Opinion issued May 29, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00153-CR
                           ———————————
             JEFFERY ARTHUR SYDENSTRICKER, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 179th District Court
                           Harris County, Texas
                       Trial Court Case No. 1368598


                         MEMORANDUM OPINION

      Appellant was charged by indictment with assault, dating violence, second

offender. 1 Appellant pleaded not guilty. The jury found him guilty, and the trial

court assessed punishment at confinement for 25 years.        The judgment also

1
      See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(A) (Vernon Supp. 2013); TEX.
      FAM. CODE ANN. § 71.0021(b) (Vernon 2014).
identified $424 in court costs. In three issues on appeal, Appellant argues (1) the

evidence is insufficient to establish he had committed a prior offense of assault,

dating violence, (2) the State violated his due process rights by instructing a

witness not to speak with Appellant’s investigator, and (3) the court costs should

be deleted because there is insufficient evidence to support the costs.

      We affirm.

                                    Background

      By December 24, 2011, Appellant and M. Rose had dated, off and on, for

about 10 years. On the night of the 24th, Rose was at home with her daughter and

Appellant. They had started to watch a movie when Appellant got up to use the

restroom. Rose noticed he had been gone a while and went to check on him. She

found him at a desk in the bedroom, rolling a marijuana cigarette. She swept the

marijuana off the table and onto the floor.

      Appellant became very upset, grabbed Rose by the neck, and pushed her

against the wall. Appellant threatened to kill her. Rose struggled to get free, and

Appellant slapped her across her face. Rose escaped and called 911. Appellant

fled the premises. Rose pressed charges, and appellant was ultimately arrested.

      Rose testified at trial.     During her cross-examination, the following

exchange occurred:

      Q.     Okay. Now, did you have occasion to talk to an investigator by
             the name of Travis Johnson?


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      A.      Is this -- may I ask the DA if that’s the investigator that --

      Q.      No. This was a private investigator. This was an investigator I
              sent to your home to talk to you?

      A.      An investigator sent to my home?

      Q.      Yes. To talk to you.

      A.      There was only [one] investigator[] that called me and said that
              it was for the defense for Jeff.

      Q.      Okay. So he talked to you, told you he was representing Jeff?

      A.      Yes.

      Q.      And you refused to talk to him, didn’t you?

      A.      Absolutely.

      Q.      I am sorry?

      A.      Absolutely.

      Q.      Absolutely. Okay.

      A.      And then I called the DA immediately afterwards to let her
              know that someone had called me.

      Q.      Were you told not to speak to any private investigators from the
              defense?

      A.      She advised me not to speak to anyone.

      Later, the State presented, and the trial court admitted, State’s Exhibits 6A

and 7.     State’s Exhibit 7 was a judgment for a case with the cause number

1067050. The judgment reflects that Appellant was convicted of assault and that

the offense constitutes family violence.         The sentence was suspended, and


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appellant was placed on community supervision for one year.           The judgment

reflects that the date of the offense was July 7, 2001. The judgment was signed on

August 10, 2001.

      State’s Exhibit 6A was a jail card for Appellant from a case with the cause

number 1067050. The jail card had a finger print from the time of commitment

and a finger print from the time of release. The jail card indicates that Appellant

was incarcerated on November 8, 2001 and released on March 11, 2002. There is

a handwritten line on the jail card indicating that the arrest offense was “assault,

family member MRP.” The handwritten date next to it is January 12, 2001.

      Deputy L. Hailey testified at trial.        She is an expert at fingerprint

comparisons.     She obtained fingerprint samples from Appellant during the

underlying trial. She compared those fingerprints to the fingerprint on the jail card

and identified them as matching.

      Rose testified that she and Appellant began dating in 2001. Rose’s mother

testified that, on August 10, 2001, Appellant was convicted for assaulting Rose.

She testified that the assault occurred while Rose and Appellant were dating.

      Following appellant’s sentencing, the trial court signed the judgment. The

judgment indicates that $424 in court costs applied. Appellant filed a notice of

appeal and a bill of court costs was included in the record.




                                          4
                           Sufficiency of the Evidence

      In his first issue, Appellant argues the evidence is insufficient to establish he

had committed a prior offense of assault, dating violence.

