Opinion
05-21-00601-CR 05-21-00602-CR
07-31-2023
ROBERT JOSEPH MANGIAFICO JR., Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause Nos. 296-85043-2019 and 296-82188-2020
Before Justices Molberg, Partida-Kipness, and Carlyle
MEMORANDUM OPINION
KEN MOLBERG JUSTICE
I. Overview
A jury found appellant Robert Mangiafico, Jr. guilty of possession of a controlled substance with intent to deliver (trial court cause number 296-85043-2019) and evading arrest or detention with a vehicle (trial court cause number 296-82188-2020), as charged in his indictments. In the latter case, the jury also found beyond a reasonable doubt that Mangiafico "used or exhibited a deadly weapon, to wit: a motor vehicle, during the commission of the offense." Per Mangiafico's election to have the trial court assess punishment, the trial court imposed a $10,000 fine and sentenced Mangiafico to sixty three years' confinement in the Institutional Division of the Texas Department of Criminal Justice (TDCJ) in cause number 296-85043-2019, and in cause number 296-82188-2020, the trial court made an affirmative finding of a deadly weapon and sentenced Mangiafico to twenty years' confinement in TDCJ's Institutional Division. On appeal, Mangiafico raises ten issues, and the State raises a cross-issue.
In this memorandum opinion, see Tex. R. App. P. 47.4, and for the reasons that follow, we overrule Mangiafico's ten issues, sustain the State's cross-issue, affirm the judgment in cause number 296-85043-2019, and affirm the judgment as modified in cause number 296-82188-2020.
II. Issues
Mangiafico asks us to reverse the judgments based on alleged error resulting from: insufficient evidence (issues 1-3), the denial of a motion to dismiss the indictments (issue 4); various rulings regarding the alleged controlled substance, gamma hydroxybutryic acid [GHB] (issues 5-7), improper application of Texas Penal Code § 38.04 as to the category of offense (issue 8), and alleged judicial bias (issue 9). Mangiafico and the State also ask us to modify the judgments in various respects, either by modifying the description of the offense in cause number 296-85043-2019 (issue 10), or by modifying the judgment in cause number 296-82188-2020 to show the trial court found true the information alleged in the indictment's first enhancement paragraph (State's cross-issue).
III. Analysis
A. Evidentiary Sufficiency
In his first three issues, Mangiafico argues the evidence was insufficient to support (1) his conviction under Texas Penal Code § 38.04, (2) the jury's finding that he used or exhibited a deadly weapon (an auto) in the commission of the § 38.04 offense, and (3) his conviction under Texas Health and Safety Code § 481.112(f).
1. Review Standards
When reviewing the sufficiency of the evidence, we view all of 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.).
The factfinder is the sole judge of witness credibility and the weight to be given testimony. See Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. Bohannan v. State, 546 S.W.3d 166, 178 (Tex. Crim. App. 2017). "When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination." Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015).
In conducting our review, we consider "all evidence in the record of the trial, whether it was admissible or inadmissible." Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013) (citations omitted); see also Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006) ("[A] reviewing court is permitted to consider all evidence in the trial-court record, whether admissible or inadmissible, when making a legal-sufficiency determination.").
In Musacchio v. United States, 577 U.S. 237 (2016), the Court explained:
Sufficiency review essentially addresses whether "the government's case was so lacking that it should not have even been submitted to the jury." . . . . On sufficiency review, a reviewing court makes a limited inquiry tailored to ensure that a defendant receives the minimum that due process requires: a "meaningful opportunity to defend" against the charge against him and a jury finding of guilt "beyond a reasonable doubt." . . . . The reviewing court considers only the "legal" question "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Id. at 243 (internal citations omitted). In other words, "All that a defendant is entitled to on a sufficiency challenge is for the court to make a 'legal' determination whether the evidence was strong enough to reach a jury at all." Id. at 244 (quoting Jackson, 443 U.S. at 319).
2. Evading Arrest or Detention With a Vehicle
In his first issue, Mangiafico argues the evidence was insufficient to support his conviction for evading arrest or detention with a vehicle under Texas Penal Code § 38.04.
Section 38.04(a) states, "A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him." Tex. Penal Code § 38.04(a). The elements of evading arrest are that "(1) a person, (2) intentionally flees, (3) from a peace officer, (4) with knowledge he is a peace officer, (5) who is attempting to arrest defendant, and (6) the attempted arrest is lawful." Rodriguez v. State, 578 S.W.2d 419, 419 (Tex. Cr. App. 1979) (citing Alejos v. State, 555 S.W.2d 444, 448 (Tex. Crim. App. 1977)). When the accused uses a motor vehicle in his flight-as the jury concluded Mangiafico did here-the offense is a third degree felony, regardless of whether the accused has a prior conviction for evading arrest or detention. See Jones v. State, 600 S.W.3d 94, 97 (Tex. App.-Dallas 2020, pet. ref'd).
While Mangiafico contests that he fled, it is undisputed he used a motor vehicle.
The indictment in Cause Number 296-82188-2020 alleged, in part:
[Mangiafico did] then and there, while using a vehicle, intentionally flee from J Diaz, a person the defendant knew was a peace officer who was attempting lawfully to arrest and detain the defendant[.]
The jury unanimously found Mangiafico guilty of evading arrest or detention with a vehicle, as charged in the indictment.
Mangiafico does not explicitly challenge the sufficiency of the evidence as to any specific element, but all of his arguments relate only to the second element- whether he intentionally fled. The parties agree that speed, distance, and duration of the pursuit are all factors in determining whether a person intentionally fled. See Easter v. State, No. 05-19-00398-CR, 2020 WL 3424950, at *2 (Tex. App.-Dallas June 23, 2020, no pet.) (mem. op., not designated for publication).
In arguing that "no rational trier of fact could have found beyond a reasonable doubt that [he] was guilty of evading," Mangiafico states he was traveling less than the speed limit at one point but could have been driving much faster, as he was driving a Bentley, which he argues "could have outrun [State Trooper Justin Diaz's] vehicle." Mangiafico also argues his behavior after the stop "was not the normal behavior of someone who was evading arrest" because he did not get out of the vehicle and run, complied with what he was instructed to do, and appeared to one of the officers to be in a state of confusion.
The evidence regarding Mangiafico's flight was not so limited, however. The pursuit began after Mangiafico passed Trooper Diaz at more than 100 miles per hour, causing Trooper Diaz to activate his emergency lights and pursue Mangiafico. Mangiafico then pumped his brakes several times, indicating to Trooper Diaz that Mangiafico saw him in the rearview mirror. When Mangiafico did not stop, Trooper Diaz also activated his siren and front take-down light. During the approximately seven-minute pursuit-all of which was captured on video taken from the dashboard camera in Trooper Diaz's car-Mangiafico passed multiple exits; drove at speeds varying from 70 to 100 miles per hour; and drove erratically and dangerously at times, as detailed below in our discussion of the deadly weapon finding.
Trooper Diaz described his front take-down light as a "heavy white light" on his "light bar in front," an "additional eye-catcher" used to grab attention.
Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that Mangiafico intentionally fled and thus conclude the evidence is sufficient to support his conviction under Texas Penal Code § 38.04. See Easter, 2020 WL 3424950, at *2- 3 (concluding evidence was sufficient to support appellant's § 38.04 conviction, where jury could rationally infer from the evidence that appellant was intentionally fleeing from a peace officer based on evidence appellant did not promptly comply with the peace officer's direction to stop her car, the officer followed appellant for five to seven miles with lights and siren activated, and appellant engaged in actions suggesting to officer that she knew the peace officer was behind her).
We overrule Mangiafico's first issue.
3. Deadly Weapon Finding
In his second issue, Mangiafico argues the evidence was insufficient to support the jury finding that he used or exhibited his vehicle as a deadly weapon.
The indictment in Cause Number 296-82188-2020 alleged Mangiafico did:
then and there, while using a vehicle, intentionally flee from J Diaz, a person the defendant knew was a peace officer who was attempting lawfully to arrest and detain the defendant;
and . . . during the commission of the above described felony, [Mangiafico] did use a deadly weapon, to-wit: a motor vehicle that in the manner of its use and intended use was capable of causing death and serious bodily injury[.]
See Tex. Penal Code § 1.07(a)(17)(b) (defining "deadly weapon" as including "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.").
After unanimously finding Mangiafico guilty of evading arrest with a vehicle, the jury answered "Yes" to a special issue asking whether the jury found beyond a reasonable doubt that Mangiafico "used or exhibited a deadly weapon, to wit: a motor vehicle, during the commission of the offense."
When assessing the sufficiency of the evidence, we review the record to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that Mangiafico's vehicle was used or exhibited as a deadly weapon. Couthren v. State, 571 S.W.3d 786, 789 (Tex. Crim. App. 2019). By statute, a motor vehicle is not a deadly weapon per se, but can be found to be a deadly weapon if it is used in a manner that is capable of causing death or serious bodily injury. Id. In Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017) the court stated,
To justify a deadly weapon finding under Section 1.07(a)(17)(B), the State need not establish that the use or intended use of an implement actually caused death or serious bodily injury; only that "the manner" in which it was either used or intended to be used was "capable" of causing death or serious bodily injury. Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008) (emphasis added). Nor does the plain language of the provision require that the actor actually intend death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Pruett v. State, 510 S.W.3d 925, 928 (Tex. Crim. App. 2017).
Here, in arguing that the evidence is insufficient to support the jury's deadly weapon finding, the only portion of the record Mangiafico cites is Trooper Diaz's testimony that he has never added a deadly weapon enhancement charge. What he fails to discuss on this issue, however, is any description of the manner in which Mangiafico used his vehicle during the approximately seven-minute pursuit after he passed Trooper Diaz at 100 miles per hour and Trooper Diaz turned on his lights and siren and began pursuing him.
Trooper Diaz also answered, "No, sir" when asked, "That's not something that's done on your end?"
Trooper Diaz testified that during his pursuit, Mangiafico consistently traveled between 70 to 100 miles per hour, moved from lane to lane, did not use his turn signal, was "[a]ll over the road," was "following cars too closely, cutting cars off, coming close to contact with vehicles," made the roadway "kind of dangerous for everybody else" and "was a hazard on the roadway."
The video evidence in the record bears this out. The video shows that during the pursuit, Mangiafico often weaved from lane to lane without signaling, drove on the shoulder at times, drove between lanes several times, and at times drove into lanes occupied by other vehicles and came close to colliding with the other vehicles more than once.
The video also shows that in the thirty seconds before Mangiafico collided with the concrete barrier, he passed two other vehicles while in the far right lane, weaved into the lane to the left, braked and slowed down for no apparent reason, accelerated, drove between lanes and back into the far right lane, weaved across three lanes to the far left lane, weaved the other way across three lanes to the right, then collided with a concrete barrier, braked, and pulled to a stop shortly thereafter. In the twenty seconds that followed his collision with the concrete barrier, six other vehicles and a tank truck passed by.
This evidence is a far cry from the evidence in Clark v. State, 573 S.W.3d 367 (Tex. App.-Beaumont 2019, no pet.), which Mangiafico cites as support. In Clark, the appellant used his blinkers and was not driving on a highway at speeds between 70 and 100 miles per hour; moreover, in concluding the evidence was insufficient in that case, our sister court stated, "Most importantly, the evidence conclusively established there were no other vehicles on the roadway during the brief period between the time the officer activated his overhead lights and when [appellant] crashed his vehicle into the ditch." Id. at 374. Clark is distinguishable.
The evidence is also a far cry from the evidence found to be insufficient in Couthren, 571 S.W.3d at 790. In that case, the appellant was charged with use of a deadly weapon in the commission of an offense of driving while intoxicated (DWI). The Court described the record as containing "very little evidence about the manner in which [a]ppellant used his motor vehicle during the commission of the offense" and stated that the Court did not know "the manner in which [a]ppellant was driving seconds before" hitting a pedestrian, if appellant "applied his brakes prior to the accident," or "if there were other cars on the road." Id. Here, we know there were other cars on the road and know exactly how Mangiafico was driving, both from Trooper Diaz's detailed description and the video of his pursuit. Couthren is also distinguishable.
Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support the jury's deadly weapon finding because, based on this record, a rational trier of fact could have found beyond a reasonable doubt that Mangiafico used his vehicle in a manner capable of causing death or serious bodily injury during his commission of evading arrest or detention with a vehicle.
We overrule Mangiafico's second issue.
4. Possession with Intent to Deliver a Controlled Substance
In his third issue, Mangiafico argues the evidence was insufficient to support his conviction for possession with intent to deliver a controlled substance under Texas Health and Safety Code § 481.112(f).
Section 481.112(f) provides an offense under subsection (a) "is punishable by imprisonment in [TDCJ] for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more." Tex. Health & Safety Code § 481.112(f). Subsection (a) provides that "a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1." Id. § 481.112(a).
In a possession-with-intent-to-deliver case, the State must prove beyond a reasonable doubt that the defendant: (1) exercised care, custody, control, or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. Tex. Health & Safety Code §§ 481.002(38) (defining possession), 481.112(a) (defining offense); Nhem v. State, 129 S.W.3d 696, 699 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (stating elements).
The indictment in cause number 296-85043-2019 alleged, in part, that Mangiafico "did then and there intentionally and knowingly possess, with intent to deliver a controlled substance, namely, [GHB], in an amount of 400 grams or more." GHB, commonly known as a date-rape drug, is a controlled substance within penalty group one. See id. § 481.102(9); State v. Danley, No. 11-20-00232-CR, 2022 WL 2975984, at *1 (Tex. App.-Eastland July 28, 2022, no pet.) (mem. op., not designated for publication). The jury unanimously found Mangiafico guilty of possession of a controlled substance with intent to deliver, as charged in the indictment.
See Casey v. State, 215 S.W.3d 870, 876 (Tex. Crim. App. 2007) (referring to GHB as being "commonly known as a date-rape drug").
Mangiafico does not explicitly challenge the sufficiency of the evidence as to any specific element, but all of his arguments relate only to the second element- whether he intended to deliver the controlled substance, GHB, to another.
