Huitt v. State

Full title: CURTIS CLAY HUITT, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 24, 2007

No. 05-06-00632-CR (Tex. App. Apr. 24, 2007)

Opinion

No. 05-06-00632-CR

Opinion issued April 24, 2007. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the Criminal District Court No. 6 Dallas County, Texas, Trial Court Cause No. F05-34218-IKX.

Before Chief Justice THOMAS and Justices WHITTINGTON and LAGARDE.¹ Opinion By Justice LAGARDE.

1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

SUE LAGARDE, Justice, Assigned.

Appellant was indicted for, and pleaded not guilty to, possession with intent to deliver cocaine in an amount of four grams or more but less than two hundred grams. See Tex. Health Safety Code Ann. §§ 481.112(a), (d) (Vernon 2003). The indictment also alleged one previous conviction. A jury found appellant guilty of the lesser-included offense of possession of cocaine in an amount of four grams or more but less than two hundred grams. See Tex. Health Safety Code Ann. §§ 481.115(a), (d) (Vernon 2003). Appellant pleaded true to the allegations contained in the enhancement paragraph. The trial court assessed appellant's punishment at sixteen years' confinement in the penitentiary. Appellant now appeals his conviction, raising two issues: whether the trial court erred in denying his challenge for cause of a prospective juror, over his objection, in violation of article 35.16 of the Texas Code of Criminal Procedure, and whether the judgment improperly reflects appellant was convicted of the offense of unlawful possession with intent to deliver a controlled substance, to-wit: cocaine, and also improperly reflects the trial court found the allegations in the enhancement paragraph of the indictment to be true. For the reasons that follow, we resolve appellant's first issue against him. We resolve appellant's second issue in his favor, in part, and against him, in part. We modify the judgment to reflect appellant was convicted of unlawful possession of cocaine in an amount of four grams or more but less than two hundred grams. As modified, we affirm the judgment.

Background

On December 30, 2004, Irving police officer Matthew Roth was on routine patrol about ten o'clock in the evening when he noticed a truck blocking traffic in the left turn lane of a busy intersection.² Roth drove through the intersection, made a U turn, and stopped his vehicle behind the truck. Another officer, responding to a call of an unconscious person in a vehicle, arrived about the same time. After activating their emergency lights, both officers approached the driver's side of the truck where they saw the sole occupant, identified as appellant, behind the wheel with his foot on the brake pedal, the truck in drive, and appellant's right hand holding a plastic bag containing a white substance. Roth believed the white substance to be cocaine. When Roth knocked on the window, appellant woke up and opened the door. Roth asked him to step out of the truck. On the seat where appellant had been sitting, there was $604 rolled up and secured with a rubber band. The plastic bag contained thirty-five cocaine rocks, individually wrapped in smaller plastic bags, and secured with twist ties. Appellant was arrested for possession of cocaine; the drugs and money were seized. A search of the truck also revealed a small amount of marijuana. The seized drugs were analyzed at the Southwestern Institute of Forensic Sciences at Dallas (SWIFS). The forensic chemist's report, admitted into evidence at trial, shows the larger plastic bag contained a total weight of 14.55 grams of cocaine individually wrapped in 25 plastic baggies. Dallas police officer David Potts testified as an expert witness at trial. In his expert opinion, the amount of cocaine and the packaging indicated it was individually packaged for resale. Potts concluded the appellant was a mid-level drug dealer and the cocaine had a street value of $1450. Appellant did not testify at the guilt-innocence stage of trial. Through the testimony of a certified Dallas County sheriff's fingerprint expert, appellant was shown to be the same person who was convicted of the previous offense listed in the enhancement paragraph of the indictment (cause number F03035855-VR), and listed in the penitentiary packet the State offered, and the trial court admitted, into evidence. Appellant was also established as being the same person convicted in three other felony offenses and seven misdemeanor offenses, which were also admitted into evidence during the punishment hearing. Appellant testified at the punishment hearing. Appellant testified he had previously been confined more than once, had been a drug addict since he was thirteen years old, and asked for drug rehabilitation rather than imprisonment. Appellant testified confinement in prison would do him no good.

