Emma Czarnecki v. State ( 2008 )

NO. 07-07-0485-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 22, 2008

______________________________

EMMA L. CZARNECKI, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;

NO. 2006-498,812; HONORABLE LARRY B. “RUSTY” LADD, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ABATEMENT AND REMAND

          Following a plea of not guilty, Appellant, Emma L. Czarnecki, was convicted of driving while intoxicated and sentenced to 120 days confinement in the Lubbock County Jail. She was assessed a $1,000 fine, which was suspended. The Trial Court’s Certification of Defendant’s Right of Appeal contained in the supplemental clerk’s record filed on February 13, 2008, does not comply with the requirements of Rule 25.2(d) of the Texas Rules of Appellate Procedure. As of September 1, 2007, a defendant must sign and receive a copy of the certification. Additionally, the new form provides certain admonishments to a defendant not previously required.

          Consequently, we abate this appeal and remand this cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a proper Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly completed and executed, the certification shall be included in a supplemental clerk’s record. See Tex. R. App. P. 34.5(c)(2). The trial court shall cause this supplemental clerk's record to be filed with the Clerk of this Court by November 6, 2008. This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certification. If a supplemental clerk’s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).

           It is so ordered.

                                                                                  Per Curiam

Do not publish.

into the body shop with the satchel. Appellant stayed in the body shop for approximately 30 minutes and came back to the van with the satchel. Edward Martinez, owner of Ed's Paint and Body Shop, testified that appellant had worked for him briefly during 1998. He testified that appellant came by his shop to sell him a gun, and he purchased it for $100.

At the conclusion of the State's evidence, appellant moved for an instructed verdict on the charge of burglary of a habitation and unlawful possession of a firearm by a felon, contending that the evidence was legally insufficient to sustain a conviction "as to either one or both counts." The trial court denied the motion. During appellant's case-in-chief, Lee Ramero testified that he was one of the occupants that traveled in the van from O'Donnell to Lubbock in March, 1998. Ramero testified that Bobby got into the van in O'Donnell with a bag which had a shoulder strap, but that the appellant did not bring a satchel onto the van. Ramero testified that both appellant and Bobby exited the van in Lubbock and went inside the auto body shop with the satchel.

Appellant's counsel contended in his opening statement that appellant neither burglarized Saleh's house nor possessed a firearm in Lynn County, Texas, as the State alleged. Appellant maintains that the issue of venue was again raised during closing arguments, wherein his counsel stated, "I told you in the beginning what I expected the evidence to prove during my opening statement . . . ." Appellant relies on Cunningham v. State, 848 S.W.2d 898, 901-02 (Tex.App.--Corpus Christi 1993, pet. ref'd), where the court held that the defendant timely raised the issue of venue during closing argument because the State could have produced evidence proving venue following the argument.

Appellant also maintains that the issue of venue was addressed in his motion for instructed verdict. A motion for instructed verdict which specifically challenges the proof of venue timely raises and preserves the issue on appeal. See Black, 645 S.W.2d at 790-91; Lozano v. State, 958 S.W.2d 925, 929 (Tex.App.--El Paso 1997, no pet.). In this instance, appellant did not specifically challenge venue in his motion for directed verdict; rather, he challenged the overall legal sufficiency of the evidence. Venue is not a "criminative fact" and thus, not a constituent element of the offense. Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App. 1981).

We conclude that the venue issue was raised and preserved by appellant. The State's final argument specifically addressed the venue issue at some length. The record demonstrates that the State was well aware of appellant's position that although he may have sold the pistol in Lubbock County, the evidence did not prove that he possessed a firearm in Lynn County.

We further conclude, however, that the trier of fact could have reasonably inferred from the evidence that appellant possessed a firearm in Lynn County. The testimony, which contained significant conflicts, is not challenged by appellant as being insufficient to support his conviction for burglary of Saleh's home in Lynn County. Saleh testified that a .357 magnum revolver with serial number 05943V was among the items stolen from his home. One of the occupants in the van that traveled from O'Donnell to Lubbock the day after the incident testified that when appellant was picked up, he entered the van with a satchel, then later carried the satchel into Ed's Paint and Body Shop in Lubbock. Edward Martinez testified that appellant came to his shop in Lubbock and sold him a pistol. The pistol was later entered into evidence and was identified as a .357 magnum with serial number 05943V.

There was conflicting testimony whether Bobby or appellant brought the satchel containing the pistol onto the van in O'Donnell, in Lynn County. One of the jury's functions is to resolve conflicts in the evidence. The credibility of the witnesses and their testimony is within the domain of those matters entrusted to a jury for resolution. See Garcia v. State, 919 S.W.2d 370, 382 n.6 (Tex.Crim.App. 1994). As an appellate court we may only set aside the jury's verdict for factual insufficiency if the entire record shows that evidence supporting the jury's finding is so weak as to be clearly wrong and manifestly unjust. See Johnson, 23 S.W.3d at 11. The record before us does not clearly reveal that a different result from that reached by the jury is appropriate. Resolution of conflicts in testimony turns on an evaluation of credibility and demeanor of the witnesses, which is primarily a determination to be made by observation of the witnesses giving the testimony. See id. at 8. The jury's finding that appellant possessed a firearm in Lynn County is not supported by such weak evidence that it is clearly wrong and manifestly unjust. Appellant's first issue is overruled.

