Notes Concerning Motion for a New Trial

301 - Notes Concerning Motion for a New Trial

Below is some good information that shows that the "Motion for New Trial" may be lacking some key elements to preserve the issues for the appeal.

DAVID WHITE, Appellant v. THE STATE OF TEXAS, Appellee
NO. 01-03-00264-CR
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2004 Tex. App. LEXIS 5371

June 17, 2004, Opinion Issued

To perfect an appeal from a municipal court conviction, an appellant must file a written motion for new trial with the municipal clerk setting forth the points of error of which appellant complains.

See former TEX. GOV'T CODE ANN. § 30.00679(c) 1 (now codified at id. § 30.00014(c) (Vernon 2004)).

For an appellant to preserve a point of error on an appeal from a municipal court, he must raise the identical point in his motion for new trial.

See id; Lambert v. State, 908 S.W.2d 53, 54 (Tex. App.--Houston [1st Dist.] 1995, no pet.).

In this case, appellant failed to preserve points of error four, five, six, and seven by not asserting identical grounds in his motion for new trial as he raised on appeal in the county court. Thus, appellant was not entitled to review of these points by the county court or by this Court. Lambert, 908 S.W.2d at 54.

DAVID WHITE, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-03-00264-CR

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

2004 Tex. App. LEXIS 5371

June 17, 2004, Opinion Issued

NOTICE:      [*1]  PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS. 

PRIOR HISTORY:    On Appeal from County Criminal Court at Law No. 4. Harris County, Texas. Trial Court Cause No. 5283. 

DISPOSITION:    Affirmed. 

JUDGES: Panel consists of Justices Taft, Hanks, and Higley. 

OPINION BY: Laura Carter Higley

OPINION

MEMORANDUM OPINION

Appellant, David White, was charged by complaint with failure to display a valid driver's license. Following a jury trial in municipal court, appellant was convicted and fined $ 150. Appellant appealed to the county criminal court at law, which affirmed the municipal court's judgment. Appellant brings seven points of error.

We affirm. Failure to Include Certain Points of Error in Motion For New Trial

In points of error four through seven, appellant contends that (a) the process for obtaining a driver's license impinged on his free exercise of religion (point of error four); (b) the municipal court was unlawfully created by the City of Houston (point of error five); (c) the Texas Legislature did not have authority to pass "Houston's Municipal Court of Record Act" (point of error six); and (d) the Legislature unconstitutionally [*2]  gave the city attorney's office prosecutorial authority in municipal court (point of error seven).

To perfect an appeal from a municipal court conviction, an appellant must file a written motion for new trial with the municipal clerk setting forth the points of error of which appellant complains. See former TEX. GOV'T CODE ANN. § 30.00679(c) ¹ (now codified at id. § 30.00014(c) (Vernon 2004)). For an appellant to preserve a point of error on an appeal from a municipal court, he must raise the identical point in his motion for new trial. See id; Lambert v. State, 908 S.W.2d 53, 54 (Tex. App.--Houston [1st Dist.] 1995, no pet.). In this case, appellant failed to preserve points of error four, five, six, and seven by not asserting identical grounds in his motion for new trial as he raised on appeal in the county court. Thus, appellant was not entitled to review of these points by the county court or by this Court. Lambert, 908 S.W.2d at 54.

1   Government Code section 30.269 was renumbered without substantive change in 1997 to section 30.00679, and then repealed in 1999. See Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, sec. 30.269, 1985 Tex. Gen. Laws 1720, 1867, renumbered by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 8.20, 1997 Tex. Gen. Laws 327, 391, repealed by Act of May 25, 1999, 76th Leg., R.S., ch. 691, § 139, 1999 Tex. Gen. Laws 3263, 3290. Section 30.00679 was repealed effective September 1, 1999. Act of May 25, 1999, 76th Leg., R.S., ch. 691, § 140(a), 1999 Tex. Gen. Laws 3263, 3290. Because the applicable section number at the time of the offense, the filing of appellant's motion for new trial, and his notice of appeal in the county court was section 30.00679, that is the section we reference.

 [*3]  We overrule appellant's fourth, fifth, sixth, and seventh points of error.