In his brief on this issue, Mangiafico argues, "[T]he State did not present any evidence that supported [Mangiafico] making or delivering GHB or that he possessed it with an intent to deliver it[,]" "[t]here is no evidence in the record that [he] had the intent to or did deliver any amount of a controlled substance," and "[t]here is insufficient evidence that [he] manufactured, delivered or possessed a controlled substance with intent to deliver it, only evidence that he possessed the container in the vehicle."
"Deliver" means to transfer, actually or constructively, a controlled substance to another. See Tex. Health & Safety Code § 481.002(8). Intent to deliver a controlled substance can be established through circumstantial evidence including the quantity of drugs, the manner of packaging, and the presence of the accused in a known drug house. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.). Other circumstantial evidence includes the presence of large amounts of money, drug use by defendant, and the presence of records or other evidence of drug transactions. See Smith v. State, 737 S.W.2d 933, 941 (Tex. App.-Dallas 1987, pet. ref'd). Intent to deliver is a question of fact that is resolved by the jury, and may be inferred from acts, words, or conduct of the accused. Id.
The evidence at trial established that while Mangiafico fled the police, he was in exclusive possession of the substance containing GHB, which consisted of a clear syrup-like liquid stored in a 2-liter RC Cola bottle that was in plain view in the front passenger seat of Mangiafico's vehicle. After Mangiafico collided with the concrete barrier and stopped his vehicle, Mangiafico told Trooper Diaz the substance was liquid protein he got from a buddy and that he and his son take it after working out.
The jurors were free to place whatever value they wished upon Trooper Diaz's testimony regarding Mangiafico's statement. See Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000).
The substance containing GHB totaled 2,253.95 grams, an amount that Detective Joe Arp, an experienced narcotics officer, testified reflected an intent to deliver, if considered in combination with a defendant's flight in an attempt to evade arrest. Detective Arp also testified that, generally speaking, GHB is dosed in capfuls, and about a half-cap or a half-gram will bring on relaxation, a whole gram or a whole cap may bring lower inhibitions and may increase libido a bit, and two to three grams generally is going to bring about a deep sleep. Finally, in explaining his opinion that the amount recovered appeared to be a dealer amount, he stated, in part, that "it is just simply mathematics. You have got 2,200 grams. You know, even- even conservatively speaking, if a person uses three grams a day just to sleep, that's two year's worth if you use it every day."
See Biggers v. State, 634 S.W.3d 244, 253 (Tex. App.-Texarkana 2021, pet. ref'd) ("Expert testimony by experienced law enforcement officers may be used to show intent to deliver.") (citing Mack v. State, 859 S.W.2d 526, 529 (Tex. App.-Houston [1st Dist.] 1993, no pet.)).
Viewing the evidence in the light most favorable to the verdict, and based on the rational inferences the jury could make from the quantity of GHB, Mangiafico's possession and admitted use of the substance, and Mangiafico's conduct in evading arrest or detention with a vehicle, we conclude a rational trier of fact could have found beyond a reasonable doubt that Mangiafico possessed the GHB with intent to deliver it and thus conclude the evidence is sufficient to support his conviction under Texas Health and Safety Code § 481.112(f). See Taylor, 106 S.W.3d at 831 (quantity of drug can be circumstantial evidence of intent to deliver); Smith, 737 S.W.2d at 941 (drug use by defendant can be circumstantial evidence of intent to deliver, and intent to deliver is a question of fact resolved by the jury and may be inferred from acts, words, or conduct of the accused); Biggers, 654 S.W.3d at 254 (finding evidence was sufficient to support jury's determination that appellant possessed methamphetamine with the intent to deliver it, and stating that "[w]hile there was no evidence that [appellant] was in possession of cash or whether he used drugs, "[t]he number of factors present is not as important as the logical force the factors have in establishing the elements of the offense"). We overrule Mangiafico's third issue.
B. Denial of Motion to Dismiss the Indictments
In his fourth issue, Mangiafico argues the trial court erred in denying his motion to dismiss the indictments, a motion premised on the claimed disadvantage caused Mangiafico by the undisputed receipt and review by an investigator for the district attorney's office of at least a portion of legal mail Mangiafico addressed to his counsel. The trial court denied Mangiafico's motion after viewing the information the investigator received and reviewed and hearing testimony from both the investigator and a prosecutor about the surrounding circumstances.
On appeal, Mangiafico argues that granting the motion was "the only pretrial remedy available to adequately enforce [his] constitutional rights in legal mail" and to protect him from government and law enforcement misconduct and overreach.
1. Review Standards
We review a trial court's ruling on a motion to dismiss a charging instrument for an abuse of discretion. See State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 1998); State v. Hill, 558 S.W.3d 280, 284 (Tex. App.-Dallas 2018, no pet.) (op. on remand). There is no general authority that permits a trial court to dismiss a case without the prosecutor's consent. State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). A trial court may dismiss a charging instrument to remedy a constitutional violation, but such dismissal is "a drastic measure only to be used in the most extraordinary circumstances." Id. at 817 (citing State v. Frye, 897 S.W.2d 324, 330 (Tex. Crim. App. 1995)). Where there is no constitutional violation, or where the defendant's rights were violated but dismissal of the indictment was not necessary to neutralize the taint of the unconstitutional action, the trial court abuses its discretion in dismissing the indictment without the consent of the State. Mungia, 119 S.W.3d at 817; Hill, 558 S.W.3d at 284.
2. Analysis
In Murphy v. State, 112 S.W.3d 592, 602 (Tex. Crim. App. 2003) (en banc), the court stated, "The State's intrusion into the attorney-client relationship violates a defendant's constitutional right to counsel when the defendant is prejudiced by the violation." The record reveals no prejudice here. As indicated, the trial court denied Mangiafico's motion after viewing the information the investigator received and reviewed and hearing testimony from both the investigator and a prosecutor about the surrounding circumstances. The investigator testified that he received the letter by email, scanned three lines of it, scrolled back up because something was "not clicking," and when he did so, he saw "legal," "immediately shut it down," contacted the prosecutor to let him know he accidentally received some legal mail, and deleted the email and did not open it again after being instructed to delete it by the prosecutor's office and after defense counsel was notified. The prosecutor testified he contacted defense counsel and informed defense counsel that his investigator had opened and read three lines of jail mail Mangiafico had sent to his counsel. The prosecutor testified he never saw the email or letter, had not had discussions with anyone about its content, and had not prepared for anything different in terms of trial strategy since the day he learned about this and had notified defense counsel.
We have not reviewed this information, as the record does not contain it. On July 19, 2023, we stated that it was necessary for this Court to review this information, and we ordered the trial court's official court reporter to prepare, certify, and file in our Court, under seal, a supplemental reporter's record containing Defendant's Exhibit Numbers 4 and 5 by no later than July 28, 2023. See Tex. R. App. P. 9.10(g) (regarding sealed records); id. 34.6(d) (allowing appellate court to direct the official court reporter to prepare, certify, and file in the appellate court a supplemental reporter's record containing the omitted items). In light of our conclusion on this issue, it is not necessary for us to review this information, and we therefore vacate our July 19, 2023 order.
