Sanders v. State

JUSTIN SANDERS, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-14-00079-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: June 3, 2015

August 12, 2015

On Appeal from the 102nd District Court Bowie County, Texas

Trial Court No. 13F1051-102

Before Morriss, C.J., Moseley and Carter,^* JJ.

Memorandum Opinion by Justice MoseleyMEMORANDUM OPINION

Near midnight in the summer of 2013, a 9-1-1 operator received a telephone call reporting a large disturbance at Grady T. Wallace Park (the Park) in Texarkana, Texas. The ensuing arrival of Texarkana Police Officer William Jason Sprague at the Park with the lights on his patrol car ablaze prompted a stampede of automobiles attempting to leave the Park. One of the fleeing cars struck Sprague, who later died from the injuries he sustained. Justin Sanders was accused of having driven the car that struck Sprague and was convicted of felony murder, receiving a sentence of thirty years' imprisonment and a fine of $5,000.00.

On appeal, Sanders contends that the trial court erred (1) by denying his motion to quash the indictment, (2) by submitting a jury charge that was fundamentally defective, (3) in admitting extraneous-offense evidence, (4) overruling his motion to suppress evidence obtained from his cell phone, (5) in denying his motion for mistrial when the State engaged in prosecutorial misconduct in raising before the jury a claim that threats had been directed at witnesses, and (6) in denying his motion for mistrial for prosecutorial misconduct in the wearing by prosecuting attorneys of "fallen officer" wristbands during a part of the trial. Finally, Sanders maintains that the evidence against him is not sufficient to support the verdict.¹

I. Brief Background Facts

A Texarkana city ordinance prohibits people from using the Park after 10:00 p.m. Nevertheless, reports to the 9-1-1 emergency line were made near midnight June 14, 2013, of alarge disturbance at the Park. Police were dispatched, and Officer Sprague (who was dressed in his policeman's uniform and was driving a prominently marked patrol car) was the first officer to arrive, finding about 100 people in the Park. Only minutes after Spragues' arrival, another call to the 9-1-1 emergency operator was placed. This call was from an unidentified person who was at the Park, and that person reported that a police officer had been struck by a vehicle. The caller did not see the vehicle strike the officer, but thought the vehicle was a brown, four-door, Chevrolet Sport Utility Vehicle (SUV).²

Officer Chris Phelps, the next officer to arrive at the Park, testified that he saw numerous vehicles driving out of and away from the Park. He also saw Sprague lying unconscious on the ground with blood coming out of his ears and pieces from his uniform scattered around him. Because he believed Sprague to be struggling to breath, he cut Sprague's shirt, vest, and duty belt off. Phelps and other officers interviewed several people still at the scene, and they got several different versions of the event, but none of the interviewees admitted to having seen whose vehicle had struck Sprague. Sprague was taken to Christus St. Michael Hospital where he later died from his injuries.

A. Did the Trial Court Err by Denying Sanders' Motion to Quash the Indictment?

The indictment alleged that Sanders caused Sprague's death by striking him with a motor vehicle while committing or attempting to commit "a felony offense, to-wit: Evading Arrest or Detention." On March 17, about a week before the commencement of voir dire, the State madean attempt to amend the indictment by adding the language "with a vehicle" after the word "detention," but Sanders refused to agree to the amendment.³ Rather, Sanders filed a motion to quash the indictment. During a hearing on his motion, Sanders argued that the indictment failed to provide notice of how the State intended to prove evading was a felony. The trial court denied Sanders' motion.

In his first point of error on appeal, Sanders contends that the trial court erred by denying his motion to quash the indictment because the indictment failed to allege an offense—that is, that the indictment was insufficient to identify, with enough clarity and specificity, the penal statute under which the State intended to prosecute—thereby depriving the trial court of subject-matter jurisdiction.