Defective Complaint

 In his first and second points of error, appellant contends that the complaint charging him with the offense of failure to display a valid driver's license was deficient in numerous respects.

No Reference to Statute Violated and Time of Offense

The offense of failure to display a valid driver's license is found in Transportation Code section 521.025(a). That provision states, "A person required to hold a license under [Transportation Code] Section 521.021 shall [] (1) have in the person's possession while operating a motor vehicle the class of driver's license appropriate for the type of vehicle operated; and (2) display the license on the demand of a . . . peace officer." TEX. TRANSP. CODE ANN. § 521.025(a) (Vernon 1999).

In this case, the complaint reads, in part, as follows:

On or about the 30th day of January A.D., 1999, and before making and filing of this complaint, within the incorporated limits of the City of Houston, County of Harris, and State of Texas, [appellant]  [*4]  did then and there unlawfully and knowingly fail to display a valid Texas Driver's license upon demand of . . . a peace officer; and [appellant] was operating a motor vehicle . . . [on] a public street.

Appellant argues that the complaint did not inform him of the offense of which he was being charged because it did not recite the Transportation Code section appellant was charged with violating or the time of the offense. Article 45.17 of the Code of Criminal Procedure, which was in effect at the time appellant committed the offense, required that a complaint filed in municipal court must state (1) the name of the accused, if known; (2) "the offense with which he is charged, in plain and intelligible words"; (3) that the offense was committed in the county in which the complaint is made; and (4) the date of the offense. Act of May 27, 1965, 59th Leg., R.S., ch. 722, art. 45.17, 1965 Tex. Gen. Laws 317, 524, amended and redesignated by Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 16, 1999 Tex. Gen. Laws 5314, 5317 (current version at TEX. CODE CRIM. PROC. ANN. art. 45.019 (Vernon Supp. 2004)). Article 45.17 [*5]  required neither that the complaint include the section number of the statute violated nor the time of the offense. See id.; see also Martin v. State, 13 S.W.3d 133, 140 (Tex. App.--Dallas 2000, no pet.) (holding that complaint made in municipal court was not defective for failing to state number of statutory provision defendant charged under). The complaint in this case comported with the requirements of former article 45.17.

Signed by Court Clerks

Appellant further asserts that the complaint was defective because it was improperly signed by two municipal court clerks: one signing as affiant and another swearing to the complaint. On appeal, appellant complains that the clerks' signatures affected the impartiality of the municipal court. However, in his motion for new trial, appellant complained of the clerks' signatures on two different bases: (1) that neither clerk had signed an anti-bribery oath and (2) that the complaint should have been sworn to by a magistrate or district attorney. Because he raises different grounds on appeal than he raised in his motion for new trial, we need not address appellant's complaint regarding the clerks' signatures. [*6]  See former TEX. GOV'T CODE ANN. § 30.00679(c); Lambert, 908 S.W.2d at 54.

We also note that the relevant provision of the Code of Criminal Procedure in force at the time of the offense provided that complaints filed in municipal court could be made before "any officer authorized to administer oaths or before the municipal judge, clerk of the court or his deputy." Act of May 22, 1989, 71st Leg., R.S., ch. 600, § 1, 1989 Tex. Gen. Laws 1991, 1991-92, repealed by Act of May 30, 1999, 76th Leg., R.S., ch. 1545, 75(a), 1999 Tex. Gen. Laws 5314, 5331 (current version at TEX. CODE CRIM. PROC. ANN. art. 45.019(e)). See Martin, 13 S.W.3d at 139 (holding that it is proper for municipal court clerk to sign complaint).

Failure to Negate Exception to Offense

Appellant also contends that the State failed to negate an exception to the offense, namely, that the State did not specify that appellant was not exempted from the requirement to hold a driver's license. It is well established that the State of Texas can and does require a valid driver's license for all persons operating [*7]  motor vehicles on the roads of the State. Hicks v. State, 18 S.W.3d 743, 744 (Tex. App.--San Antonio 2000, no pet.); see also Taylor v. State, 151 Tex. Crim. 568, 209 S.W.2d 191, 192 (Tex. Crim. App. 1948) (stating, "The privilege of driving a motor vehicle upon the public highways does not exist unless one has obtained a license to do so."). Here, the complaint charged appellant with failing to display a valid driver's license on demand of a peace officer, conduct prohibited by Transportation Code section 521.025. It is not necessary for a complaint charging such offense to include allegations negating the exceptions to the general requirement that a driver carry a valid driver's license. See Hicks, 18 S.W.3d at 744. Further, because no exceptions are contained within section 521.025, the complaint was not required to negate any exceptions. See Bragg v. State, 740 S.W.2d 574, 576 (Tex. App.--Houston [1st Dist.] 1987, pet. ref'd) (holding that, when exceptions to statute are placed in separate section from one defining offense, it is not necessary to negate exceptions in charging instrument).

