PAUL GATES v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice Moseley

A jury convicted Paul Gates of aggravated robbery.   In five points of error, Gates asserts the evidence was legally insufficient to support the verdict;  the trial court erred by improperly defining the conduct elements in the jury charge, by including a definition of reasonable doubt in the charge, and by informing the jury about good conduct time;  and the trial court lacked jurisdiction to hear the case and render judgment.   The background and facts of the case are well-known to the parties;  thus, we do not recite them here.   Because all dispositive issues are settled in law, we issue this memorandum opinion.  Tex.R.App. P. 47.2(a), 47.4. We affirm the trial court's judgment.

In his first point of error, Gates asserts the evidence was legally insufficient to support the verdict because no rational jury could conclude Gates knew his accomplice would produce a handgun and threaten the complaining witness during the robbery.   The “argument” section of Gates's brief on this point only provides a recitation of relevant facts;  Gates's brief does not include any legal authorities or make any legal arguments-explaining how the law regarding evidentiary sufficiency or parties applies to the facts-to support this point of error.  Tex.R.App. P. 38.1(i).   We reject Gates's first point of error as inadequately briefed.

Gates phrases his second point of error as “the trial court erred by improperly limiting the conduct elements in the jury charge.”   However, Gates argues the trial court “committed error by failing to limit the conduct elements of the charged offense.”   Both of these arguments fail.   See Chanthakoummane v. State, No. AP–75794, 2010 WL 1696789, at *26 (Tex.Crim.App. Apr. 28, 2010) (not designated for publication) (trial court properly instructed the jury in a robbery case).   Because the conduct elements in the jury charge in Gates's case were the same as those in Chanthakoummane, we overrule Gates's second point of error.

In his third point, Gates argues the trial court erred by instructing the jury:  “[i]t is not required that the prosecution prove guilt beyond all possible doubt;  it is required that the prosecution's proof excludes all ‘reasonable doubt’ concerning the defendant's guilt.”   We rejected this argument in a previous case.   See O'Canas v. State, 140 S.W.3d 695, 702 (Tex.App.—Dallas 2003, pet. ref'd).   The Court of Criminal Appeals rejected Gates's fourth point of error:  the trial court erred by including language in the charge regarding good conduct time that is inapplicable to him.   See Luquis v. State, 72 S.W.3d 355 (Tex.Crim.App.2002).   For the reasons stated in those cases, we overrule Gates's third and fourth points of error.

Finally, Gates asserts the trial court lacked jurisdiction to hear the case and render judgment.   The basis of Gates's argument is the indictment in his case was presented to Dallas Criminal District Court Number Six;  subsequently, the case appeared on the docket of Dallas Criminal District Court Number Five, which conducted the trial and rendered judgment.   No transfer order was executed.   Because Gates did not file a formal plea to the jurisdiction with the trial court, Gates failed to preserve this complaint for appeal.   See Burnes v. State, No. 05–10–00486–CR, 2011 WL 5119442, at *4 (Tex.App.—Dallas Oct. 28, 2011, no pet.) (not designated for publication) (citing Lemasurier v. State, 91 S.W.3d 897, 899 (Tex.App.—Fort Worth 2002, pet. ref'd));  Brown v. State, No. 05–10–00328–CR, 2011 WL 2477649, at *5 (Tex.App.—Dallas June 23, 2011, pet. ref'd) (not designated for publication).   We overrule Gates's fifth point of error.

Having resolved Gates's five points of error, we affirm the judgment of the trial court.

S

Court of Appeals

Fifth District of Texas at DallasJUDGMENT

PAUL GATES, Appellant

No. 05–11–00404–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 5th Criminal District Court of Dallas County, Texas.  (Tr.Ct.No. Cause No.F10–45830–L).

Opinion delivered by Justice Moseley, Justices Lang–Miers and Murphy participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered March 9, 2012.

/Jim Moseley/

JIM MOSELEY

JUSTICE

JIM MOSELEY JUSTICE