Ex Parte: Zakee Kaleem Abdullah ( 2011 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00043-CR

                                                ______________________________

                                       EX PARTE:  ZAKEE KALEEM ABDULLAH

                                      On Appeal from the 202nd Judicial District Court

                                                             Bowie County, Texas

                                                       Trial Court No. 11F0008-202

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

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            Zakee Kaleem Abdullah has filed two appeals, both from orders by a trial court denying the full relief sought in his application for habeas corpus.  In this case, he was indicted for stealing between $1,500.00 and $20,000.00 from an individual.   In the companion case, he was indicted for the criminal offense of holding himself out as a lawyer, although not licensed to practice law. Abdullah states that bail was set at $50,000.00 on the present offense, at $10,000.00 on the companion prosecution, and that he was also subject to a parole hold which caused his continued incarceration. 

            In both cases, Abdullah is representing himself.  He filed an application for writ of habeas corpus on February 23, 2011, in which he sought habeas relief based upon arguments that (1) a parole hold unrelated to these offenses was violative of the supremacy clause of the United States Constitution, and (2) Tex. Code Crim. Proc. Ann. art. 17.151(i)(1) also requires his release on a personal bond because he had been in custody for ninety days, and the State was not ready for trial. 

            His efforts to obtain habeas relief under the parole hold are necessarily unavailing; as the State has correctly pointed out, such an action is a post-conviction application for writ of habeas corpus, and thus is solely within the jurisdiction and authority of the Texas Court of Criminal Appeals. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2010); Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 483 (Tex. Crim. App. 1995).  Thus, the trial court did not err by denying the application in part, as the application for habeas to attack his continued incarceration under the parole hold is solely within the jurisdictional ambit of the Texas Court of Criminal Appeals. 

            Abdullah also contends that the court erred by denying his applications because as an indigent, the trial court’s order lowering bail from $60,000.00 to $25,000.00 remains a bond which he, an indigent, cannot possibly make. Thus, he argues, the court should have lowered his bond to the level of a personal recognizance bond because the amount was excessive, and because as a defendant who has chosen to represent himself—that failing to do so makes it impossible for him to adequately prepare his defense, in violation of federal constitutional requisites. 

            Abdullah argues that the state statutes and regulations conflict with his right to self-representation.  He neither specifies which statutes he complains of, nor does he explain how such a conflict occurs—save only that he was not released.  Abdullah argues that the Federal Constitution necessarily controls over state statutory law, and cites Howlett v. Rose, 496 U.S. 356 (1990), for that proposition.  That is true as an abstract statement, but there is no authority, federal or otherwise, which requires a defendant to be released from jail to act as his or her own attorney more effectively, and we will not stretch current law to create such authority. 

            Abdullah also argues that the State failed to show that it was ready for trial within the ninety day deadline specified by the Texas Code of Criminal Procedure, thus his release was required.  The State does not suggest either that the ninety days have not expired or that it was ready for trial.

            Article 17.151 of the Texas Code of Criminal Procedure provides that if the State is not ready for trial within ninety days after commencement of detention for a felony, the accused “must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action.”  Tex. Code Crim. Proc. Ann. art. 17.151, § 1 (Vernon Supp. 2010).  The trial court thus has two options:  release Abdullah on personal recognizance, or lower his bail.   In this instance, the trial court reduced the amount of bail required on both of the prosecutions for which Abdullah is incarcerated.  The requirements of the article were thus met.  Error has not been shown.

            We affirm the order of the trial court.

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          June 6, 2011   

Date Decided:             June 7, 2011

Do Not Publish          

tn1' href="#_ftn1" name="_ftnref1" title="">^[1]  The State objected, and the trial court held a hearing outside the jury’s presence in which Lester’s counsel argued,

Your Honor, if the child -- extraneous bad acts or conduct of the child is not about her emotional stability.  That’s not a bad act or that’s not extraneous conduct, that’s -- we’re talking about her emotional stability. . . .

            The whole thing about this case is this child’s credibility.  The fact that she has had emotional difficulties; that’s [sic] she has been hospitalized in a mental institution -- . . . on three different occasions is not a bad act.

The State argued, “The fact that she might’ve had emotional problems as a result of whatever it may be, shouldn’t come in whether this man committed this crime or not.”  The court sustained the State’s objection.

            Lester’s counsel asked the court to “make a Bill,” and was allowed to question the mother outside the jury’s presence.  The testimony during the offer of proof established that the child was twice hospitalized for emotional difficulties, attempted to harm herself, threatened to kill herself, “self-mutilat[ed] herself” to “deal with the situation” when the mother “put her under house arrest,” and that the last instance of self-mutilation occurred in March 2011.  Throughout the trial, the child victim expressed her love for Lester, and the emotional difficulties she experienced appeared to stem from her forced isolation from him. 

IV.       Analysis

            The record in this case demonstrated that the child’s emotional issues manifested after her involvement with Lester was discovered.  During direct examination, the victim’s mother testified Lester was spending time with her daughter during the summer and had purchased a cell phone for her daughter.^[2]  The mother testified she allowed the two to spend time with each other “until it got to a point that me and her daddy thought something was going on . . . . When we tried to intercept, she got aggressive and started, you know, retaliating, wanting to kill herself, stuff like that.  That’s when we knew something was wrong.”  The mother also added that her daughter “was self-mutilating herself to deal with” the “house arrest” she was placed on by her parents, and that the daughter had emotional problems “[d]ue to this.” 

            We are unable to pinpoint an argument as to how the evidence of this child’s emotional disturbance occurring after the alleged acts could be used to impeach her credibility.^[3]  There was no suggestion that these emotional problems could impair her ability to recall events, would contribute to a motive to fabricate the allegations, or would otherwise compromise the victim’s credibility.  Thus, the trial court was within its discretion to determine there was no logical nexus connecting the victim’s emotional problems with her credibility.  We overrule Lester’s sole point of error.^[4]

V.        Conclusion

            We affirm the trial court’s judgment.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          December 12, 2011

Date Decided:             December 14, 2011

Do Not Publish

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^[1]This response was never struck from the record, and the jury was not asked to disregard the response.

^[2]The mother could not remember what date the cell phone had been purchased. 

^[3]The State alleged that Lester had committed sexual assault of a child in August and September 2010.  Lester’s brief states that the victim’s mother testified the child “had been admitted to two different mental institutions, had attempted on more than one occasion to harm herself, . . . and that this had continued from at least the Summer of 2010 until March, 2011.”  The brief specifically argues “these mental problems had existed either prior to or contemporaneously with the alleged crime.” We do not believe that the record establishes Lester’s proposition.  The support for Lester’s assertions in the brief cites to the following portion of the offer of proof:  “Q.  I believe you testified earlier that sometime in the summer -- and pardon me, I don’t have the date -- sometime in the summer of 2010, she made a threat to you, or expressed that she was going to kill herself or harm herself . . . ?  A.  Yes.  But can I explain why?”  The mother did not give a time frame for the emotional disturbances during her direct examination other than stating they began after the child’s parents began to suspect the nature of the improper relationship.  She further clarified during the offer of proof that her daughter was “hurting herself to deal with the situation” after placement on “house arrest.” 

^[4]Moreover, Lester is unable to demonstrate harm.  Substantial rights are not affected by the erroneous admission or exclusion of evidence “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.”  Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (footnotes omitted).  If the evidence is generally cumulative of other evidence introduced in the case, no harm attaches.  See Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding that to show harm, the excluded evidence must be controlling on a material issue and not cumulative of other evidence).  The offer of proof was generally cumulative to the mother’s testimony during direct examination.