NO. 07-00-0151-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B SEPTEMBER 10, 2001

______________________________ JERRY WAYNE LOUIS,

Appellant
v. THE STATE OF TEXAS,

Appellee

_________________________________ FROM THE 230 TH DISTRIC T COURT O F HARRIS COU NTY; NO. 826,655; HON. BELINDA HILL, PRES IDING

_______________________________ Before BOYD, C.J., and QUINN, and JOHNSON, JJ. J erryW ayne Lou is (appe llant) ap peals hi s convictio n for ba il jumpin g. Throu gh eleven points of error , he claims tha t 1) the evidence is legally and factually

insufficient to support the jury ’s verdi ct, 2) his counsel was ineffective, 3) the tri al court err ed in admitting evidence of an extraneousoffense, 4) the trial cour t erred in den ying hi m a mistrial due to the State’s suppos ed improper jur y argument , and 5) the tria l court abused its discr etion by denyi ng app ellan t’s mo tion to suppr ess. We affirm

.1 The record does no t r efl ect t hat t he Stat e dismissed t he fi rst indi ctment aft er obt aini ng the

second. 2

Points One and Two – Sufficienc

y of the Ev

idence Appellant i nitially

contends that the evidence i s legall y and factuall y insufficient to support the jury ’s verdi ct. His ar gument is pr

emised upon the bel ief that re-indicti ng someone for the same of fense contained in a prior ( untried) ind ictment invalidates or some how supersedes the prior indictment. W e disagree and overrule the points. According to the record , the State initia lly indi cted appellant for theft. Thatindictment
was assi gned Cause No. 802607. Upon h is arrest for that crime he secured his release through posting a bon d. According to the face of the instrument , the sureties obligated themselvesto pa y $8 0,00 0 if a ppel lant fail ed toappe ar a t thetri al o f C ause No. 8 02607. Prior to the trial of that cause, however, the State returned to the grand juryand induced it to issue another indictment against appellant. Though the su bstantive offense for which he
was to be tried was the same as that encompassed in the first i ndictment, the second included various

enha ncem ent p arag raph s omi tted from the first. Fur thermore, the proceeding represented by the seco nd indictment w as assigned Cause No. 811447. 1 Yet, when it came time to try the accusations ag ainst appellant , the court set Cause No. 802607 for trial. Needless to say, appellant did not appe ar at the desi gnated da te and time. Cons eque ntly, the trial court forfeited the bond obtained in caus e No. 802607, and the State indicted, tried and convic ted appellant for fail ing to appear atthe trial of tha t same cause. Before us, appellant d oes not contend that he was unaw

are of the setting or that he had justifiable r

eason to ab sent himself from the t rial of Cause N o. 802607. Instead, he argues th at he could not be convicted because the second i ndictment somehow3

superceded or nullified the first. And, since the bond issued in referen ce to the first cause
was never

amended to encompass Cause No. 81 1447, he could not be convicted of bail jumping viz

Cause No. 802607, the argument conti nues. So, as can be seen, the enti rety of appellant’s p osition is based upon the beli ef that re- indicting an acc used for the sa me offense encompassed in a p r ior in dictment automatically v itiates the prior indict ment. Ther e in lies the pr

oblem with appellant’s contention for the pr emise upon whi ch he relies is wrong. That an accused has be en indicted doesnotprevent the State from re-indicting him for the s ame o ffe nse or for an offense arising from the same act. Wallace v. State , 145 Tex. Cr. R. 625,170 S.W.2d 762, 764 (Tex. C rim. App. 1943); Bonner v. State , 29 Tex. App. 230,15 S.W . 821 , 821 (Tex. App. 1890). And, when such a cir cumstance occur

s, it is c lear thatthe second indi ctment merely institutes anothe r, ne w criminal ac tion against

the accused. Trevino v. State , 900 S.W.2d 815, 817 (Tex. App.–Corpus Christi 199 5, no pet.). Itdoes not ipso facto

vitiate the first. That this is t rue is il lustrated by the court’s words in Bonner

. There, in recognizi ng the authori ty of the State to re-indic t an accused, thecourt noted that the State was put to the choice of having to select w hich action toprosecute. Bonner v. State , 15 S.W. at 821 (stating that th ough a prior indictment does not ba r a subseq uentone for the same offense, the accused can only be tried upon one)

. If th e second indictment

automatically

negated the firs t, then there would be no need to c hoose. Yet, because the Bonner court said that theState had to choose which to pursue, we must necessarilydeduce th at th e first charg ing instrument was not n ullified simpl y throug h the execution of a second one. S ee United States v. Stricklin , 591 F.2d 1112, 1115 n.1 (5 th2 W e say “ potent ial ly bias” because th is same veni re mem ber acknowl edged that ther e exist

both good and bad

poli cemen. This i mplici tl y suggest s that she knows that

some officer s cannot be tr usted or believe d. 4 Cir.), cert. denied , 444 U.S. 963, 100 S.Ct. 449, 62 L. Ed.2d 375 (1979) (reco gnizin g that two indic tme nts invol ving thesame crime may be outstanding at the same time) . In applyi ng this reas onin g to th e cas e at b ar, we hold that the first indictme nt issued against appellant remained viable des pite the issua nce of the second. And , because it r emained viabl e, the foundation underlying appellant’s contentions i s inaccurate. So, we r eject the contentions and hold that the State was entitled to pr osecute and conv ict appellant when he failed to appear on May

