GUADALUPE CANTU AND ALONZO CANTU CONSTRUCTION, INC. v. ALICIA MOLINA, JUAN MOLINA, AND GLORIA MOLINA, INDIVIDUALLY AND AS NEXT FRIEND OF JASON MOLINA, JUAN T. MOLINA & TRACY MOLINA, MINOR CHILDREN, GL

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2005 » GUADALUPE CANTU AND ALONZO CANTU CONSTRUCTION, INC. v. ALICIA MOLINA, JUAN MOLINA, AND GLORIA MOLINA, INDIVIDUALLY AND AS NEXT FRIEND OF JASON MOLINA, JUAN T. MOLINA & TRACY MOLINA, MINOR CHILDREN, GL

State: Texas

Court: Texas Northern District Court

Docket No: 13-01-00437-CV

Case Date: 05/26/2005

Plaintiff: GUADALUPE CANTU AND ALONZO CANTU CONSTRUCTION, INC.

Defendant: ALICIA MOLINA, JUAN MOLINA, AND GLORIA MOLINA, INDIVIDUALLY AND AS NEXT FRIEND OF JASON MOLINA, JUA

Preview:Charles W. Mizell, Jr. v. State of Texas--Appeal from
187th Judicial District Court of Bexar County
No. 04-00-00543-CR
Charles W. MIZELL, Jr.
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-5301
Honorable Raymond Angelini, Judge Presiding
Opinion by: Sarah B. Duncan, Justice
Sitting: Phil Hardberger, Chief Justice
Paul W. Green, Justice
Sarah B. Duncan, Justice
Delivered and Filed: September 26, 2001
AFFIRMED IN PART; VACATED AND REMANDED IN PART
Charles Mizell appeals his conviction and punishment for violating an inmate's civil rights and official oppression. We
affirm the trial court's judgment of conviction and remand to the trial court for a new sentencing hearing on the official
oppression charge.
Factual and Procedural Backgound
While investigating an allegation that inmate Joseph Cuellar had made threatening gestures toward a jail trustee,
Charles Mizell, a corporal with the Bexar County Sheriff's Office, was witnessed striking Cuellar's face with his hand.
Mizell was charged with one count of violating an inmate's civil rights (Count I) and one count of official oppression
(Count II). The jury found Mizell guilty of both offenses as charged. The jury fined Mizell $2,000 for the civil rights
violation but assessed no punishment for the official oppression charge. Mizell filed a motion for new trial, which was
denied. Mizell appealed.
Double Jeopardy
In his first point of error, Mizell argues he was tried for the same offense twice in violation of the double jeopardy
clause's prohibition against multiple prosecutions for the same criminal act. The State responds, arguing there was no
double jeopardy violation because each offense contains at least one element that the other does not. (1) We agree with
the State.
Discussion
The indictment charged the following:
Count I (Civil Rights Violation)
CHARLES MIZELL, hereinafter referred to as defendant, a peace officer employed by Bexar County, did then and
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there intentionally DENY AND IMPEDE A PERSON IN CUSTODY, namely: JOSEPH CUELLAR, hereinafter
referred to as complainant, IN THE EXERCISE AND ENJOYMENT OF ANY RIGHT, PRIVILEGE, AND
IMMUNITY, to-wit: by striking Joseph Cuellar with the defendant's hand in the Bexar County Adult Detention Center
Annex, and the defendant knew his conduct was unlawful.
Count II (Official Oppression)
Paragraph A
CHARLES MIZELL, hereinafter referred to as defendant, a public servant, namely: a peace officer employed by
Bexar County, while acting under color of his office and employment, did then and there intentionally SUBJECT
ANOTHER, namely: JOSEPH CUELLAR, ... TO MISTREATMENT, to-wit: by striking Joseph Cuellar with the
defendant's hand in the Bexar County Adult Detention Center Annex, that defendant knew [sic] was unlawful.
ParagraghB
CHARLES MIZELL, hereinafter referred to as defendant, a public servant, namely: a peace officer employed by
Bexar County, while acting under color of his office and employment, did then and there intentionally DENY AND
IMPEDE ANOTHER, namely JOSEPH CUELLAR, ... IN THE EXERCISE AND ENJOYMENT OF ANY RIGHT,
PRIVILEGE, POWER, AND IMMUNITY, to-wit: by striking Joseph Cuellar with the defendant's hand in the Bexar
County Adult Detention Center Annex, and the defendant knew his conduct was unlawful.
Mizell contends double jeopardy bars his prosecution for both offenses because they arose from the same criminal act
and the elements of official oppression and the civil rights violation as set out in the indictment are identical. We
disagree.
"[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether each provision requires proof of an additional fact
which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). The civil rights violation requires
the State to prove Mizell struck "a person in custody" whereas the official oppression offense does not. Compare Tex.
Penal Code Ann. 39.03(a)(2) (Vernon 1994) and 39.04(a) (Vernon Supp. 2000). See also Ladner v. State, 790 S.W.2d
671, 674 (Tex. App.-Tyler 1988) (in comparing civil rights violation and murder, the court concluded murder did not
require proof that crime was committed against "a person in custody"), rev'd on other grounds, 780 S.W.2d 247, 249
(1989) (discussing with approval court of appeal's review of double jeopardy claim)). Likewise, official oppression
requires proof that the defendant was "acting under color of his office or employment" whereas the civil rights
violation does not. Compare Tex. Penal Code Ann. 39.03 (a) (Vernon 1994) and 39.04 (Vernon Supp. 2000). See also
Blasingame v. State, 706 S.W.2d 682, 683-84 (Tex. App.-Houston [14th Dist.] 1986, pet. ref'd) (discussing official
oppression and distinguishing between private wrongdoing and abuse of authority). Because the offenses each contain
