Jerrod Duanya Ferguson aka Jerry Fuller v. The State of Texas--Appeal from 23rd District Court of Brazoria County

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State: Texas

Court: Texas Northern District Court

Docket No: 14-09-00575-CR

Case Date: 02/01/2011

Plaintiff: Jerrod Duanya Ferguson aka Jerry Fuller

Defendant: The State of Texas--Appeal from 23rd District Court of Brazoria County

Preview:Affirmed and Majority and Concurring Opinions filed February 1, 2011.

In The

Fourteenth Court of Appeals
___________________ NO. 14-09-00575-CR ___________________ JERROD DUANYA FERGUSON AKA JERRY FULLER, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 57729

MAJORITY OPINION
A jury found appellant guilty of possession of a prohibited item in a correctional facility, namely, a cell phone. The jury assessed six years` imprisonment by the Texas Department of Criminal Justice (TDCJ) for the offense. Appellant, appearing pro se at both the trial and on appeal, raises nine points of error on appeal. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Major Calvin Tucker of the Darrington Unit of the TDCJ testified that on March 14, 2007, he attempted to conduct a routine search of appellant`s cell and person. (3 RR 11) Appellant`s cell mate was sleeping, but appellant was awake and at the rear of the cell. (3 RR 11) Major Tucker asked appellant to consent to a strip search; appellant refused. (3

RR 11) Major Tucker then asked another TDCJ employee to open the door to appellant`s cell, which she did. (3 RR 14) At this point, appellant`s cell mate woke up and consented to a strip search, which Major Tucker conducted. (3 RR 14) Appellant then appeared to consent to the search by taking off his shirt and handing it to Major Tucker, who was standing in the cell doorway. (3 RR 15) Major Tucker searched the shirt and attempted to return it to appellant. (3 RR 15) At that point, appellant tried to shut the cell door on Major Tucker. (3 RR 15) Major Tucker pushed back and stepped into the cell; appellant responded by punching Major Tucker in the face. (3 RR 15-16) Major Tucker struck appellant in response. Eventually appellant lay down on the bed, where Major Tucker handcuffed him and walked him to the cell door. (3 RR 16) Major Tucker then handed off appellant to two other officers who took appellant to the infirmary. (3 RR 17) One of the TDCJ officials who escorted appellant to the infirmary was Lieutenant Steven Kelly. (3 RR 30) Lieutenant Kelly testified he took appellant to the infirmary to check for any injuries, pursuant to policy after a force incident occurs. (3 RR 32) The entire medical examination and subsequent search was videotaped. (3 RR 32) The TDCJ requires the video camera remain trained on the inmate the entire time. (3 RR 32) After the medical examination, Lieutenant Kelly also took still photos of appellant to document any injuries. (3 RR 33) Lieutenant Kelly next strip searched appellant. (3 RR 33-34) To do so, he first searched a dry cell next to the infirmary and then placed appellant in it. (3 RR 33-34) A dry cell is an empty room with a cell door. It does not have any plumbing or furniture. (3 RR 34) Lieutenant Kelly noted the actions he took for the video camera, stating that he searched the cell, but there is no video of the cell because the camera was required to remain on appellant. Appellant then consented to a strip search. (3 RR 35) Lieutenant Kelly testified that when appellant removed his shorts and underwear, he saw an object go to the floor. (3 RR 35) At the same time, appellant placed an item in his mouth and swallowed it. (3 RR 35) The item was never identified, but appellant first stated the item 2

was Prozac and later declared the item was Tylenol. (3 RR 35) The video camera did not record the object on the floor because it fell outside its range. Lieutenant Kelly testified he examined the object and found it was a gray sock, knotted on the end. (3 RR 38-39) Inside, he found a cell phone encased in a toilet paper tube. (3 RR 38) Lieutenant Kelly testified he turned over the phone, sock and toilet paper tube to Officer Chris Cegielski, an investigator at TDCJ. Officer Cegielski testified that he examined the items and found no fingerprints on the phone. (3 RR 68) When he tried to turn the phone on, the SIM card was missing, so he could not tell if any calls were made. (3 RR 67) Appellant cross-examined the prosecution witnesses, attempting to show a culture of corruption within the prison. He also presented two inmate witnesses who, it appears, were called to suggest that the cell phone was planted by corrupt prison officials. The trial court prevented much of their testimony upon objections by the prosecution. Appellant did not testify in his own defense. The jury deliberated, but twice told the trial judge it was unable to reach a verdict. After the second time, the trial judge gave the jury an Allen charge1 and asked them to continue deliberating. The jury returned with a verdict of guilty. During the punishment phase, the prosecution called additional witnesses. These witnesses testified that the cell phone was not the first piece of contraband appellant had possessed in prison. He had previously possessed $100 in cash, ten marijuana cigarettes, and another cell phone. (4 RR 13, 18, 24) Appellant cross-examined them, but only asked each witness if, after the items were confiscated, whether he caused the witness personally any other problems. Each witness answered no. The trial judge asked both parties if they had read and agreed to the punishment phase jury charge, and each answered yes. The punishment range for the offense was an enhanced sentence of between two and

Allen v. U.S., 164 U.S. 492 (1896) (a jury instruction designed to encourage the jury to reach a verdict after a period of deadlock).

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twenty years for the offense and up to a $10,000 fine. The jury deliberated and sentenced appellant to six years` imprisonment and no fine. Appellant chose to appear pro se at trial, but had appointed standby counsel. (2 RR 7) The prosecuting attorney was Special Prosecutor Terri Holder. (1 RR) Appellant also filed his appellate brief pro se, asserting nine points of error. (Ant B. 3) DISCUSSION I. Was Special Prosecutor Terri Holder Illegally Prosecuting Appellant? In his first issue, appellant argues Special Prosecutor Terri Holder did not have authority to prosecute him. Appellant filed a Writ of Quo Warranto in the trial court to challenge the legal authority of Ms. Holder with the trial court. (Ant B. 1) He argues his conviction is illegal because Ms. Holder did not have prosecutorial authority. (AB 2) A. Standard of Review This issue concerns a matter of law, which we review de novo. See Lawson v. State, 283 S.W.3d 438, 440 (Tex. App.--Fort Worth 2009, pet. ref`d) (constitutional questions are reviewed de novo). B. Analysis

Appellant argues that the Texas Constitution allows only elected district or county attorneys to represent the State in criminal prosecutions. He further argues this is a non-delegable duty, except to appoint an attorney pro tem in the case of conflicts. (AB 1) The record does not contain any evidence Ms. Holder is an attorney pro tem and appellant does not dispute Ms. Holder`s claim that she is a member of the Special Prosecution Unit for prison offenses. (1 RR) The Texas Constitution states elected officials are permitted to prosecute criminal offenses. See Tex. Const. art. V,

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