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Crawford v. State

Court of Appeals of Texas, Fourth District, San Antonio

November 20, 2019

Avery B. CRAWFORD, Appellant
v.
The STATE of Texas, Appellee

          From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2017CR0602 Honorable Jefferson Moore, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

          OPINION

          LIZA A. RODRIGUEZ, JUSTICE.

         Avery B. Crawford was convicted of aggravated robbery, found to be a habitual offender, and sentenced to seventy-five years of imprisonment. On appeal, he argues the trial court erred in (1) denying his motion to quash the indictment's enhancement allegation; (2) submitting the enhancement allegation to the jury during the punishment phase; (3) overruling his objection to a commitment question; (4) overruling his objection under the Confrontation Clause during the testimony of complainant Angela Green; (5) denying his motion for mistrial; (6) overruling his hearsay objection during Deputy Sheriff Ricardo Vijil's testimony; and (7) overruling his hearsay objection to the admission of a photographic lineup. We affirm.

         Motion to Quash

         The indictment in this case contains two enhancement allegations. The first enhancement allegation states that before the commission of the underlying offense of aggravated robbery, Crawford was convicted of felony possession of a controlled substance in Cause No. 2009-CR-12408W. The second enhancement allegation states that before the commission of the underlying offense, Crawford was convicted of felony theft in Cause No. 2014-CR-4919. In his motion to quash, Crawford stated that during the discovery process in the underlying case, he obtained "a certified copy of what purports to be the underlying paperwork reflecting the conviction in Cause No. 2009-CR-12408W." He attached this underlying paperwork in Cause No. 2009-CR-12408W to his motion to quash, including (1) the Information; (2) the Waiver of Indictment, Reading of Information and Rights Under Article 1.051 and 26.03 of the Code of Criminal Procedure; and (3) the Judgment of Conviction. In his motion, Crawford complained that paragraph four of the waiver of indictment included two blanks that had not been completed: one blank that should have reflected his plea and another blank that should have reflected the date he signed the waiver. According to Crawford, these two omissions invalidate the waiver. Crawford further argues if the waiver of indictment is invalid, then the trial court in Cause No. 2009-CR-12408W never obtained jurisdiction over the case and its judgment is void. He reasons that if the judgment in Cause No. 2009-CR-12408W is void, it cannot be used for enhancement of punishment in this case.

         The Texas Constitution requires that the State obtain a grand jury indictment in a felony case unless the defendant waives that requirement. See Tex. Const. art. 1, § 10; Tex. Code Crim. Proc. Ann. art. 1.05. Article 1.141 of the Texas Code of Criminal Procedure provides the specific means of waiving one's right to trial of felony charges by indictment:

A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of any offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.

Tex. Code Crim. Proc. Ann. art. 1.141 (emphasis added); see King v. State, 473 S.W.2d 43, 46, 51 (Tex. Crim. App. 1971) (holding article 1.141 was not violative of article 1, section 10 of the Texas Constitution or violative of any federal constitutional requirements). Absent an indictment or valid waiver, a district court does not have jurisdiction over that case. See Trejo v. State, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009); Teal v. State, 230 S.W.3d 172, 174-75 (Tex. Crim. App. 2007). "For the waiver to be effective, it must be intelligently, voluntarily, and knowingly given by the accused while represented by counsel." King, 473 S.W.2d at 52. In the absence of an accused's personal, intelligent, voluntary, and knowing waiver of indictment while represented by counsel, the felony information is void, and the trial court does not have jurisdiction to try an accused upon an information in a felony case. See Lackey v. State, 574 S.W.2d 97, 100 (Tex. Crim. App. 1978); King, 473 S.W.2d at 52.

         By arguing that the judgment in Cause No. 2009-CR-12408W is void because the waiver of indictment was invalid, Crawford is bringing a collateral attack on a prior judgment of conviction. See Rhodes v. State, 240 S.W.3d 882, 887 (Tex. Crim. App. 2007). A defendant may collaterally attack a prior judgment of conviction only if he demonstrates the prior judgment is void. Id.; see Egger v. State, 62 S.W.3d 221, 224 (Tex. App.-San Antonio 2001, no pet.). As a reviewing court, "absent evidence of impropriety," we are required "to indulge every presumption in favor of the regularity of the proceedings and documents in the lower court." Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000). Thus, "the recitations in the records of the trial court, such as a formal judgment, are binding in the absence of direct proof of their falsity." Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1985) (op. on reh'g). The defendant has the burden to provide direct evidence sufficient to overcome the presumption of the formal judgment's regularity. Id. at 451.

         The judgment of conviction in Cause No. 2009-CR-12408W reflects that Crawford pled nolo contendere to possession of a controlled substance (PG 1 GRAM TO 4 GRAM), was charged by an information, and appeared in person with counsel. The judgment further reflects that the terms of Crawford's plea bargain were four years imprisonment and a $1, 500 fine and that he was sentenced on December 9, 2009 in accordance with the terms of his plea bargain. The judgment does not reflect that Crawford waived his right to be charged by indictment; however, a judgment in Texas need not reflect a waiver of indictment. See Tex. Code Crim. Proc. Ann. art. 42.01; Acosta v. State, 650 S.W.2d 827, 828-29 (Tex. Crim. App. 1983). The prior judgment thus "carries with it a presumption of regularity and truthfulness, and such is never to be lightly set aside." Breazeale, 683 S.W.2d at 450-51.