III. IMPROPER JURY INSTRUCTION ON VENUE

By his second issue, appellant contends that the jury charge contained erroneous instructions on venue. He asserts that the court instructed the jury as to provisions of Articles 13.17 and 13.19, when Article 13.18 was the proper provision to be applied. Appellant asserts that Article 13.17 only authorizes an allegation of venue in the county of prosecution when Chapter 13 of the Code of Criminal Procedure contains a specific venue provision for the offense charged. Because there is no specific venue provision in Chapter 13 for the offense of unlawful possession of a firearm by a felon, appellant asserts that Article 13.17 is inapplicable to his case. Appellant further asserts that because evidence established that the offense was allegedly committed in Lubbock County where appellant sold the pistol, the jury should have been instructed on the general venue provisions of Article 13.18, and not the provisions of Article 13.19, which address offenses for which venue cannot be determined.

Appellant cites Wood v. State, 573 S.W.2d 207 (Tex.Crim.App. 1978) as authority that (1) Article 13.19 is applicable to cases in which the county or counties in which the offense took place is in factual dispute, but not to cases in which only the locus of the commission of certain elements is in dispute, and (2) Article 13.18 applies to prosecutions in counties in which the offense was committed.

Appellant claims that he was egregiously harmed by the instructions in the charge because the evidence was insufficient to prove that he possessed a firearm in Lynn County. He posits that the evidence presented by the State would have allowed a finding that he possessed a firearm in Lubbock County, and that such evidence and the court's instruction would have allowed the jury to find venue proper in Lynn County, despite the fact that he was not indicted under the venue provisions of Article 13.19. He cites no authority for his allegation that the instructions resulted in egregious harm.

A. Standard of Review and Law

If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is "calculated to injure the rights of defendant." In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1984) (en banc). If proper objection was not made at trial, reversal is warranted only if the error is so egregious and created such harm that the defendant "has not had a fair and impartial trial." Id. The degree of harm must be determined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Id.

B. Analysis

The court instructed the jury as follows:

An indictment may allege that the offense was committed in the county where the prosecution is carried on. To sustain the allegation of venue, it shall only be necessary to prove by the preponderance of the evidence that by reason of the facts in the case, the county where such prosecution is carried on has venue.

If an offense has been committed within this state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he is apprehended, or in the county to which he is extradited.

The first paragraph of the court's instruction is effectively a variation of both Articles 13.17 and 13.18 concerning proof of venue. The burden of proof is properly stated and allocated to the State. The instruction does not preclude a finding of venue under the language of the indictment in this matter. The second paragraph effectively instructs the jury as to the provisions of Article 13.19.

We have previously overruled appellant's issue asserting that the evidence was factually insufficient to support a finding that appellant possessed a firearm in Lynn County. Thus, appellant's claim of egregious harm because of insufficiency of the evidence to find venue in Lynn County is not well taken.

Moreover, the application paragraph of the jury charge instructed the jury that appellant was to be found guilty as charged in the indictment ". . . if you find from the evidence beyond a reasonable doubt that on or about March 14, 1999, ⁽²⁾ in Lynn County, Texas, the defendant, Robert Miller, did then and there intentionally or knowingly possess a firearm, . . ."; but, otherwise, appellant was to be found not guilty. The application paragraph, therefore, did not allow the jury to find appellant guilty of possessing a firearm in any county other than Lynn County, which was the county charged in the indictment, despite the second paragraph of the venue instructions. And, the verdict forms required the jury to find appellant either guilty or not guilty of the offense of unlawful possession of a firearm "as charged in the indictment," which restricted the jury's consideration to whether appellant possessed a firearm in Lynn County.

In reviewing the entire record, the final arguments and the jury charge, we conclude that appellant has not shown that even if the jury charge was in error, the harm was such that he did not have a fair and impartial trial; that is, he did not suffer egregious harm by such error. We overrule appellant's second issue.

CONCLUSION

Having overruled both of appellant's issues, we affirm the judgment of the trial court.

Phil Johnson

Justice

Do not publish.

1. Further references to an article of the Code of Criminal Procedure will be by reference to "Article _."

2. The date of the offense alleged in the charge of March 14, 1999, is at variance with the offense date alleged in the indictment of March 14, 1998. Appellant did not object in the trial court to the variance between the dates alleged in the indictment and the charge, nor has appellant assigned any error to the variance on appeal.