Warren v. State, 10-01-047-CR.

• Decision Date: 15 January 2003
• Docket Number: No. 10-01-047-CR.,10-01-047-CR.
• Citation: 98 S.W.3d 739
• Parties: Hubert WARREN, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

98 S.W.3d 739

Hubert WARREN, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 10-01-047-CR.

Court of Appeals of Texas, Waco.

January 15, 2003.

Rehearing Overruled March 12, 2003.

Mark D. Griffith, Griffith & Associates, Waxahachie, for Appellant/Relator.

Joe F. Grubbs, County & District Attorney for Ellis Co., Cynthia W. Hellstern, Asst. County & District Attorney for Ellis Co., Waxahachie, for Appellee/Respondent.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

A jury convicted Hubert Warren of aggravated assault on a public servant. Warren pleaded "true" to allegations of four prior felony convictions, and the jury assessed his punishment at sixty years' imprisonment. Warren contends in four points that: (1) the trial court erred by failing to charge the jury on the lesser-included offense of evading arrest; (2) the evidence is legally insufficient to establish that he is the person who committed the offense; (3) the trial court violated his constitutional right to meaningfully participate in his defense by refusing to direct the State to provide him a copy of an in-car video recording; and (4) the trial court erred by denying counsel's post-trial motion to withdraw without a hearing.

BACKGROUND

According to the record, a Dallas police officer received a dispatch regarding a truck stolen from a truck stop. She located the stolen truck and attempted to make a traffic stop. The driver refused to pull over. She radioed for assistance. The driver of the stolen truck led officers from several agencies on a high-speed chase down Interstate Highway 35. He exited the interstate and went north on U.S. Highway 287.

Two Department of Public Safety troopers laid spikes across both northbound lanes of Highway 287 as the stolen truck approached at approximately 100 miles per hour. The truck swerved to the right shoulder where one of the troopers was standing. The trooper pulled the spikes from the roadway by an attached rope so that the pursuing patrol cars would not be disabled. As he did so, he fell to the ground suffering severe injuries to both knees. Officers with the Midlothian Police Department eventually stopped the truck.

PRO SE PLEADINGS

Warren has raised a number of different issues in pro se briefs he has filed.¹ We have decided to address one in the interest of justice: whether the trial court erred by denying counsel's motion to withdraw without a hearing.² See Williams v. State, 946 S.W.2d 886, 892 (Tex.App.-Waco 1997, no pet.) (appellate court may consider pro se issue in the interest of justice even though appellant has no right to hybrid representation). At oral argument, we directed Warren's counsel and the State's counsel to provide additional briefing on this issue, which they have done.

SUFFICIENCY OF EVIDENCE

Warren contends in his second point that the evidence is legally insufficient to prove that he is the person who committed the offense because he was identified at trial as "Hubert Warren, Jr." but the indictment alleges that "Hubert Warren" committed the offense.

In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App.2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim. App.2000).

Warren cites article 21.02(4) of the Code of Criminal Procedure for the proposition that the name of the accused is material to an indictment. See TEX.CODE GRIM. PROC. ANN. art. 21.02(4) (Vernon 1989). While that may be a correct statement of the law, the pertinent inquiry for our consideration is whether the name of the accused "is a substantive element of the criminal offense as defined by state law." Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (citing Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16, 61 L.Ed.2d at 577 n. 16).

The Court of Criminal Appeals held in Fuller that the victim's name is not a "substantive element" of the offense of injury to the elderly because the statute defining that offense does not include the victim's name as part of the definition of the offense. Id. at 253. Section 22.02 of the Penal Code, which defines the offense of which Warren was convicted, similarly does not include the defendant's name as part of the definition of the offense. See TEX. PEN.CODE ANN. § 22.02 (Vernon 1994). Accordingly, we conclude that the defendant's name is not a "substantive element" of the offense of aggravated assault as defined by section 22.02. See Fuller, 73 S.W.3d at 253.

Next, we must determine whether the variance between the indictment and the proof is "material." Id. (citing Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim.App.2001)).