         Crawford argues that the "Waiver of Indictment, Reading of Information and Rights Under Articles 1.051 and 26.03 C.C.P." proves he did not properly waive his right to be charged by indictment because a blank for his plea was not completed and a blank for the date was not completed. As noted, for a waiver of indictment to be effective, "it must be intelligently, voluntarily, and knowingly given by the accused while represented by counsel." King, 473 S.W.2d at 52; see also Lackey, 574 S.W.2d at 100. The "Waiver of Indictment, Reading of Information and Rights Under Articles 1.051 and 26.03 C.C.P." in Cause No. 2009-CR-12408W recites that Crawford is "accused of the non-capital offense of POSS CS PG 11 GRAM to 4 GRAMS," is "represented by his/her attorney," has "been advised by his/her attorney and by the Court of the nature of the charge against his/her right not to be tried in this case except on the indictment of a Grand Jury" and "in open Court and in writing voluntarily and knowingly waives his/her right to be prosecuted by a Grand Jury indictment." The waiver further states that Crawford "announces his/her election and consent to be charged by information and waives his/her right to the filing of a complaint to support the information." The waiver continues as follows:

Now comes the defendant in this cause, joined by his attorney of record, and waives the right guaranteed to him by Article 1.051 of the C.C.P. to ten days in which to prepare for trial of this cause. Further, the defendant, joined by his attorney of record, waives the right guaranteed by Article 26.03 of the Code of Criminal Procedure to the passage of two entire days, after service of a copy of the Indictment or Information in the cause on the defendant, before arraignment.
Now comes the defendant in the above styled and numbered cause and states to the Court that he has been served with a copy of the information against him, has read and is aware of its contents and hereby waives the reading of the said information by the Court and enters his plea of ___thereto, further certifies that his true and correct name is as shown by his signature below. SIGNED this ___day of ___, A.D., 2009.

         Crawford's signature is above the line for "Defendant." The waiver further recites the following paragraph with respect to Crawford's attorney:

Now comes the undersigned attorney for the above defendant and certifies to the Court that he has explained to the defendant the accusation against him alleged in said information and his right to have the information read to him by the Court. I have explained the procedural rights guaranteed by Art. 1.051 and 26.03 C.C.P. I hereby represent to the Court that I am satisfied that said defendant understands his rights and has knowingly and voluntarily waived the reading of the information in his cause, time to prepare and indictment.

         Crawford's attorney's signature is above the line for "Attorney for the Defendant." The waiver concludes with an "ORDER" by the district court:

On this [stamp reflecting DEC 09 2009], the above named defendant having appeared before me with his/her attorney in open court, and the defendant having been fully advised of his/her rights and the nature of the charge against him/her and that he/she has a right to be prosecuted by indictment by a Grand Jury, the defendant intelligently, voluntarily and knowingly waived such right and the defendant and his/her attorney signed the foregoing written instrument in open Court, and the Court hereby approves the waiver of indictment and approves prosecution in this cause by information. The Court approves the waiver of reading of the information and waiver of time under 1.051 and 26.03 C.C.P.

         The trial judge's signature is above the line for "Judge Presiding, 186th Judicial District Court, Bexar County, Texas."

         The waiver thus recites that while represented by counsel, Crawford intelligently, voluntarily, and knowingly waived his right to be charged by indictment. See King, 473 S.W.2d at 51-52. Absent direct proof of falsity, these recitations in the waiver are binding. See Breazeale, 683 S.W.2d at 450. The two blanks relied on by Crawford are not direct proof that these recitations are false. See id. We conclude the waiver includes the necessary requirements for it to be effective, King, 473 S.W.2d at 52, and the prior judgment of conviction in Cause No. 2009-CR-12408W "carries with it a presumption of regularity and truthfulness." Breazeale, 683 S.W.2d at 450-51. Because the prior judgment of conviction in Cause No. 2009-CR-12408W has not been shown to be void, we hold the trial court did not err by denying Crawford's motion to quash the indictment.

         Jury Charge

         For the same reasons as expressed in his motion to quash the indictment, Crawford objected during the charge conference in the punishment phase to the jury being asked about the first habitual enhancement allegation relating to his prior conviction in Cause No. 2009-CR-12408W, arguing it was not a valid conviction. On appeal, Crawford incorporates the arguments from his first issue, claiming the enhancement allegation "was erroneously submitted to the jury because the underlying conviction alleged in that enhancement allegation was void." For the same reasons stated above, we hold the judgment of conviction in Cause No. 2009-CR-12408W was not void and could form a basis for the enhancement allegation. Therefore, we find no error by the trial court in submitting the issue to the jury.

         Commitment Question

         Crawford argues that during voir dire, the trial court erred in overruling his objection to the prosecutor's improper commitment question. "A commitment question is one that commits a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact." Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012). For a commitment question to be proper, it must meet two criteria: (1) "one of the possible answers to that question must give rise to a valid challenge for cause"; and (2) it "must contain only those facts necessary to test whether a prospective juror is challengeable for cause." Standefer v. State, 59 S.W.3d 177, 182 (Tex. Crim. App. 2001) (emphasis in original). In considering whether a commitment question meets these two ...


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