We conclude the trial court did not abuse its discretion in denying the motion to dismiss because the record lacks any indication Mangiafico was prejudiced or that the proceedings were adversely tainted by the intrusion into the attorney-client privilege. See Murphy, 112 S.W.3d at 603 (concluding evidence reflected no prejudice to appellant and that appellant was not entitled to reversal when evidence reflected no prejudice to appellant the proceedings were not adversely tainted by the intrusion into the attorney-client privilege).
We vacate our July 19, 2023 order and overrule Mangiafico's fourth issue.
C. Rulings Regarding GHB
In his fifth through seventh issues, Mangiafico claims the trial court erred in overruling various objections and denying certain requests regarding the alleged controlled substance, GHB. Specifically, he claims the trial court erred in denying his motion to suppress the alleged GHB, which he claims was obtained through an illegal search and seizure (fifth issue); overruling his objection to the chain of custody for the alleged GHB (sixth issue); and denying his requested jury instruction on the legality of the search and seizure of the alleged GHB (seventh issue).
1. Denying Motion to Suppress GHB
In his fifth issue, Mangiafico's brief states:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS AND OBJECTION TO THE ILLEGAL SEARCH AND SEIZURE OF THE ALLEGED CONTROLLED SUBSTANCE, GHB, IN A BOTTLE
Although Mangiafico's brief is not entirely clear in this regard, we construe his fifth issue as complaining that the trial court erred in denying his motion to suppress certain evidence-specifically, State's exhibits three through eight-on the theory that they depict an illegal search and seizure, or material recovered in a search and seizure that he contends was not a lawful inventory search.
An inventory search is a well-defined exception to the warrant requirement of the Fourth Amendment. Colorado v. Bertine, 479 U.S. 367, 371 (1987).
In his brief on this issue, he quotes portions of his counsel's arguments and the trial court's statements in the trial court's hearing on this issue and includes a lengthy quote regarding inventory searches from State v. Cook, 389 S.W.3d 376, 380 (Tex. App.-Texarkana 2012, no pet.), but he fails to cite to any record evidence, fails to apply Cook to the facts before us, and makes only a conclusory argument that the trial court abused its discretion in overruling his motion to suppress.
The State argues that Mangiafico inadequately briefed this issue and that, in any event, Mangiafico's argument that the GHB was not seized as part of a legal inventory search lacks merit. For purposes of this appeal, we assume but do not decide Mangiafico's briefing on this issue was sufficient.
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, where fact findings are reviewed for abuse of discretion and applications of law are reviewed de novo. State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019). We will sustain a trial court's application of the law if it is correct on any applicable theory and is reasonably supported by the record. Id. When supported by the record, we give near total deference to the trial court's determinations of historical fact and to mixed questions of law and fact that turn on witness credibility. See State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). We review de novo questions of law and other applications of law to fact. Id. "At a suppression hearing, the trial judge is the sole judge of the witnesses' credibility and the weight given their testimony" and "[t]he trial judge may accept or reject any or all of the witnesses' testimony, including the defendant's." Trujillo v. State, 952 S.W.2d 879, 880 (Tex. App.-Dallas 1997, no pet.).
In Trujillo, we also stated the following as to inventory searches:
Inventories are routine, administrative, caretaking functions. . . . The policies behind the inventory search are to protect the owner's property while it is in police custody, to protect the police from claims or disputes over lost or stolen property, and to protect the police and public from potential danger. . . . The Fourth Amendment requires only that
the inventory not be a ruse for a general rummaging to discover incriminating evidence. . . . Police may open closed containers within closed containers so long as it is done in accordance with standardized procedures, when there is no showing that the police acted in bad faith or for the sole purpose of investigation. . . . Inventories conducted pursuant to standard police department policy are reasonable under the Fourth Amendment.Id. at 882 (internal citations omitted).
In the hearing on Mangiafico's motion to suppress, Trooper Diaz testified about his department's inventory policy, which requires him to inventory a vehicle whenever a vehicle is going to be towed and whenever a crime has been committed with a vehicle, as was the case here. He also testified that, as he typically does on all drugs seized pursuant to an inventory search, he seized the clear, thick liquid- which was suspected to contain, and later determined to contain GHB-and sent it to the crime lab. Based on the record before us, and keeping in mind that a trial judge at a suppression hearing is the sole judge of the witnesses' credibility and the weight given their testimony, see Trujillo, 952 S.W.2d at 880, we conclude the trial court did not err in denying Mangiafico's motion to suppress. To the extent Mangiafico relies on Cook as support, we find it distinguishable. Unlike in this case, the trial court in Cook granted the defendant's motion to suppress after the court heard and expressed concerns about the officers' testimony regarding the search and seizure, and at the time the vehicle was impounded and not released, two vehicle occupants were present, only one of whom was arrested. See Cook, 389 S.W.3d at 381-82. We overrule Mangiafico's fifth issue.
2. Overruling Chain of Custody Objection
In his sixth issue, Mangiafico's brief states:
THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S OBJECTION TO THE CHAIN OF CUSTODY TO THE ADMISSION INTO EVIDENCE OF THE ALLEGED GHB
Although Mangiafico's brief is not entirely clear in this regard, we construe his sixth issue as complaining that the trial court erred admitting, over his chain-of-custody objection, State's exhibits eleven, twelve, and thirteen, three exhibits that consist, in reverse order, of the RC Cola bottle Trooper Diaz took to the crime lab and the two bottles into which Trooper Diaz then poured the contents of the RC Cola bottle, per an instruction he received at the crime lab.
We review a trial court's decision to admit or exclude evidence for abuse of discretion. See Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Beham, 559 S.W.3d at 478; Gonzalez, 544 S.W.3d at 370.
In Simmons v. State, No. 05-11-01267-CR, 2013 WL 1614114, at *6 (Tex. App.-Dallas Feb. 20, 2013) (mem. op., not designated for publication), we stated:
A chain of custody is sufficiently authenticated when the State establishes the beginning and the end of the chain, particularly when the chain ends at a laboratory. Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). Absent proof of tampering, most problems with the chain of custody do not affect the admissibility of evidence, but rather go to the weight of the evidence. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). The State need only prove the beginning and end of the chain of custody; it
is not required to show a moment-by-moment account of the location of evidence from the time of seizure. Shaw v. State, 329 S.W.3d 645, 654 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd).
Although Mangiafico cites cases that contain some of these general standards, he does not cite to any of the evidence in the record when discussing this issue and does not apply any cases he cites to the record before us. Instead, without mentioning the specific evidence he claims the trial court erred in admitting, Mangiafico argues, in conclusory fashion:
[T]he chain of custody [for the alleged GHB] fails because the evidence does not support [1] a proper and legal initial acquisition of the [GHB] and [2] a proper undisturbed end of the chain to the lab and then to the court as evidence. There is [3] no proper tagging for identification and [4] the liquid in the bottle [which later tested positive for GHB] was tampered with or altered by pouring into a separate container. The abuse of discretion reversibly harmed [Mangiafico's] right to a fair trial.
We have added the bracketed numbers in the quoted information so that we may more easily discuss the four conclusory arguments Mangiafico makes in connection with his sixth issue. We reject each of them, but for different reasons.