14, 1999 for the tr ial of Cause No. 802607. Points Thr

ee and Four

– Ineff ective Assistan ce of Counsel Next, appellant

alleges t hathis trial counsel rendered ineff ective assistance because he did not stri ke Freda Mc Namara from the jur y veni re. McNamara was allegedly susceptible to exclusion once she profess ed a bias towa rd police officer s. That is, sh e informed the court during voir dire that she would assign g reater credi bility to a police officer since she had been marri ed to one for a number of year

s and had know n many others. In view of this comment, appellant’s counsel should ha ve struck McNamara from the venire
or otherwise challenged her for cause, so says appellant . And, because he did not, counsel
was allegedlyin e ff

e c t i v e , w h i c h i n e ff

e c t i v e n e s s e n t i t l e d a p p e l l a n tt o a n e w t r i a l

. We disagree and overrulethe points for s everal r easons. Assum ing arguendo that the failure to strike a pote ntially bias venire member fell below the standard of pre vailing pr ofess ional norms, appellant do es not gauge the effe ct of this mistake ag ainst the total ity of the representati on prov ided hi m. 2 See McFarland v.3 Appell ant admit ted t hat he knew of the May14, 1999 tr ial date and opted no t t o appear. So too did he plead tr ue to bei ng previ ously convi cted of

escape and bur glar iz ing a motor vehi cle, both of which wer e felo nies ave rred in the ind ictm ent fo r pur pos es o f enh anc em ent. 5 State , 928 S.W.2d 482 , 500 ( Tex. C rim. App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997 ) (holding that the appellan t must provethat counsel ’s er rors “judged by the tota lity o f the represen tation, not by isolated ins tances of error . . . denied him a fair trial”). Nor does he a ttempt to illus trate why the outcome of

the t rial wo uld h ave differed butfor the purported mistake. See Tong v. State , 25 S.W.3d 707, 71 2 (Tex . Cri m. App. 2000), cert. denied, _U.S._, 121 S.Ct . 2196, 149 L.Ed.2d 1027 (2001) (holdi ng that
an appellant must prove ther e exis ts a re ason able prob abil ity th at th e out come would have been different but f or counsel’ s unprofessional errors). Indeed , he ignores the evidence illustrat ing that his tri al attorney filed pre-tr ial motions, con ducted an active v oir dire, vigorously

cr oss -examined oppos ing wi tnesses, voiced objecti ons to evide nce and argument, pro ffere d wi tnes ses on be half o f app ellant, and arg ued on behalf of his cl ient during both the guil t / innocence and punishment phases of the trial. So too does he ignore 1) the large q uantum of evidence ev incing hi s guilt for the crime char

ged in the indictment and 2) his ow n admission that he had committed and been convicted of the felonies all eged in the indictment for

purposes of enhancemen t. 3 Given the limited focus ofappellant’s complaint, the totality

of the representati on provided a ppellant at trial, and t he quantum of the evidence illustrating his guilt and supporting the sentence levied, w e cannot say thatbut for the sup pose d mistake there existed a reasonab le probability that the outcome would have differed.6 Points Five and Six – Admission of Evidence of Flight Throu gh his fifth and six th po ints of error, appellant claims the trial court erred in admitting evidence of an extraneous offense, i.e. his high speed flight from poli cemen when they encountered him after May 14, 1999 . Allegedl y, the tr ial court erre d because the evidence was either irrelevant or too prejudicial (assuming ithad relevance). We overrule the point for several reasons. First, evidence of

flight has been held to evi nce a consciousness of guilt, as appellant himself acknowledges. Bigby v. State , 892 S.W.2d 864, 883 (Tex. Crim. App. 1994), cert. denied , 515 U.S. 1162, 115 S.Ct. 2617, 132 L.E d.2d 860 (1995). So, it was relevant to the issue of mens rea . Second, the evidence of flight also tends to rebut appellant ’s belief that he was entit led to excus e himself from appeari ng because he di d not think his attorney

was prepared. Simply put , if he did not believe he had to appear, ther e would be no reason for him to flee when seen by the police. Third, the jurors were instructed to limit their consideration of the evidence to the purpo se for which it was admi tted. Fourth, w hile the evidence in questi on may evi nce the commissi on of another crime ( i.e. resis ting a rrest ) we cannotsay w ith any confid ence that it was o f the ilk which would induce jurors to convict appellant

for reason s other t han his guilt for the off ense charged in the indictment . It did notinvolve a crime which the public may generally find to be heinous, such as sexua l assault. Nor does it necessarilycause one’s emotions to become enr aged. Thus, the potential of its adm ission into evidence causing undue prejudice was de minimis

. Fina lly, even assu ming arguendothat the trial court erre d in receiv ing it i nto evidence, we havedifficulty i n seeing how appellant was harmed. Again, the evidence of7

appellant’s guilt for the offen se charged was overwhelmin g. Brown v. State, 978 S.W.2d 708, 714 (Tex. App. – Amarillo 1 998, pet. ref’d.) (recogni zing that the quantum ofevidence indicating guilt i s a factor to be considered in assessing harm). Moreover, that evidence not onlycame from third- parties but al so from appellant’ s own mouth. He himself admitted that he knew of the trial date butopted not to appear. Moreover , appellant refer s us to nothing of record which w

ould support an i nference that proof of his fligh t from the police somehow influenced the jury’s verdict. Instead, he merely concludes that the supp osed error wa s harmful. So, without evidence of harm, we can hardly call foul.

