez filed a motion for new trial alleging, inter alia, that a disqualified juror sat on the jury panel. At the hearing on his motion, Perez and the State entered into the following stipulations: (1) one of the jurors had a final conviction for felony driving while intoxicated; and (2) this information was not ascertained until after the verdict was rendered. The trial court overruled Perez's motion for new trial on the basis that Perez failed to make a showing of "significant harm," as mandated by article 44.46(2).

The Texas Constitution provides that "laws shall be made to exclude from . . . serving on juries . . . those who may have been or shall hereafter be convicted of bribery, perjury, forgery, or other high crimes." Tex. Const. art. XVI, § 2. Perez argues that felony driving while intoxicated is a "high crime," and, thus, the juror should have been constitutionally disqualified.

The Texas Code of Criminal Procedure, article 44.46, sets out statutory juror disqualifications. It provides:

A conviction in a criminal case may be reversed on appeal on the ground that a juror in the case was absolutely disqualified from service under Article 35.19 of this code only if:

(1) the defendant raises the disqualification before the verdict is entered; or

(2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror.

Tex. Code Crim. Proc. Ann. art. 44.46 (Vernon Supp. Pamph. 2001). Article 35.19 provides that "no juror shall be impaneled when it appears that he is subject to the second, third or fourth ground of challenge for cause in Article 35.16, though both parties may consent." Tex. Code Crim. Proc. Ann. art. 35.19 (Vernon 1989). Article 35.16 provides, in relevant part:

(a) A challenge for cause is an objection made to a particular juror, alleging some fact, which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any of the following reasons:

* * * * *

2. That he has been convicted of theft or any felony;

3. That he is under indictment or other legal accusation for theft or any felony;

4. That he is insane. . . .

Tex. Code Crim. Proc. Ann. art. 35.16(a) (Vernon 1989).

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The Texas Court of Criminal Appeals recently determined in this case that felony driving while intoxicated cannot reasonably be characterized as a "high crime" because it does not have the same type of moral corruption and dishonesty inherent in those specified offenses of bribery, forgery and perjury. See Perez, 11 S.W.3d at 221 (citing Perez, 973 S.W.2d at 763-64 (Dorsey, J., dissenting)); see also Tex. Pen. Code Ann. §§ 49.04, 49.09(b) (Vernon Supp. 2001). Thus, felony driving while intoxicated is not a constitutional disqualification; rather, it is a statutory disqualification. See Perez, 11 S.W.3d at 221. Accordingly, we conclude there is no conflict between article XVI, section 2 of the Texas Constitution and article 44.46 of the Texas Code of Criminal Procedure.²

Because we have determined that the juror disqualification in this case is a statutory disqualification, and that it was not discovered until after the verdict was entered, Perez must show "significant harm by the service of the disqualified juror." See Tex. Code Crim. Proc. Ann. art. 44.46(2) (Vernon Supp. Pamph. 2001). Perez complains that the juror-felon's service demonstrated significant harm, and that it was harmful per se. However, Perez points us to nothing in the record, makes no argument, and cites no authority to support his contention. See Tex. R. App. P. 38.1(h)(appellant's brief to contain clear and concise argument for contentions made with appropriate citations to authorities and to record). An assertion without argument, authority or record cites presents nothing for our review.³ See id.; McFarland v. State, 928 S.W.2d 482, 512 (Tex. Crim. App. 1996). We conclude that Perez's allegations regarding significant harm are inadequately briefed. Further, a conviction alone does not constitute "significant harm" within the meaning of article 44.46. See State v. Read, 965 S.W.2d 74, 77 (Tex. App.--Austin 1998, no pet.); Hernandez v. State, 952 S.W.2d 59, 71 (Tex. App.--Austin 1997, pet. granted), vacated on other grounds, 957 S.W.2d 851 (Tex. Crim. App. 1998). Perez's second issue is overruled.

By his first issue, Perez argues the evidence is neither legally nor factually sufficient to establish he knew of the intent of the shooter, or that he did anything with the specific intent to aid the shooter in committing the assault.

When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Skinner v. State, 956 S.W.2d 532, 536 (Tex. Crim. App. 1997). In conducting this review, we do not weigh the evidence tending to establish guilt and innocence or assess the credibility of the witnesses on each side. See Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). The jury is the sole trier of fact, and may judge the credibility of the witnesses, reconcile conflicts in the testimony,

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and accept or reject any or all of the evidence on either side. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, the appellate court does not reverse the judgment on legal sufficiency grounds. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

When reviewing factual sufficiency, we view all of the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 11; Cain, 958 S.W.2d at 407; Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). The review must be appropriately deferential so as to avoid substituting this Court's judgment for that of the jury. See Cain, 958 S.W.2d at 407.

A person commits the offense of aggravated assault if he uses or exhibits a deadly weapon while intentionally or knowingly threatening another with imminent bodily injury. See Tex. Pen. Code. Ann. § 22.02(a) (Vernon 1994). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, the conduct of another for which he is criminally responsible, or both. See Tex. Pen. Code Ann. § 7.01(a). A person is criminally responsible for an offense committed by another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See Tex. Pen. Code Ann. § 7.02(a)(2). Sufficiency of the evidence is measured by the elements of the offense as defined by the "hypothetically correct jury charge for the case." See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

In determining attempts to aid the other person to commit the offense, the fact finder may consider events occurring before, during or after the commission of the offense. See Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Furthermore, circumstantial evidence may be sufficient to show that one is a party to an...