Mangiafico's first argument appears to be essentially the same as the argument he made, and that we overruled, in connection with his fifth issue. That is, both his fifth and sixth issues appear to be premised on the same underlying argument: that the trial court should not have allowed evidence of the substance containing GHB because it was not legally acquired. We have already rejected this premise in connection with his fifth issue, and we do so in connection with his sixth issue as well. Because the record shows the RC Cola bottle was obtained as part of a lawful inventory search, we cannot conclude the trial court erred in admitting State's exhibits eleven, twelve, and thirteen into evidence based on Mangiafico's theory that the RC Cola bottle was illegally obtained.
We discuss Mangiafico's second, third, and fourth arguments together. Because he did not raise these arguments in the trial court, we conclude Mangiafico did not preserve these arguments for appellate review. "Generally, error must be presented at trial with a timely and specific objection, and any objection at trial which differs from the complaint on appeal preserves nothing for review." Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990) (citations omitted). A timely, specific objection and ruling by the trial court, or refusal to rule, is generally required in order to preserve a complaint for appellate review. See Tex. R. App. P. 33.1(a)(1)- (2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). "The two main purposes of requiring a specific objection are to inform the trial judge of the basis of the objection so that he has an opportunity to rule on it and to allow opposing counsel to remedy the error." Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). The party's complaint on appeal must comport with the objection made at trial. Id. In determining whether a complaint on appeal does so, we look to the context of the objection and the shared understanding of the parties at the time. Id.
Here, the second, third, and fourth arguments Mangiafico makes in connection with his sixth issue on appeal do not comport with his objection in the trial court, as he made no argument below that the State had failed to prove the end of the chain of custody (his second argument), that Trooper Diaz had "tampered" with the liquid substance containing GHB by pouring the liquid from the RC Cola bottle into the two other bottles at the crime lab (his fourth argument), or that the three bottles were improperly tagged (his third argument). Moreover, not only did Mangiafico not raise these arguments in the trial court, he appeared to concede in the trial court that the State had, in fact, properly proven the end of the chain of custody and that the three bottles admitted as State's exhibits eleven, twelve, and thirteen were properly tagged.
Mangiafico's counsel stated to the trial court,
[C]ase law states that they have to prove the first and last [parts of the chain of custody]. Anything in the middle goes to weight, not admissibility.
They have clearly proven the last. Officer Diaz is the one who took it from the lab, came here, showed and proved up the initials, and there is no objection there.
We overrule Mangiafico's sixth issue.
3. Denying Requested Jury Instruction
In his seventh issue, Mangiafico argues the trial court erred by refusing to submit a jury instruction pursuant to Texas Code of Criminal Procedure article 38.23, which provides, in pertinent part:
(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then
and in such event, the jury shall disregard any such evidence so obtained.Tex. Code Crim. Proc. art. 38.23(a).
We review claims of jury-charge error first for error. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If we find error, we then review for harm. Id. A trial court must give an article 38.23(a) instruction to the jury when the evidence raises an issue of disputed fact that is material to the appellant's claim of a constitutional or statutory violation that would render the evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). But when the evidence does not raise a disputed fact issue, the trial court does not err by refusing to give the instruction to the jury. Id. at 510. The disputed fact issue must be created by "affirmative evidence." Id. at 513. When "the issue raised by the evidence at trial does not involve controverted historical facts, but only the proper application of the law to undisputed facts, that issue is properly left to the determination of the trial court." Robinson v. State, 377 S.W.3d 712, 719-20 (Tex. Crim. App. 2012) (dispute about whether "a driver is legally required to signal at [a particular] confluence of the roadways" is not a fact issue, but "conflicting testimony before the jury with regard to the physical character of the roadway" would be); see also Balentine v. State, 71 S.W.3d 763, 773 (Tex. Crim. App. 2002) ("A trial court is required to include an Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained.").
Here, the jury heard no information to dispute Trooper Diaz's testimony that the GHB was obtained in an inventory search, making the question regarding whether it was an inventory search a legal question, not a fact question, and as a result, we conclude the trial court did not err in denying Mangiafico's request for an article 38.23 jury instruction. See Madden, 242 S.W.3d at 510 (trial court properly refuses request when no issue raised by evidence requires article 38.23 jury instruction); Garza v. State, 126 S.W.3d 79, 86 (Tex. Crim. App. 2004) (legality of search or arrest is question of law, not fact, when essential facts concerning search or arrest not in dispute); Rubens v. State, No. 05-05-01067-CR, 2008 WL 2469271, at *4 (Tex. App.-Dallas June 20, 2008, pet. ref'd) (not designated for publication) (stating "the evidence heard by the jury must raise an issue of fact" when describing the first of three requirements a defendant must meet before he is entitled to an article 38.23(a) instruction). Finding no error, we need not perform a harm analysis. See Kirsch, 357 S.W.3d at 649. We overrule Mangiafico's seventh issue.
Rubens also states, "The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct" and explains, "if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence." 2008 WL 2469271, at *4.
D. Penal Code § 38.04
In his eighth issue, Mangiafico argues that his conviction in cause number 296-82188-2020 as a third degree felony, as opposed to a state jail felony, was an incorrect application of Texas Penal Code § 38.04. He asks that we "review this issue and rule the amendment providing for a [s]tate [j]ail felony rather than a third degree felony is the correct application of the Section 38.04 Texas Penal Code" in this case.
Mangiafico does not explain why he believes the offense should be a state jail felony rather than a third degree felony under the facts of this case. Instead, he simply notes the passage in 2011 of two amendments to § 38.04, which he describes as irreconcilable, and quotes, but without attribution, various passages from Valdez v. State, No. 09-22-00148-CR, 2022 WL 17481077, at *1 (Tex. App.-Beaumont Dec. 7, 2022, no pet.) (mem. op., not designated for publication) and Watkins v. State, No. 09-19-00123-CR, 2021 WL 2611760, at *7 (Tex. App.-Beaumont Jan. 27, 2021, pet. denied).
As the State argues, we previously decided that when the accused uses a motor vehicle in his flight-as the jury concluded Mangiafico did here-the offense of evading arrest or detention is a third degree felony, regardless of whether the accused has a prior conviction for evading arrest or detention. See Jones, 600 S.W.3d at 97 ("Because appellant used a motor vehicle in his flight, the offense is a third-degree felony regardless of whether he had a prior conviction for evading arrest or detention."); Allgood v. State, No. 05-17-00875-CR, 2018 WL 3868157, at *2-3 (Tex. App.-Dallas Aug. 15, 2018, no pet.) (mem. op., not designated for publication) ("The offense of evading arrest or detention, when the accused uses a motor vehicle in his flight, is a third degree felony, regardless of whether the accused has a prior conviction for evading arrest or detention."); Jackson v. State, Nos. 05-15-00414-CR & 05-15-00415-CR, 2016 WL 4010067, at * 7 (Tex. App.-Dallas July 22, 2016, no pet.) (mem. op., not designated for publication). Our conclusion on this issue comports with many of our other sister courts. See Jackson, 2016 WL 4010067, at *7 n.1 (citing cases).
