Opinion filed September 26, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00242-CR

__________

MICHAEL GEIGER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 106th District Court

Dawson County, Texas

Trial Court Cause No. 09-6938

M E M O R A N D U M O P I N I O N

The jury convicted Michael Geiger of assault on a public servant and 

assessed his punishment at confinement in the Institutional Division of the Texas 

Department of Criminal Justice for life. Appellant challenges his conviction in 

nine issues. We affirm.
2

Background Facts

Appellant assaulted Mario McDaniel, a correctional officer at the Smith Unit 

of the Texas Department of Criminal Justice (TDCJ) located in Dawson County,

by kicking him in the groin and head-butting him. The assault occurred when 

Officer McDaniel and two more officers entered Appellant’s cell in order to 

conduct a search of his cell. The assault occurred when Officer McDaniel entered 

the cell. Appellant admitted at trial to assaulting Officer McDaniel. He claimed 

that he acted in self-defense based on prior interactions between himself and prison 

officials and that the correctional officers’ conduct constituted entrapment.

Analysis

In his first issue, Appellant complains of several alleged irregularities 

regarding “the complaint, information and affidavits” to the extent that they were 

misleading to the grand jury. Among other things, he contends that they were 

deficient because they were not filed by the actual victim of the offense, were not 

sworn under oath, and were not reduced to writing. Appellant’s first issue also 

addresses complaints concerning the qualifications of the prosecutor (see Issue 

No. 2 below). Appellant is essentially challenging the manner in which the 

criminal case was instituted. We first note that the record does not contain the 

“complaint, information and affidavits” that Appellant is challenging. An appellant 

must present a record showing error requiring reversal. See Amador v. State, 221 

S.W.3d 666, 675 (Tex. Crim. App. 2007); Word v. State, 206 S.W.3d 646, 651–52 

(Tex. Crim. App. 2006); Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim.

App. 2003) (“It is, however, the appealing party’s burden to ensure that the record 

on appeal is sufficient to resolve the issue he presents.”). The record on appeal is 

not sufficiently developed for us to address Appellant’s complaint. Furthermore, 

Appellant was charged by an indictment returned by the grand jury. There is no 

statutory requirement for a prosecutor to file a complaint or information before a 
3

grand jury issues an indictment. Ferguson v. State, 335 S.W.3d 676, 682 (Tex.

App.—Houston [14th Dist.] 2011, no pet.). We overrule Appellant’s first issue.

In his second issue, Appellant complains of the appearance of a member of 

the special prosecution unit as the prosecutor at trial in place of the duly elected 

district attorney for Dawson County. The Texas Constitution states that elected 

officials are permitted to prosecute criminal offenses. See TEX. CONST. art. V, 

§ 21. Nonetheless, elected district and county officials are permitted to employ 

other attorneys to prosecute cases. TEX. GOV’T CODE ANN. § 41.302 (West Supp. 

2012). The courts have also determined that “[a] ‘special prosecutor’ is permitted 

by the elected district attorney to participate in a particular case to the extent 

allowed by the prosecuting attorney, without being required to take the 

constitutional oath of office.” State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex.

Crim. App. 1993) (Clinton, J., concurring). Finally, the Court of Criminal Appeals 

has specifically stated that the special prosecution unit has the authority necessary 

to prosecute inmate offenses. Ex parte Jones, 97 S.W.3d 586, 589 (Tex. Crim.

App. 2003). Accordingly, a member of the special prosecution unit had the 

authority necessary to prosecute Appellant. Appellant additionally asserts that the 

special prosecutor withheld video evidence from him. However, there is evidence 

that no video of the incident existed. Accordingly, we overrule Appellant’s second 

issue.

In his third issue, Appellant complains that the trial court erred in not 

awarding him attorney’s fees for representing himself. This complaint is without 

merit. The Tyler Court of Appeals recently determined that indigent defendants 

who choose to represent themselves are not “appointed” under Article 26.04 and 

are not included in the category of persons who are entitled to an award of 

“attorney’s fees” under Article 26.05. In re Kennedy, No. 12-12-00203-CR, 2012 

WL 2344472 (Tex. App.—Tyler June 20, 2012, orig. proceeding) (mem op., not 
4

designated for publication); see TEX. CODE CRIM. PROC. ANN. arts. 26.04, 26.05 

(West Supp. 2012). We overrule Appellant’s third issue.

In his fourth issue, Appellant complains that the State withheld evidence 

from discovery. We first note that a criminal defendant’s right to discovery under 

the United States Constitution is limited to exculpatory or mitigating evidence in 

the State’s possession, custody, or control. In re State, 162 S.W.3d 672, 676 (Tex.

App.—El Paso 2005, orig. proceeding). Beyond this, a criminal defendant has no 

general right of discovery. Id. The record reflects that Appellant presented his 

contentions to the trial court regarding the State allegedly withholding evidence. 

In each instance, the trial court heard evidence from the prosecutor indicating that 

the matters requested by Appellant did not exist. We conclude that the trial court 

did not abuse its discretion in determining that the matters did not exist and that the 

State did not willfully withhold production of evidence. See Oprean v. State, 201 

S.W.3d 724, 726 (Tex. Crim. App. 2006) (Decisions to admit or exclude evidence 

are reviewed under an abuse of discretion standard.). Moreover, Appellant does 

not complain of the admission of any evidence withheld from him. Id. (Evidence 

willfully withheld from disclosure under a discovery order should be excluded.). 

We overrule Appellant’s fourth issue.

