Ron Valentine v. State ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-0307-CR
________________________
Ronald Keith Valentine, Appellant
v.
The State of Texas, Appellee
On Appeal from the County Court at Law No. 1
Travis County, Texas
Trial Court No. C-1-CR-12-1000013, Honorable David Phillips, Presiding
April 25, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
“Can we, can we all get along?”1
This appeal, and prosecution underlying it, could have been avoided had the
admonishment above been heeded. It was not, and Ronald Keith Valentine’s effort to
reciprocate for the noise he purportedly heard from his neighbor’s house resulted in his
conviction for disorderly conduct. His playing a continuous loop of Neil Diamond’s “You
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Rodney King.
Got To Me” for hours on end finally got to those living in the neighborhood. It most likely
did not help that the speakers from which the song emanated were outdoors. Nor did it
help, as one neighbor suggested, that it was the same song being played over and over
and over again. Nor did it help that though appellant was angry at a particular neighbor,
he exposed every other person surrounding his house to the same aural presentations.
The class C misdemeanor conviction for disorderly conduct was appealed from
the local municipal court to the county court at law, then to this court. Valentine seeks
to reverse it via six issues. The pertinent standards of review and rules for preservation
argument, however, obligate us to affirm.
One appealing from a conviction in a municipal court of record (like that at bar)
must:
. . . file a written motion for new trial with the municipal clerk not later than
the 10th day after the date on which judgment is rendered. The motion
must set forth the points of error of which the appellant complains.
TEX. GOV. CODE ANN. 30.00014(c) (West Supp. 2012). Issues omitted from that motion
for new trial are not preserved for review. Brooks v. State, 226 S.W.3d 607, 609 (Tex.
App.–Houston [1st Dist.] 2007, no pet.). Of the six issues proffered by appellant, only
two were mentioned in his motion for new trial. 2 They dealt with a purported violation of
“the Rule” and his lack of appointed counsel. The others, though of interest, were
omitted and, therefore, waived.
As for the issue about witnesses violating “the Rule,” appellant contends that the
trial court should have declared a mistrial when it was advised that witnesses were
overheard discussing the case outside of the courtroom. According to the record, the
2
Appellant did file an amended motion for new trial alleging additional issues; however, it was
untimely filed.
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trial court questioned the witnesses about the allegation, but none acknowledged its
occurrence. So, the trial continued. And though appellant contended, in his motion for
new trial, that the witnesses perjured themselves, we are cited to no evidence of record
supporting that proposition. Nor did our review of the record uncover any such
evidence. Given this, we cannot say that the trial court abused its discretion in refusing
to declare a mistrial or grant a new trial. See Webb v. State, 232 S.W.3d 109, 112 (Tex.
Crim. App. 2007) (stating that whether to grant a mistrial or new trial lies within the trial
court’s discretion).
As for the issue about appellant’s failure to receive appointed counsel, we note
that he was charged with a Class C misdemeanor, a crime punishable only by a fine.
Consequently, he was not entitled to appointed counsel even if he was indigent. TEX.
CODE CRIM. PROC. ANN. art. 1.051(c) (West Supp. 2012) (stating that an indigent
defendant is entitled to have an attorney appointed to represent him in any adversary
judicial proceeding that may result in punishment by confinement). However, the trial
court had the ability to appoint counsel if required by the interests of justice. Id; Barcroft
v. State, 881 S.W.2d 838, 841 (Tex. App.–Tyler 1994, no pet.). Yet, appellant failed to
demonstrate how that standard was met. Again, the prosecution involved a Class C
misdemeanor. And, though he invoked his right to free speech, it is rather clear that the
State has the ability to reasonably regulate the time, place, and manner of that speech.
Lauderback v. State, 789 S.W.2d 343, 347 (Tex. App.–Fort Worth 1990, pet ref’d). That
the statute being enforced passes constitutional analysis is also well settled. See
Blanco v. State, 761 S.W.2d 38, 41 (Tex. App.–Houston [14th Dist.] 1988, no pet.). So,
there was nothing unique or of first impression involved. Nor were the risks to
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appellant’s liberty grave. Nor did the record suggest that appellant lacked the
education, experience or ability (either physical or mental) to proceed without appointed
counsel. Consequently, we cannot say that the interests of justice required the
appointment of counsel under the circumstances here. The issue is overruled.
Accordingly, each of appellant’s issues are overruled, and the judgment is
affirmed.
Per Curiam
Do not publish.
Campbell, J., concurs.
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