See also Fulton v. State, 587 S.W.3d 76, 77-78 (Tex. App.-San Antonio 2019, no pet.); Darby v. State, No. 06-15-00042-CR, 2015 WL 6559205, at *8-9 (Tex. App.-Texarkana, Oct. 30, 2015, no pet.) (mem. op., not designated for publication); Warfield v. State, No. 03-15-00468-CR, 2017 WL 2628563, at *11-12 (Tex. App.-Austin, June 14, 2017, pet. ref'd) (mem. op., not designated for publication); Rodriguez v. State, No. 08-18-00053-CR, 2019 WL 3283314, at *3 (Tex. App.-El Paso, July 22, 2019, no pet.) (not designated for publication): Jones v. State, No. 10-13-00410-CR, 2014 WL 4629050, at *2 (Tex. App.-Waco, Sept. 11, 2014, pet. ref'd) (mem. op., not designated for publication).
Mangiafico provides us no reason to conclude his conviction in cause number 296-82188-2020 should have been a state jail felony rather than a third degree felony under Texas Penal Code § 38.04.
We overrule Mangiafico's eighth issue.
E. Alleged Judicial Bias
In his ninth issue, Mangiafico asks that we reverse the judgments, remand the cases for a new punishment hearing, and order the trial judge recused from the new punishment hearing, on the theory that the trial judge was biased and deprived Mangiafico of a neutral and detached judge, as reflected by certain comments the trial judge made during the punishment hearing.
1. Error Preservation
Before we turn to the specific comments about which Mangiafico complains, we note that Mangiafico did not object to the comments in the trial court. The parties fail to discuss whether this has any impact on appeal. But we need not decide any question about such impact, if any, because for purposes of this appeal, we assume Mangiafico may challenge the trial court's comments by demonstrating fundamental error, an argument Mangiafico makes in his appellate brief in this appeal. See Nelson v. State, No. 05-18-00938-CR, 2019 WL 2121051, at *2 (Tex. App.-Dallas May 15, 2019, no pet.) (mem. op., not designated for publication) (in light of Proenza, court assumed, without deciding, that a defendant was not required to object to the trial court's questions in order to raise his complaint on appeal). Moreover, considering our conclusion below regarding the trial court's comments, even if the parties had raised a question regarding error preservation, we would not need to decide it. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).
In his appellate brief, Mangiafico argues the trial court "committed reversible error of a fundamental and structural nature by acting as an adversarial advocate against him."
Proenza v. State, 541 S.W.3d 786, 801 (Tex. Crim. App. 2017) ("[W]e believe that the right to be tried in a proceeding devoid of improper judicial commentary is at least a category-two, waiver-only right.")
Like Mangiafico, the appellant in Brumit failed to object below to the trial court's comments, and the Texas Court of Criminal Appeals briefly discussed the preservation of error issue that may exist under such circumstances. Brumit, 206 S.W.3d at 644-45. After noting Brumit's fundamental error argument, id. at 644, the court stated, "We need not decide today whether an objection below is required to preserve an error of this nature on appeal because the record here does not reflect partiality of the trial court or that a predetermined sentence was imposed." Id. at 644-45. Thus, in this case, we need not decide whether Mangiafico was required to object to the comments in the trial court, considering our conclusion below regarding the trial court's comments. See id.; Noble v. State, No. 05-21-00326-CR, 2022 WL 17351908, at *13 (Tex. App.-Dallas Dec. 1, 2022, pet. ref'd), cert. denied, No. 22-980, 2023 WL 3571532 (U.S. May 22, 2023). ("We need not determine whether the alleged error requires an objection . . . because, after reviewing the record, we find no apparent bias or partiality.").
2. Review Standards
When an appellant claims judicial bias, we review the record to see if it shows the judge's bias denied the appellant due process of law. Wilson v. State, No. 05-12-00831-CR, 2013 WL 4399193, at *6 (Tex. App.-Dallas Aug. 15, 2013, no pet.) (mem. op., not designated for publication); Armstrong v. State, No. 05-10-01245-CR, 2011 WL 6188608, at *5 (Tex. App.-Dallas Dec. 14, 2011, no pet.) (mem. op., not designated for publication). To reverse a judgment on the ground of improper conduct or comments of the judge, we must find (1) that judicial impropriety was in fact committed, and (2) probable prejudice to the complaining party. Allison v. State, No. 05-22-00412-CR, 2023 WL 4229541, at *2 (Tex. App.-Dallas June 28, 2023, no pet. h.) (mem. op., not designated for publication).
A defendant has a due process right to a fair trial in a fair tribunal. In re Murchison, 349 U.S. 133, 136 (1955); see also U.S. Const. amend. XIV; Tex. Const. art. I, § 19. Due process requires that a criminal trial be held before a neutral and detached hearing body or officer. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit, 206 S.W.3d at 645. A "neutral and detached" judge is not synonymous with a silent observer. Marshall v. State, 297 S.W.2d 135, 136-37 (Tex. Crim. App. 1956). A defendant is entitled to a fair trial before a judge with no actual bias against him or interest in the outcome of his particular case. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997).
Normal expressions of impatience, dissatisfaction, annoyance, and even anger do not establish bias or partiality. Liteky v. U.S., 510 U.S. 540, 555-56 (1994). "A judge's ordinary efforts at courtroom administration-even a stern and short-tempered judge's ordinary efforts at courtroom administration-remain immune." Id. at 556. Absent a clear showing of bias, a trial court's actions will be presumed to have been correct. Brumit, 206 S.W.3d at 645.
"Bias" does not encompass all unfavorable rulings toward an individual in his or her case but instead connotes "a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . ., or because it is excessive in degree." Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.-San Antonio 2007, pet. ref'd) (stating this for the terms "bias" and "prejudice") (citing Liteky, 510 U.S. at 550).
Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Brumit, 206 S.W.3d at 645. Rather, judicial remarks may suggest improper bias if they reveal an opinion deriving from an extrajudicial source. Id. But when no extrajudicial source is alleged, such remarks will constitute grounds for reversal only if they reveal such a high degree of favoritism or antagonism as to make a fair judgment impossible. Id. Even then, to constitute bias clearly on the record, the deep-seated antagonism must be apparent from the judicial remarks themselves, without "interpretation or expansion" by an appellate court. Gaal v. State, 332 S.W.3d 448, 457 (Tex. Crim. App. 2011).
3. Trial Judge's Comments
Mangiafico complains of five comments the trial judge made during the punishment phase, which he claims "raised the issue of judicial bias." We include information from the record that shows the context in which these comments were made, and we italicize the five comments at issue. After both sides rested and closed the evidence, the following exchange occurred:
While we quote the comments and their surrounding context in the main body of our opinion, generally, Mangiafico complains about the trial court's comments (1) stating Mangiafico "changed from maybe a thief into a drug dealer;" (2) stating "there is a limit where the system has, well, tried everything that it can and can't get somebody's attention enough to follow the fricking rules;" (3) stating Mangiafico "probably said the same thing at [his prior] sentencing;" (4) referring to Mangiafico as "a liar without any responsibility, without any remorse about anything, about his entire criminal episode for his life;" and (5) stating, after sentences were pronounced, "Mangiafico, you are a piece of work, get out of my face."
THE COURT: Closing argument by the State?
[PROSECUTOR]: I will be brief. I think the evidence has shown that he is a career criminal. He is a perennial liar. He has lied over and over and over again in the commission of these offenses.