an element the other does not contain, the offenses are not the same offense under Blockburger. We therefore hold that
conviction of both offenses is not barred by double jeopardy and overrule the point of error.
Error in Indictment
In his second and third points of error, Mizell contends he was denied due process because counts one and two of the
indictment failed to specify what right, privilege, and immunity Mizell had denied inmate Joseph Cuellar.
Discussion
The State argues Mizell waived or forfeited the right to complain about any alleged error in the indictment because he
failed to present an objection to the trial court. Mizell, in response, contends the error in the indictment was
fundamental error of constitutional dimension such that the error could not be waived. We disagree.
As the State correctly notes, article 1.14(b) of the Texas Code of Criminal Procedure provides:
If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information
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before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect,
error, or irregularity and he may not raise the objection on appeal.
Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2000). The record before us does not contain a written motion
to quash nor is there any indication Mizell objected to the indictment at any stage of the case. We therefore overrule
Mizell's second and third points of error.
Factual Sufficiency
In his fourth point of error, Mizell maintains the evidence is factually insufficient to support the jury's verdict.
Standard of Review
In reviewing for factual sufficiency, we consider all of the evidence introduced at trial. Johnson v. State, 23 S.W.3d 1,
7 (Tex. Crim. App. 2000). The evidence is not viewed in the light most favorable to the prosecution. Clewis v. State,
922 S.W.2d 126, 129 (Tex. Crim. App. 1996). A guilty verdict may only be set aside when it is so clearly wrong and
unjust that it undermines confidence in the jury's determination. Johnson, 23 S.W.3d at 11. Because the jury is the
exclusive judge of witness credibility and weight given to witness testimony, it is the jury's prerogative to reject all or
part of the evidence and draw reasonable inferences from the evidence presented. Clewis, 922 S.W.2d at 135. It is not
proper for a reviewing court to reweigh the evidence or to substitute its judgment because it concludes another result is
more reasonable. Id. Instead, deference must be given to the jury verdict unless it is manifestly unjust and against the
great weight of evidence. Id.;Johnson, 23 S.W.3d at 11-12.
Discussion
Mizell's specific complaint is that the evidence is factually insufficient to prove he slapped Joseph Cuellar in the face.
We disagree.
At trial, Cuellar testified Mizell slapped him. Corporal Lynda Grady also testified she saw Mizell slap Cuellar. Grady
said she heard the slap and saw the incident "very clearly." There was evidence, though, Grady suffered from a vision
impairment and was fired as a deputy because she was unable to qualify with her weapon due to her poor eyesight.
Mizell cites other evidence, the majority of which concerns conflicting witness testimony. The weight given
"contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of
credibility and demeanor." Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). A verdict is "not manifestly
unjust merely because the jury resolved conflicting views of the evidence in favor of the State." Id. at 410. Based on
the record presented, we hold the jury verdict is not so against the great weight and preponderance of the evidence as
to be clearly unjust and wrong and overrule Mizell's fourth point of error.
Ineffective Assistance of Counsel
In his final point of error, Mizell claims trial counsel rendered ineffective assistance by failing to attach affidavits in
support of a motion for new trial.
Applicable Law
When reviewing an ineffective assistance of counsel claim, we follow the test set out by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Texas Court of Criminal Appeals in Hernandez v.
State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). To prevail, a defendant has the burden of showing by a
preponderance of the evidence: (1) trial counsel's performance was deficient, and (2) the deficient performance
prejudiced the defense. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). This showing must be
sufficient to overcome the strong presumption trial counsel rendered adequate assistance and counsel's actions were
sound trial strategy. Id. at 771. "Any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 119 (1997)).
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Discussion
Trial counsel filed a motion for new trial, alleging the verdict is contrary to the law and evidence. Because counsel did
not file any supporting affidavits with his motion for new trial, Mizell contends he was denied a hearing and the
opportunity to present evidence demonstrating the verdict is contrary to the law and evidence. We disagree.
Not all motions for new trial require supporting affidavits. See State v. Daniels, 761 S.W.2d 42, 44 (Tex. App.-Austin
1988, pet. ref'd) (citing Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983)). In criminal trials, the court
may hear evidence supporting a motion for new trial "by affidavit or otherwise." Tex. R. App. P. 21.7.
Here, trial counsel only challenged the sufficiency of the evidence in the motion for new trial-a matter determinable
from the record. See Daniels, 751 S.W.2d at 44-45. Therefore, supporting affidavits were not necessarily required. And