Points Seven through Ten – Improper Jury Argument Appellant

next alleges that the trial court erred in deny ing him a mis trial. H e believed himself entitled to same because the State alleged ly engag ed in improper jury ar gument at both the guil t / innocence and punishment ph ases of the trial. W e disagree and overrule the point. As to the first i nstance of impropriety, the State uttered (during its summ ation in the guilt/ in noce nce p hase ) th at “ defe ndan ts lie.” Appellant objected to the com ment, which objection the cou r t sustained. S o too did the cour t instruct the jury to disregar d the utterance, as requested by appellant. Beca use th e trial cour t instructed the jury

to disregard the c omment, we not only presume that the j ury obeyed, Colburn v. S tate , 966 S.W.2d 511, 52 0 (Tex . Cri m. App. 1998) ( noting that w e pres ume the court’s instructi ons are foll owed by the jury) , but also conc lude that the ins truction ameli orated any pote ntia l harm. Wilkersonv. State , 881 S.W .2d 321, 327 (Tex. Crim. App. 19 94) cert. denied , 513 U.S. 1060, 115 S.Ct. 67 1, 130 L.Ed.2d 604 ( 1994) (holding that an instruction to disregard8

a comment normally

cures the er ror). T his is espec ially s o where, as here, the comment
was 1) not repeated or

otherwis e highlig hted by the Sta te, 2) a bri ef remark encompassed within per miss ibl e ar

gume nt, a nd 3)

not of th e type sufficient ly egr egious or e xtreme to survive an instructi on to disreg ard. Thus, we find tha t t he trial cour t did not abuse i ts discretion when it deni ed appellant’s motion for mistri al. As to the second instance, theState argued (during s ummation in the puni shment phase) that appellant’s fam ily did not appear as

witness es because they had “given up on him.” Again, appel lant objected, a nd, again, the trial cour t sustained the objection. So too did the trial court grant appellant’s request for an instruction and direct the jury to disregard the comment. Yet, l ike before, it r efused to grant amistrial. Given that the court instructed the jury to disreg ard the utterance, that we mus t presume the jur y abided by

the instruct ion, and that the comment at issue was not so flagran tas to survive the ameliorative effect of
an instructi on to disreg ard, we ag ain find no abused di scretion on t he part of the tri al court.

Point Eleven

– Moti on to Sup

press Extraneo us Offenses Fina lly, appellant alleges that the trial court erred in ref using to grant his moti on to suppress ev idence. We overrule the p oint. As the co mp lainanton appeal, an appel lant has the bur den to inform us of the supposed error

and explain why i t warran ts rever sal of the judgment . It is not o ur obligat ion to divine or

develop is sues for

him. Nor a re we re quired to bl indly peruse a volumi nous record to discover evidentiary support for the is sues laid before us. Labrador Oil Co. v. Norton Drilli

ng Co. , 1 S.W .3d 795, 802-803 (T ex. App.--Amarillo 1999, no pet.). Again, the duty lies w ith appellant

to provi de us with a “clear an d concise arg ument” as well as “citation to authorities and to the record.” T EX
. R. A PP
. P ROC . 38.1(h); Labrador Oil Co. v. Nor

ton9

Drilli ng Co. , 1 S.W.3d at 802-803 (stating that the appellan t has the burden of directi ng the appellate court to the portions of the record which supported his complaint). Sho uld he fail to do so, he has nei ther met his bur den or preser

ved his co mplaint for rev iew. Here, in his nine p age discussion on the law of search and seiz ure, appellant omitted fr om h is appellate b rief specific r eference to the itemsallegedly obtained throug h the supposed improper search. Similarly absent is specific refe rence to where in the record this unkn own matter wasoffered and received into evi dence at the tri al of the cause. This i s of
some moment for ifthe items were not tendered i nto evidence they could n ot be the source of error. Fain v. State , 986 S.W.2d 666, 681-82 (Tex . App.--Austi n 1998, pet. ref’d.) (noting the appellant’s failure to identify the items allegedly seized and to direct the court’s attention to recor d whe re suc h itemswere int roduced into evid ence). In effect, the appellant left us to wade throug h at least nine volumes of record in searc h of unknown evidence to fill the void wi thin hisbri ef. And, because we are left to do that , we concl ude that appellant failed to carry his appellateburden and preser ve his compl aint. The judgment of the tr ial court i s affirmed.

Brian Quinn Justice
Publish.