He has already been sentenced to 40 years previously and was let out in four. Why, I don't know. But anyway, I think that he needs a really stiff sentence this time, and I am going to ask the Court to consider a 75-year sentence; and if you can't consider that, I would ask the Court not to go lower than 60.
THE COURT: Okay. What says the Defense?
[DEFENSE COUNSEL]: Your Honor, thank you.
. . . .
It is true that he has a criminal history. We have not denied it. . . .
. . . .
Judge, in regards to the State's concern about him being released due to the nature of the second degree felony, the enhancement of the evading arrest with a deadly weapon, we anticipate that his - we are requesting a 20-year sentence on that, which is the max. And . . . . we would request on the first degree felony to be maxed at 20 as well. This will give him a significant time more than what he did on his prior. . . .
And so for that reason, we would request that sentence, and it also gives him the ability to rehabilitate and get out -
THE COURT: We tried that, though. And see, that's the thing that I am getting hung up on. He got a 40-year sentence. And if you were to give me a 40-year sentence, I would fall over dead. And for whatever reason I got out after four years, I would think it was a gift from God and I would have changed my life and done everything different and tried to give back and do something for something; but not this guy. This guy keeps doing it.
[DEFENSE COUNSEL]: And I agree, Judge, and that's why -
THE COURT: And now he has, by the way, changed from maybe a thief into a drug dealer.
[DEFENSE COUNSEL]: Yes, sir, I -
THE COURT: That's what the verdicts all say.
[DEFENSE COUNSEL]: That's what the verdict is. There is no argument as to that. However, he has no criminal history about drugs. He has no past or no evidence of who his clients were. I'm not saying he didn't because the jury came back and they found it true. I am not arguing the fact that they did that. They certainly did and that is their right. And while we disagree, we respect their time and their consideration.
But it goes to your point, Judge. Minimum, he is going to have to do double the time; double the time that he did on the 40.
THE COURT: I understand how all of the math works, but my point is, in response to you, is give him a chance to rehab. I mean, shoot, maybe I can - I think it was after 2010, he pled guilty. All along the way, he pled guilty. He got plenty of chances to take the opportunity to rehab himself and do something, and he chose every single time to be the selfish person he seems to be and do whatever the hell he wants to with very limited penalty for doing it.
[DEFENSE COUNSEL]: Yes, sir. However, when he is released on this, he will be in his late sixties, early seventies. He will not be a young man or a middle age man with a future ahead of him. The road is mostly behind him at that point, and so he will be at a different phase and a different stage of his life. He will no longer be this person who is peaking but has already peaked and is on the downslide.
THE COURT: Or you could say desperate, the last years of his life, and do what he only knows how to do, which is to rip people off.
[DEFENSE COUNSEL]: And, Your Honor, that's what we - I have faith in our criminal system. I mean, I think as a defense attorney, that's the only way to believe in people is to believe in the good, to believe -
THE COURT: And, [defense counsel], you know me, and you have known me long enough. I will give people chances and chances and chances and I will give them all of the help that they need to get it done and rehab themselves. I think I - I think I am very fair in that way. But there is a limit where the system has, well, tried everything that it can and can't get somebody's attention enough to follow the fricking rules. And I think we may be here.
[DEFENSE COUNSEL]: And, Your Honor, that's why we are requesting a max sentence on the evading.
THE COURT: I will give you that.
[DEFENSE COUNSEL]: We are not requesting a low sentence or a soft sentence in any way, and I think 75 years is far too much. I think that's not even in the realm of reasonableness. And I think due to the nature of the second degree felony, he is going to be incarcerated for the majority of his life-for the rest-for the majority of the rest of his life, he is going to be in jail.
THE COURT: All I'm telling you, if he got a 40-year sentence, he probably said the same thing at that sentencing; hey, listen, he will be an old guy by the time this is done, and he got a gift from somebody of four years and he squandered it by squandering other people, and then running from police and putting all of those people in danger and then having a 2-liter bottle of GHB in the car, and a liar without any responsibility, without any remorse about anything, about his entire criminal episode for his life, and that I don't like.
The State then made its final argument, and in it the State detailed Mangiafico's extensive criminal history and asked, in cause number 296-85043-2019, for a sentence of life or a minimum of 60 years' confinement.
After the State's final argument concluded, the trial court noted the jury's finding of a deadly weapon in cause number 296-82188-2020, made an affirmative finding of a deadly weapon in that case, and then pronounced sentence in both cases. The trial court then concluded the proceedings by stating, "Mangiafico, you are a piece of work, get out of my face."
4. Analysis
As we stated above, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Brumit, 206 S.W.3d at 645. Rather, judicial remarks may suggest improper bias if they reveal an opinion deriving from an extrajudicial source. Id. However, when no extrajudicial source is alleged, such remarks will constitute grounds for reversal only if they reveal such a high degree of favoritism or antagonism as to make a fair judgment impossible, id., and to constitute bias clearly on the record, the deep-seated antagonism must be apparent from the judicial remarks themselves, without "interpretation or expansion" by an appellate court. Gaal, 332 S.W.3d at 457.
After reviewing the record, as we must, see Wilson, 2013 WL 4399193, at *6; Armstrong, 2011 WL 6188608, at *5, we conclude the trial court's comments do not reveal an opinion deriving from an extrajudicial source or such a high degree of favoritism or antagonism as to make a fair judgment impossible. See Brumit, 206 S.W.3d at 645. We overrule Mangiafico's ninth issue.
To the extent that Mangiafico argues the first challenged comment regarding him possibly being a "drug dealer" reveals an opinion deriving from an extrajudicial source, we reject the argument, both because of the nature of the charges for which the jury had already found Mangiafico guilty and because his counsel replied, "That's what the verdict is," after the trial court referred to Mangiafico possibly being a "drug dealer" and stated, "That's what the verdicts all say."
F. Requested Modifications to Judgment
Finally, we consider the parties remaining two issues, both of which involve requests that we modify the judgments in certain respects. We may modify the trial court's judgment to make the record speak the truth when we have the necessary information to do so. Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27- 28 (Tex. Crim. App. 1993) (en banc) (refusing to limit the authority of the courts of appeals to reform judgments to only those situations involving mistakes of a clerical nature); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
1. Judgment in Cause Number 296-85043-2019
In his tenth issue, Mangiafico argues that we should modify the portion of the judgment in cause number 296-85043-2019 that describes the offense for which he was convicted. Specifically, he argues that portion of the judgment should state "possession with intent to deliver a controlled substance 400 grams or more" instead of stating "manufacture/delivery," per his description. As support, he refers to the indictment and judgment in cause number 296-85043-2019 but cites no cases, statutes, or other authority to show the trial court's alleged error.
The State argues no modification is needed because the judgment correctly reflects the offense for which Mangiafico was convicted.