because Mizell did not claim trial counsel was ineffective in his motion for new trial, there is no evidence in the record
to rebut the presumption counsel's failure to attach affidavits was anything other than a strategic decision. The State
argues counsel may have simply intended to file the motion to extend the time period to file a notice of appeal. If that
was the case, then there would have been no reason to file supporting affidavits. Because the record is silent as to
defense counsel's possible strategies, we decline to speculate why counsel acted as he did. See Jackson v. State, 877
S.W.2d at 800. We therefore hold Mizell failed to establish counsel was ineffective and overrule his fifth point of error.
The State's Cross-Point of Error
In a cross-point, the State contends the trial court erred in allowing the jury to return a punishment that was not within
the statutory punishment range. Mizell argues this Court lacks jurisdiction to consider the State's cross-point of error
because the State did not file a notice of appeal as required by article 44.01 of the Texas Code of Criminal Procedure.
Jurisdiction to Address Cross-Point
Applicable Law
Pursuant to Article 44.01(a) of the Code of Criminal Procedure:
(a) The state is entitled to appeal an order of a court in a criminal case if the order:
(1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint;
(2) arrests or modifies a judgment;
(3) grants a new trial;
(4) sustains a claim of former jeopardy; or
(5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if
the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the
evidence, confession, or admission is of substantial importance in the case.
(b) The state is entitled to appeal a sentence in a case on the ground that the sentence is illegal.
(c) The state is entitled to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the
judgment.
(d) The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day
after the date on which the order, ruling, or sentence to be appealed is entered by the court.
Tex. Code Crim. Proc. art. 44.01 (Vernon Supp. 2000).
Discussion
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After the State filed its response brief containing the cross-point of error, Mizell filed a reply brief in which he argued
the State must first file a written notice of appeal in accordance with Rule 26 of the Texas Rules of Appellate
Procedure to raise a cross-point on appeal. The State responded, arguing it was not required to file a notice of appeal
because it was appealing under article 44.01(c), which according to the State, does not require a written notice of
appeal. The State reasons that article 44.01(d) makes the fifteen day rule applicable only to sections (a) and (b). It
further reasons that Rule 25.2, unlike Rule 25.1, does not expressly state "who must file" a notice of appeal in a
criminal case. Therefore, it contends the State need only file a written notice of appeal when it is the appellant. We
agree.
While article 44.01(d) and Rule 26.2(b) set forth the time in which the State must file a notice of appeal when it is the
appellant, neither article 44.01 nor the Rules of Appellate Procedure regarding criminal appeals requires the State to
file a written notice of appeal "to appeal a ruling on a question of law [when] the defendant is convicted in the case
and appeals the judgment." See Tex. Code Crim. Proc. art. 44.01; Tex. R. App. Proc. 25.2(a)-(b)(2), 26.2(b). Although
Rule 25.1(c) requires a notice of appeal to be filed by any party in a civil case seeking to alter the trial court's
judgment, there is no counterpart to Rule 25.1(c) for criminal cases. We therefore respectfully decline to follow Malley
v. State, in which the Beaumont Court of Appeals concluded the State was required to file a notice of appeal under
44.01(c). See Malley v. State, 9 S.W.3d 925, 927 (Tex. App.-Beaumont 2000, pet. ref'd). Accordingly, we will address
the State's cross-point.
Is Mizell's Sentence Void?
<STRONG> In its cross-point, the State argues the trial court erred in allowing the jury to return a punishment that
was not within the statutory punishment range. We agree.
Official oppression is a Class A misdemeanor. Tex. Penal Code Ann. 39.03(d) (Vernon 1994). The Texas Penal Code
requires that a person found guilty of a Class A misdemeanor be punished by: "(1) a fine not to exceed $4,000; (2)
confinement in jail for a term not to exceed one year; (3) or both such fine and confinement." Id. 12.21.
The jury found Mizell guilty of official oppression but assessed no punishment. Therefore, punishment on this charge
was not within the prescribed statutory range. Sentences below the statutory minimum are void. Villarreal v. State, 590
S.W.2d 938, 939 (Tex. Crim. App. 1979). We therefore sustain the State's cross-point.
Conclusion
Because the sentencing error only affects the punishment assessed, we affirm the trial court's judgment of conviction
and its sentence on count one, vacate the sentence imposed for count two, and remand to the trial court for a new
sentencing hearing on count two. See Mills v. State, 802 S.W.2d 400, 402 (Tex. App.-Houston [1st Dist.] 1991, pet.
ref'd).
Sarah B. Duncan, Justice
Publish
1. The State further argues the Texas Legislature has expressed its intention that prosecution for one of the offenses for
which Mizell was convicted should not be considered a bar to prosecution for any other offense set out in the Penal
Code. See Tex. Penal Code Ann. 39.04(c) (Vernon Supp. 2000).
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