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PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.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