The judgment in cause number 296-85043-2019 states, in part:
(Image Omitted)
The text Mangiafico seeks to remove from the judgment ("MAN DEL CS PG1>=400G") is identical to text used in the indictment, which states, in the top right corner:
CHARGE MAN DEL CS PG 1 >=400G Felony Unassigned 481.112(f)
The indictment also states, in part:
Robert Joseph Jr Mangiafico HEREINAFTER CALLED DEFENDANT on or about the 18th day of September, 2019 in said county and State, did then and there intentionally and knowingly possess, with intent to deliver a controlled substance, namely, Gamma Hydroxybutryic Acid, in an amount of 400 grams or more;
Texas Health and Safety Code § 481.112 is entitled "Offense: Manufacture or Delivery of Substance in Penalty Group 1" and states, in part:
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance listed in Penalty Group 1.
. . . .
(f) An offense under Subsection (a) is punishable by imprisonment in the [TDCJ] for life or for a term of not more than 99 years or less than 15 years, and a fine not to exceed $250,000, if the amount of the controlled substance to which the offense applies is, by aggregate weight, including adulterants or dilutants, 400 grams or more.Tex. Health & Safety Code § 481.112(a), (f).
Subsections (e) and (f) of § 481.112 were amended effective September 1, 2023, and the amendments-which do not apply here-apply only to an offense committed on or after that date. See Act of June 17, 2023, 88th Leg., R.S., ch. 910, §§ 4, 23, 25, sec. 481.112, 2023 Tex. Sess. Law Serv. (section 4 to be codified at Tex. Health & Safety Code § 481.112). The indictment alleges Mangiafico committed an offense under § 481.112 on or about September 18, 2019; thus, we quote the language in effect at the time of the alleged offense, which remained in effect at the time Mangiafico was indicted.
Lopez v. State, 108 S.W.3d 293, 297 (Tex. Crim. App. 2003) states, "[T]here are at least five ways to commit an offense under § 481.112: through knowing 1) manufacture; 2) an offer to sell; or 3) possession with intent to deliver; or through knowing delivery by 4) actual transfer; or 5) constructive transfer." Citing Lopez as support, the State argues possession with intent to deliver is one of the methods for proving the offense of manufacture/delivery of a controlled substance under Texas Health and Safety Code § 481.112.
The State also cites Jerger v. State, Nos. 12-17-00321-CR, 12-17-00322-CR, 12-17-00323-CR, 2018 WL 4474059, at *4 (Tex. App.-Tyler Sept. 19, 2018, pet. ref'd) (mem. op., not designated for publication) and distinguishes Gonzalez v. State, No. 05-17-00225-CR, 2018 WL 360236 (Tex. App.-Dallas Jan. 11, 2018, no pet.) (mem. op., not designated for publication) to support its opposition to Mangiafico's requested modification. Below, we consider Gonzalez before considering our sister court's opinion in Jerger.
In Gonzalez, we approved the same type of modification Mangiafico requests here, but in that case, the parties agreed to it, and we did not engage in any substantive analysis on this issue. See Gonzalez, 2018 WL 360236, at *3. As the parties in this case are not in agreement, Gonzalez is thus distinguishable. See id.
We noted the State agreed and modified the trial court's judgment, in part, to reflect Gonzalez was convicted for "Possession with intent to deliver a controlled substance listed in Penalty Group 1" rather than "MANTURFACTING [sic] DELIVERY OF A CONTROLLED SUBSTANCE: TO-WIT; METHAMPHETAMINE PG1" as the judgment originally stated. Gonzalez, 2018 WL 360236, at *3.
In Jerger, our sister court analyzed arguments similar to those the parties make here and declined to modify the judgments, concluding the judgments "correctly state[d] the offense names" by describing the offenses as "manufacture or delivery of a controlled substance in penalty group 1." 2018 WL 4474059, at *4. As our sister court noted, under § 481.112(a), "a person commits the offense of manufacture or delivery of a substance in penalty group 1 if he 'knowingly manufactures, delivers, or possesses with intent to deliver' a substance in penalty group 1[,]" and thus, "possessing [a substance in penalty group 1] with intent to deliver it is one way to commit the offense of manufacture or delivery of a controlled substance in penalty group 1." See id. (citing, Lopez, 108 S.W.3d at 297, among other authorities). We agree with Jerger's analysis and adopt it here.
In Jerger, 2018 WL 4474059, at *4, the appellant "contend[ed] that the judgments should be modified to state he is guilty of 'possession of a controlled substance with intent to deliver' rather than 'manufacture or delivery of a controlled substance in penalty group 1'" while the State argued that "'manufacture or delivery of a controlled substance in penalty group 1' is the correct name of [the] offenses."
In Weinn v. State, 326 S.W.3d 189, 194 (Tex. Crim. App. 2010), the court described Lopez-which we cite above and Jerger relies upon, in part-as concluding "that the statute established alternative ways to commit a single offense of 'distribution of dangerous drugs in our society' and was designed to allow prosecution regardless of where on the continuum the perpetrator is caught." Based on Weinn and Lopez, the United States Court of Appeals for the Fifth Circuit has concluded, "under Texas law, section 481.112(a) of the Texas Health and Safety Code is indivisible and 'establishes alternative means of punishing an offense in the continuum of drug distribution.'" United States v. Tanksley, 854 F.3d 284, 285 (5th Cir. 2017) (supp. op. on petition for panel rehearing) (stating, "Without a doubt, Weinn 'definitively' establishes that § 481.112 is an indivisible statute.").
Thus, we decline to make Mangiafico's requested modification because we conclude the trial court's judgment in cause number 296-85043-2019 correctly states the offense for which he was convicted. See id. We overrule his tenth issue.
2. Judgment in Cause Number 296-82188-2020
In a cross-issue, the State argues we should modify the judgment in cause number 296-82188-2020 to remove "N/A" after the portions stating "1st Enhancement Paragraph" and "1st Enhancement Finding" and to insert, after "1st Enhancement Finding," the word "TRUE." Mangiafico has expressed no position on this cross-issue.
We agree with the State. In cause number 296-82188-2020, the trial court submitted to the jury a special issue regarding the enhancement paragraph in the indictment, and the jury answered "Yes" to the question on the verdict form asking whether the jury found beyond a reasonable doubt that Mangiafico "used or exhibited a deadly weapon, to wit: a motor vehicle, during the commission of the offense." But contrary to that finding, the portions of the judgment following "1st Enhancement Paragraph" and "1st Enhancement Finding" state "N/A."
Because we may modify the trial court's judgment to make the record speak the truth when we have the necessary information to do so, see Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d at 529-30, we conclude the trial court's judgment in trial court cause number 296-82188-2020 should be modified as follows: remove "N/A" after the portions stating "1st Enhancement Paragraph" and "1st Enhancement Finding" and insert "TRUE" after "1st Enhancement Finding."
We sustain the State's cross-issue.
IV. Conclusion
We vacate our July 19, 2023 order, affirm the judgment in cause number 296-85043-2019, and affirm the judgment in cause number 296-82188-2020 as modified above.
JUDGMENT
Based on the Court's opinion of this date, we VACATE our July 19, 2023 order, and the judgment of the trial court is AFFIRMED.
JUDGMENT
Based on the Court's opinion of this date, we VACATE our order of July 19, 2023, and we MODIFY the judgment of the trial court to remove "N/A" after the portions stating "1st Enhancement Paragraph" and "1st Enhancement Finding" and to insert "TRUE" after "1st Enhancement Finding."
As REFORMED, the judgment is AFFIRMED.