In his fifth issue, Appellant contends that the trial court erred in failing to 

dismiss the criminal charges against him prior to trial based upon his allegation of 

entrapment. We disagree. Entrapment is a defense to prosecution. TEX. PENAL 

CODE ANN. § 8.06(a) (West 2011). The entrapment defense is unusual in that it 

may be tested and determined in a pretrial hearing. See CRIM. PROC. art. 28.01, 

§ 1(9) (West 2006). This procedure is disfavored because it results in a piecemeal 

trial. Hernandez v. State, 161 S.W.3d 491, 498 (Tex. Crim. App. 2005). The 

defendant bears the burden of establishing entrapment as a matter of law with 

conflict-free, uncontradicted, uncontested, or undisputed evidence. Id. at 499. If 
5

the trial court denies the motion, our standard of review on appeal is de novo. Id.

at 500. We affirm if any rational trier of fact could have concluded that the 

undisputed facts failed to establish all of the elements of entrapment. Id.

The elements of entrapment are (1) the defendant engaged in the conduct 

charged (2) because he was induced to do so by a law enforcement agent (3) who 

used persuasion or other means, and (4) those means were likely to cause persons 

to commit the offense. Id. at 497. Entrapment includes both a subjective and an 

objective component: the defendant must show both that he was actually induced 

to commit the charged offense and that the persuasion was such as to cause an 

ordinarily law-abiding person of average resistance to commit the crime. 

England v. State, 887 S.W.2d 902, 913–14 (Tex. Crim. App. 1994). “Conduct 

merely affording a person an opportunity to commit an offense does not constitute 

entrapment.” PENAL § 8.06(a).

We conclude that Appellant failed to establish entrapment as a matter of law. 

As later developed at trial, Appellant premised his entrapment contentions on 

previous assaults that allegedly occurred against him in prison and on instances 

wherein his personal property had been taken or destroyed. He also alleged that 

prison officials induced him to commit an assault by not complying with his 

request for a supervisor and camera equipment to be present whenever his cell was 

searched. He additionally alleged that he was induced to commit the assault 

because Officer McDaniel was not assigned to work Appellant’s wing in the 

prison.1

 Viewed objectively, the conduct relied upon by Appellant would not have 

caused an ordinarily law-abiding person of average resistance to commit the crime. 

We overrule Appellant’s fifth issue.

 1

The record reflects that Officer McDaniel was working overtime when the assault occurred and 

that he had been assigned to Appellant’s wing during his overtime shift.
6

In his sixth issue, Appellant complains of the racial composition of the jury 

venire. He argues that he was deprived of his constitutional right to a jury drawn 

from a representative cross section of the community. To satisfy the federal Sixth 

Amendment right to a jury trial, the jury must be chosen from a panel representing 

a fair cross section of the community. Duren v. Missouri, 439 U.S. 357, 359 

(1979); Castaneda v. Partida, 430 U.S. 482, 494 (1977). In Pondexter v. State, 

942 S.W.2d 577, 580 (Tex. Crim. App. 1996), the court held that, to establish a 

prima facie violation of that requirement, an appellant must show that (1) the group 

alleged to be excluded is a “distinctive” group in the community, (2) the 

representation of this group in venires from which juries are selected is not fair and 

reasonable in relation to the number of such persons in the community, and (3) this 

under-representation is due to the systematic exclusion of the group in the jury 

selection process. Appellant has failed to meet the second and third prongs of the 

test. Nothing in the record is actually sufficient to show the racial composition of 

the panel. Moreover, there is nothing to show the requisite “systematic exclusion” 

of particular racial groups in the county of trial. A disproportionate representation 

in a single panel is not sufficient to demonstrate an unconstitutional systematic 

exclusion of distinctive racial groups. Pondexter, 942 S.W.2d at 581. We overrule 

Appellant’s sixth issue.

In his seventh issue, Appellant challenges the indictment because its return 

was allegedly based on hearsay testimony. Appellant’s contention is without 

merit. If an indictment is valid on its face, a party may not go behind the 

indictment to review alleged procedural errors in its presentment. DeBlanc v. 

State, 799 S.W.2d 701, 706 (Tex. Crim. App. 1990); Dean v. State, 749 S.W.2d 80 

(Tex. Crim. App. 1988); Carr v. State, 600 S.W.2d 816, 817 (Tex. Crim. App.

1980); Tarpley v. State, 565 S.W.2d 525, 532 (Tex. Crim. App. 1978). 

Furthermore, when determining whether to present an indictment, a grand jury is 
7

not limited to evidence that would be admissible at trial. See Ex parte Thomas, 

956 S.W.2d 782, 786 (Tex. App.—Waco 1997, no pet.). We overrule Appellant’s 

seventh issue.

In his eighth issue, Appellant appears to be complaining that the trial court 

denied him access to the court system by not protecting his property and evidence 

from being allegedly taken or destroyed by prison officials. It does not appear that 

Appellant preserved this complaint for appellate review. Furthermore, Appellant 

has not cited any authority requiring the trial court to intercede on his behalf with 

prison officials. We overrule Appellant’s eighth issue.

In his ninth issue, Appellant alleges that the sitting district judge, Honorable

Carter T. Schildknecht, had a conflict of interest. This contention is without merit 

because the regional presiding judge appointed Honorable Jay Gibson 

approximately four months after Appellant was indicted, and Judge Gibson 

presided over all subsequent proceedings. We overrule Appellant’s ninth issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

TERRY McCALL

JUSTICE

September 26, 2013

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.