Appeal

In his first issue on appeal, appellant contends the trial court reversibly erred by denying his challenge for cause of prospective juror Whitehead, juror number 35, over his objection, in violation of article 35.16 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon 2006). Appellant contends Whitehead should have been removed for cause because he stated he would give a police officer greater credibility than a lay witness.³ The State disagrees, contending Whitehead was not properly subject to a challenge for cause. Although Whitehead initially said he would expect a police officer to be more credible, the State points out that Whitehead later assured the trial court he would consider all the testimony equally. Therefore, the trial court did not abuse its discretion in denying appellant's challenge for cause. In his second issue, appellant contends the judgment should be modified in two ways: to properly show he was convicted of possession of cocaine, not possession of cocaine with intent to deliver; and to delete the finding of "true" to the allegations in the enhancement paragraph of the indictment. The State agrees the judgment should be modified to reflect appellant was convicted of possession of cocaine; however, the State contends the presumption of regularity operates to support the finding of true of the allegations in the enhancement paragraph of the indictment.⁴ In relevant part, the record reflects the following occurred during voir dire examination of the general panel of prospective jurors:

[Defense counsel]: Who here feel like police officers — give police officers a starting point better credibility? Number 35 [Whitehead]?

Prospective Juror: That's just a starting point, not a denigration of any other witness and not to say that I wouldn't weigh it.

[Defense counsel]: I would fully expect anybody to wait. What I am specifically focusing on is the starting point and if the starting point is you would give a police officer greater credibility?

And, Mr. Whitehead, you would?

Prospective Juror: Yes.

Based on the above exchange, through counsel, appellant challenged juror number 35 for cause. The State opposed the challenge. Juror number 35 was then individually questioned by the trial judge, during which the following occurred, in relevant part:

THE COURT: Mr. Whitehead, the attorneys are going to ask you some follow-up questions to clarify for me some of the answers previously given.

[Defense counsel]: Mr. Whitehead, was I correct in my understanding that you would give a police officer, because he is paid to enforce the law and uphold the laws, you would give the police officer a better starting point, credibility wise, than somebody who is not a police officer?

PROSPECTIVE JUROR: As the question is asked, initially, yes, I would expect him to be more credible than just anybody else off the street.

[Defense counsel]: Okay. And I understand that you would wait and hear the testimony and your evaluations may change, correct; but from the get-go, you are going to give a police officer more credibility?

PROSPECTIVE JUROR: Yes.

[Defense counsel]: Okay, no, I don't have any further questions.

[Prosecutor]: Yes, sir. From the get-go, let's make sure we are both on the same page here, are you talking about when they walk into the courtroom or after they take an oath and actually start providing testimony?

PROSPECTIVE JUROR: Just when they walk into the courtroom.

[Prosecutor]: So when they walk into the courtroom just because they have a uniform on?

PROSPECTIVE JUROR: Correct.

[Prosecutor]: No further questions, Your Honor.

THE COURT: Now, I am a little confused, let me see if I [can] clarify for myself. You heard my previous statement, whether you are a priest, President of the United States, a police officer or a milkman, makes no difference, when you come in this courtroom to testify, it's your credibility, once they are sworn in, that counts. If you start anyone else a little bit ahead of the other, then that obviously gives an unfair advantage to the other.

Do you start somebody out a little bit ahead than the other witness?

PROSPECTIVE JUROR: For the purpose of the court, I would consider all testimony equally.

THE COURT: You can put aside your preconceived notion of a police officer and start everyone on a level playing field?

PROSPECTIVE JUROR: Yes, sir.

THE COURT: Is that what you are telling me?

PROSPECTIVE JUROR: Yes, sir.

THE COURT: Thank you. Thirty-five is denied.

After the trial court instructed the attorneys to strike their jury lists, the following occurred, in relevant part:

[Defense counsel]: Comes now the defendant, by and through counsel, and requests for additional peremptory challenges due to the fact that the Court has denied my challenge for cause of Juror No. 35, who said that — who initially said from the beginning he would give police officers more credibility. I would submit that that juror should have been struck for cause and I have run out of peremptory challenge and therefore are requesting additional peremptory challenges.

THE COURT: Denied.

[Defense counsel]: Okay. I would like to point out to the Court that I have had to take on a juror that I would have struck had I not run out of peremptory challenges, specifically Juror No. 42, who stated during voir dire who was a psycho therapist dealing with people with drug addictions and she is objectionable, but I ran out of peremptory and end of my statement.

THE COURT: Motion's denied.

Preservation of Error

To preserve error on denied challenges for cause, one must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venire person; (3) all his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury. See Sells v. State, 121 S.W.3d 748, 758 (Tex.Crim.App. 2003). Error having been properly preserved, we reach the merits of appellant's first point.⁵

Merits

Appellant cites Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App. 1978) as a case with similar facts to the facts in this case. Appellant quotes the following language: "Appellant contends that the venireman's inability to believe that a police officer would tell a willful falsehood disqualified her . . . There is no doubt that the venireman's attitude toward police officers constituted a bias against the appellant." Appellant contends the record shows Whitehead exhibited such an attitude which constituted a bias against the appellant in this case. Appellant further contends the trial court's erroneous denial of his challenge for cause requires reversal because the error actually deprived him of a lawfully constituted jury because he was forced to accept an objectionable juror when he was not allowed an additional peremptory strike. Appellant cites Ladd v. State, 3 S.W.3d 547, 562 (Tex.Crim.App. 1999).