 [*8]  Appellant further contends that the State "failed to prove" that he was a "licensee" at the time of the offense. As phrased, we interpret appellant's evidentiary challenge as a challenge to the legal sufficiency of the evidence. See Snow v. State, 994 S.W.2d 737, 739 (Tex. App.--Corpus Christi 1999, no pet.) (treating appellant's point that State failed to prove element of the offense as legal sufficiency challenge). However, in his motion for new trial, appellant asserted that the complaint was deficient because it failed to allege that appellant was a licensee. Because his appellate argument does not comport with the ground raised in his motion for new trial, appellant has waived his legal sufficiency challenge, and we need not address it. ² See former TEX. GOV'T CODE ANN. § 30.00679(c); Lambert, 908 S.W.2d at 54.

2   We also do not decide whether the State was required to allege or prove that appellant was a "licensee."

Recognition   [*9]    of "Driver's License" by State Law

Lastly, appellant contends that he could not be charged with failure to display a driver's license "because there is no such 'driver's license' known to the law." Appellant's contention is contrary to the language of the relevant statute in this case, Transportation Code section 521.025(a), which provides that a person "operating a motor vehicle" must display "the class of driver's license appropriate for the type of vehicle operated." TEX. TRANSP. CODE ANN. § 521.025(a)(1) (Vernon 1999) (emphasis added). Moreover, the Transportation Code not only recognizes the term "driver's license" but specifically defines it. See TEX. TRANSP. CODE ANN. § 521.001(a)(3) (Vernon 1999) (defining "driver's license" as "an authorization issued by the [Department of Public Safety] for the operation of a motor vehicle").

We overrule appellant's first and second points of error.

Compulsory Process

In his third point of error, appellant asserts that he was denied compulsory process because the municipal court erred in quashing his subpoenas of the two [*10]  municipal court clerks who signed the complaint. On appeal, appellant contends that he had a "preferential right to face his accusers" and to determine the validity of the clerks' signatures and "proper swearing."

Criminal defendants have a right to compulsory process for obtaining witnesses. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. However, the right to compulsory process is not absolute. Defendants have the right to secure the attendance of witnesses whose testimony would be both material and favorable to his defense. See Coleman v. State, 966 S.W.2d 525, 527-28 (Tex. Crim. App. 1998). "Were the burden of showing materiality and favorableness not placed on the defendant, 'frivolous and annoying requests could make the trial endless and unduly burdensome on the Court and all officers thereof. Id. (quoting Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983)). Accordingly, to exercise this right, the defendant must make a plausible showing to the trial court, by sworn evidence or agreed facts, that the witness's testimony would be both material and favorable to the defense. Id. at 528.

Appellant did not make such showing. At the [*11]  hearing to quash the subpoenas, appellant argued that he was entitled to question the clerks regarding their legal authority to sign the complaint, the validity of their signatures, the purported deficiencies in the complaint, and the alleged failure of the clerks to sign anti-bribery complaints. However, appellant did not demonstrate how the clerks' testimony would be material and favorable to his defense of failing to display a valid driver's license. We hold that the trial court did not err in quashing the subpoenas. See id; see also Sparkman v. State, 997 S.W.2d 660, 666 (Tex. App.--Texarkana 1999, no pet.) (holding that trial court did not err in quashing defendant's subpoenas of mayor, elected judge and staff of county court, district attorney, county clerk, attorney, and bail bondsman because defendant failed to show that witnesses would be material to his defense of driving with suspended license).

We overrule appellant's third point of error.

Conclusion

We affirm the judgment of the county court.

Laura Carter Higley

Justice