A trial court's decision to grant or deny a motion to quash an indictment is reviewed de novo. State v. Barbernell, 257 S.W.3d 248, 251-52 (Tex. Crim. App. 2008); Tollett v. State, 219 S.W.3d 593, 596 (Tex. App.—Texarkana 2007, pet. ref'd). An instrument which is not an indictment under Article V, Section 12 of the Texas Constitution fails to vest the trial court with jurisdiction; the issue of whether an instrument suffices as an indictment under the Texas Constitution is a jurisdictional one that may be first raised on appeal. See Duron v. State, 956 S.W.2d 547, 551 n.3, 555 (Tex. Crim. App. 1997) (Womack, J., concurring); Cook v. State, 902 S.W.2d 471, 479-80 (Tex. Crim. App. 1995). "[T]o comprise an indictment within the definition provided by the constitution, an instrument must charge: (1) a person; (2) with the commission ofan offense." Cook, 902 S.W.2d at 477. "[A] written instrument is an indictment or information under the Constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the indictment is otherwise defective." Duron, 956 S.W.2d at 550-51.

Here, the indictment specifically alleges that Sanders:

did then and there intentionally or knowingly commit or attempt to commit a felony offense, to-wit: Aggravated Assault of a Public Servant, and while in the course of and in furtherance of the commission or attempt of said offense did then and there commit or attempt to commit an act clearly dangerous to human life, namely, striking Officer William Jason Sprague with a motor vehicle, which caused the death of Officer William Jason Sprague.

Paragraph Two: and it is further presented in and to said Court that the said Justin Miles Sanders heretofore on or about June 14, 2013, did then and there, intentionally commit or attempt to commit a felony offense, to-wit: Evading Arrest or Detention, and while in the course of and in furtherance of the commission or attempt of said offense did then and there commit or attempt to commit an act clearly dangerous to human life, namely, striking Officer William Jason Sprague with a motor vehicle, which caused the death of Officer William Jason Sprague.

As mentioned previously, evading arrest or detention under Section 38.04 of the Texas Penal Code is a class A misdemeanor unless the circumstances of the offense meet certain requirements under Section 38.04(b). Sanders contends that as he is ostensibly charged with felony murder under Section 19.02(b)(3),⁴ paragraph two of the indictment is fundamentally flawed and fails to state an offense because it fails to allege facts sufficient to identify which subsection of 38.04(b) upon which the State relies to elevate the predicate offense to a felony.

Interestingly, Sanders chooses to excise a portion of a sentence from the indictment ("intentionally commit or attempt to commit a felony offense, to-wit: Evading Arrest or Detention") without looking at the rest of the indictment. Following that, one can see where he gleans the belief that the indictment fails to show that the evading arrest portion is a felony. However, the balance of the indictment includes the charge that Sanders was guilty of "striking Officer William Jason Sprague with a motor vehicle, which caused the death of Officer William Jason Sprague." If Sprague was struck with a motor vehicle, surely Sanders would not believe that the State had alleged that Sanders had hefted an automobile in the air and struck Sprague with it. Following Sanders' reasoning would require the reader to render the entire indictment nonsensical. Conversely, read in its entirety, the indictment clearly makes sense and clearly describes the offense with which Sanders was charged.

The State, however, is not required to allege the constituent elements of the underlying felony in an indictment for felony murder under Section 19.02(b)(3) of the Texas Penal Code, even if the accused files a motion to quash. See Barnes v. State, 876 S.W.2d 316, 323 (Tex. Crim. App. 1994); Hammett v. State, 578 S.W.2d 699, 707-08 (Tex. Crim. App. 1979). "Under the . . . Penal Code, an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense," Hammett, 578 S.W.2d at 708, and the failure to allege an element of an offense no longer renders the indictment fundamentally defective. See Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990). We find that the indictment alleged an offense sufficient to vest the trial court with jurisdiction and, therefore, the trial court properly overruled Sanders motion to quash.

There was a time in Texas jurisprudence that it was required that "an indictment should be so certain and definite in charging the offense that it leaves nothing to be supplied by intendment or inference." Northern v. State, 203 S.W.2d 206 (Tex. Crim. App. 1947). This requirement was carried to the extreme and then abandoned. Vaughn v. State, 607 S.W.2d 914, 916 (Tex. Crim. App. 1980). When one looks at the entire indictment (and not the sole phrase emphasized by Sanders), it is plain to see that it was alleged that Sanders used "a vehicle while the actor [was] in flight" during the commission of the act of evading arrest or detention. TEX. PENAL CODE ANN. § 38.04(b)(2)(A).

We overrule this point of error.

II. Did the Jury Charge Allow the Jury to Convict Sanders for an Unindicted Offense?

In his second point of error, Sanders contends that the jury charge was fundamentally defective because it omitted the factual allegations...