Law

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 the reason that a prospective juror has a bias or prejudice in favor of or against the defendant. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (Vernon 2006). If a prospective juror cannot impartially judge the credibility of witnesses, he is subject to a proper challenge for cause. See Ladd, 3 S.W.3d at 560 (citing Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App. 1998)). The court in Ladd goes on to say, however, that "[v]eniremen are not challengeable for cause simply because they would give certain classes of witnesses a slight edge in terms of credibility, because `complete impartiality cannot be realized as long as human beings are called upon to be jurors.'" Ladd, 3 S.W.3d at 560.

Appellate Review

On appeal, when reviewing a trial court's ruling on a challenge for cause, we must examine the entire record to determine whether there is sufficient evidence to support the trial court's ruling. See Patrick v. State, 906 S.W.2d 481, 488 (Tex.Crim.App. 1995). Because of a trial judge's advantage of being able to personally observe the demeanor of a prospective juror, we must give deference to the trial court's decision. See King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App. 2000). We reverse only if we find a clear abuse of discretion. Id.

Application

Appellant relies on Hernandez v. State, 563 S.W.2d at 950. There, the prospective juror testified she believed a police officer would never lie on the witness stand. Id. We conclude the facts here differ from those in Hernandez. Whitehead initially confirmed he would give police officers a starting point of better credibility; however, he went on to say that was "not a denigration of any other witness and not to say that [he] wouldn't weigh it." Later, he testified on cross-examination he would expect a police officer to be "more credible than just anybody else off the street." Then, on redirect examination, the prosecutor asked Whitehead if he was "talking about when they [police officers] walk into the courtroom or after they take an oath and actually start providing testimony?" Whitehead responded that he meant he would give a police officer more credibility `[j]ust when they walk into the courtroom." Whitehead assured the court he would weigh "all [the] testimony equally." Because the trial court was in a position to personally observe Whitehead's demeanor when responding to questions, we must defer to the trial court's decision that Whitehead could, and would, impartially judge the credibility of the witnesses in the case "equally" as he stated. No abuse of discretion is shown. We resolve appellant's first issue against him.

The Judgment

In issue number two, appellant raises the issue of whether the judgment of the trial court improperly reflects the offense as "unlawful possession with intent to deliver a controlled substance, to wit: cocaine" and improperly reflects a finding of "true" to the enhancement paragraph of the indictment because this finding is not supported by the oral pronouncement of the court. The State agrees the judgment should be reformed to reflect appellant was convicted of possession of cocaine; however, the State contends appellant's challenge to the finding of "true" in the judgment is without merit and should be resolved against him. Although appellant was indicted for possession with intent to deliver cocaine, he was found guilty by the jury of the lesser-included offense of possession of cocaine. Therefore, we resolve that portion of issue two in favor of appellant. This court has the power to modify an incorrect judgment when it has the necessary data and information before it to do so. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to correctly reflect appellant was convicted of the offense of unlawful possession of cocaine in an amount of four grams or more but less than two hundred grams. We delete that portion of the judgment showing appellant was convicted of the offense of possession of cocaine with intent to deliver. Appellant pleaded true to the allegations contained in the enhancement paragraph. The written judgment recites the trial court found the allegations in the enhancement paragraph to be true. Appellant's plea of true is sufficient to support the trial court's finding. Punishment was assessed accordingly. See Tex. Penal Code Ann. § 12.42(b) (Vernon Supp. 2006). Although appellant does not challenge his plea of true to the enhancement paragraph, he contends that because the trial court did not orally find the enhancement paragraph to be true, the written judgment should be reformed to delete a finding of true. We disagree. The record shows appellant pleaded true to the allegations contained in the enhancement paragraph. The written judgment recites the trial judge found the allegations in the enhancement paragraph to be true. Absent evidence to the contrary, there is a presumption of regularity in the trial court's judgment. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984); Armstrong v. State, 781 S.W.2d 937, 942 (Tex.App.-Dallas 1989), aff'd, 805 S.W.2d 791 (Tex.Crim.App. 1991). No contrary evidence appears in the record before us. The presumption of regularity being unrebutted, the judgment is presumptively correct. It is also sufficiently supported by the record. We resolve this portion of appellant's second issue against him. We modify the judgment to reflect appellant was found guilty of the offense of possession of cocaine in an amount of four grams or more but under two hundred grams. As modified, we affirm the judgment.