A variance between the wording of an indictment and the evidence presented at trial is fatal only if "it is material and prejudices [the defendant's] substantial rights." When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.

Gollihar, 46 S.W.3d at 257 (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir.2000)).³

The evidence varied from the allegations of the indictment in that the defendant was identified by a witness as Hubert Warren, Jr. while the indictment alleges that "Hubert Warren" committed the offense. In Fuller, the witnesses referred to the victim as "Mr. Fuller" or "Buddy" while the indictment alleged his name as "Olen M. Fuller." Id. at 252. The Court observed, "There is no indication in the record that appellant did not know whom he was accused of injuring or that he was surprised by the proof at trial." 73 S.W.3d at 254.

In Warren's case, there is similarly no indication that he did not know that he was the person accused of committing the offense or that he was surprised that he was identified as Hubert Warren, Jr. Warren's counsel did not argue at the conclusion of the guilt-innocence phase that Warren should be acquitted because of this variance between the indictment and the proof. Accordingly, we conclude that the indictment gave Warren sufficient notice "to allow him to prepare an adequate defense at trial." See Gollihar, 46 S.W.3d at 257 (quoting Sprick, 233 F.3d at 853).

Regarding the issue of whether this variance subjects Warren to the risk of being prosecuted later for the same offense, the Court of Criminal Appeals noted in Gollihar that the entire record from a first trial (as opposed to the indictment alone) should be examined to protect against double jeopardy in a subsequent prosecution. Id. at 258 (citing United States v. Apodaca, 843 F.2d 421, 430 n. 3 (10th Cir.1988)). As the Court explained in a prior double jeopardy case, "[W]hen one cannot determine from the State's pleadings whether the offenses prosecuted are the same, the court must look to the proof offered at [the first] trial." Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex.Crim.App.1998) (citing Luna v. State, 493 S.W.2d 854, 855 (Tex.Crim.App.1973)).

The Court concluded in Fuller that the defendant could not be subjected to a subsequent prosecution for the same offense because of the variance at issue in that case. 73 S.W.3d at 254 (citing Gollihar, 46 S.W.3d at 257). We reach the same conclusion here. If the State attempted to prosecute Warren again for this aggravated assault, a review of the record from the first trial would reveal that he had already been prosecuted for this offense. Accordingly, we conclude that the variance would not subject him to another prosecution for this offense. Id.

The variance between the indictment and proof is not "material." Accordingly, the evidence is legally sufficient to support Warren's conviction. See Fuller, 73 S.W.3d at 253; Gollihar, 46 S.W.3d at 257. Thus, we overrule Warren's second point.

VIDEO RECORDING

Warren argues in his third point that the court violated his constitutional right to meaningfully participate in his defense⁴ by refusing to require the State to provide him a copy of an in-car video recording of the pursuit so he could review the recording with his attorney. However, the record reflects that the State did provide him a copy of this recording. Accordingly, we overrule Warren's third point.

LESSER-INCLUDED OFFENSE

Warren claims in his first point that the court erred by denying his request for submission of evading arrest as a lesser-included offense in the charge. The State responds that evading arrest is not a lesser-included offense of aggravated assault on a public servant.

A trial court must submit a lesser-included offense to the jury if: (1) such offense is included within the proof necessary to establish the offense charged; and (2) the record contains some evidence that if the defendant is guilty, he is guilty of only the lesser offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App.2000); Hardie v. State, 79 S.W.3d 625, 630 (Tex. App.-Waco 2002, pet. ref'd). To determine whether the lesser offense is included within the proof necessary to establish the offense charged, we begin with an analysis of the statutory elements of the respective offenses. E.g., Hardie, 79 S.W.3d at 631; Juneau v. State, 49 S.W.3d 387, 390-91 (Tex.App.-Fort Worth 2000, pet. ref'd).

As charged, the elements of aggravated assault on a public servant are: (1) the defendant; (2) intentionally, knowingly, or recklessly; (3) caused serious bodily injury; (4) to a person he knew was a public servant; (5) who was lawfully discharging an official...