A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can

hold evidence to be insufficient under the Jackson standard in two circumstances:

(1) the record contains no evidence, or merely a “modicum” of evidence, probative

of an element of the offense, or (2) the evidence conclusively establishes a




                                          5
reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at

2786, 2788–89 & n.11; see also Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In

viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778.         Finally, the “cumulative force” of all the

circumstantial evidence can be sufficient for a jury to find the accused guilty

beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.

App. 2006).

B.    Analysis

      As it applies to Appellant, a person commits the offense of assault if he

“intentionally, knowingly, or recklessly causes bodily injury to another, including

the person’s spouse.” TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon Supp. 2013).



                                         6
Generally, an assault of this kind is a Class A misdemeanor. Id. § 22.01(b). The

offense becomes a third degree felony, however, if the assault is committed against

a person whose relationship to the defendant is described in section 71.0021(b) of

the Texas Family Code and it is established at trial that the defendant had been

previously convicted of assault against a person whose relationship to the

defendant is described in section 71.0021(b) of the Texas Family Code.          Id.

§ 2.01(b)(2)(A).   Section 71.0021(b) describes “dating relationship” as “a

relationship between individuals who have or have had a continuing relationship of

a romantic or intimate nature. . . .” TEX. FAM. CODE ANN. § 71.0021(b) (Vernon

2014).

      “To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that (1) a prior conviction exists, and

(2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919,

921 (Tex. Crim. App. 2007). There is no specific set of evidence that must be

presented to meet this burden. Id. Some common ways of meeting this burden

      includ[e] (1) the defendant’s admission or stipulation, (2) testimony
      by a person who was present when the person was convicted of the
      specified crime and can identify the defendant as that person, or (3)
      documentary proof (such as a judgment) that contains sufficient
      information to establish both the existence of a prior conviction and
      the defendant’s identity as the person convicted.

Id. at 921–22.




                                        7
      For the third option, documentary proof can be established by use of

“certified or otherwise properly authenticated copies of the judgment and sentence

and records of the Institutional Division of the Texas Department of Criminal

Justice or a county jail that include fingerprints of the accused, supported by expert

testimony identifying the fingerprints of the accused with known prints of the

defendant.” Garner v. State, 864 S.W.2d 92, 97 (Tex. App.—Houston [1st Dist.]

1993, pet. ref’d).

      At the trial below, the State presented, and the trial court admitted, State’s

Exhibits 6A and 7. State’s Exhibit 7 was a judgment for a case with the cause

number 1067050. The judgment reflects that Appellant was convicted of assault

and that the offense constitutes family violence. The sentence was suspended, and

Appellant was placed on community supervision for one year. The judgment

reflects that the date of the offense was July 7, 2001. The judgment was signed on

August 10, 2001.

      State’s Exhibit 6A was a jail card for Appellant for a case with the cause

number 1067050. The jail card had a finger print from the time of commitment

and a finger print from the time of release. The jail card indicates that Appellant

was incarcerated on November 8, 2001 and released on March 11, 2002. There is

a handwritten line on the jail card indicating that the arrest offense was “assault,

family member MRP.” The handwritten date next to it is January 12, 2001.



                                          8
      Deputy L. Hailey testified at trial.       She is an expert at fingerprint

comparisons.       She obtained fingerprint samples from Appellant during the

underlying trial. She compared those fingerprints to the fingerprint on the jail card

and identified them as matching.

      Rose testified that she and Appellant began dating in 2001. Rose’s mother

testified that, on August 10, 2001, Appellant was convicted for assaulting Rose.

She testified that the assault occurred while Rose and Appellant were dating.

      The evidence shows, then, that Appellant was convicted for assaulting Rose

in 2001 while the two of them were in a dating relationship. The evidence also

shows that Appellant and Rose were in a dating relationship when he assaulted her

in the underlying offense. Together, this is sufficient evidence for the jury to have

found appellant guilty of third-degree felony assault.

      Appellant argues that the jail card for the earlier offense indicates that he

was incarcerated on January 12, 2001, six months before he was charged with

assault. Appellant claims that this “factual impossibility” renders the proof of the

earlier offense legally insufficient. We disagree with Appellant’s characterization

of the evidence.

      The jail card for the earlier offense plainly indicates that Appellant was

incarcerated on November 8, 2001 and released on March 11, 2002. There is a

handwritten line on the jail card indicating that the arrest offense was “assault,



                                          9
family member MRP.” The handwritten date next to it is January 12, 2001. It is

not clear from the record what event this date was meant to reflect. Regardless of

what it was meant to reflect, we conclude that it is of no consequence. The other

dates on the jail card do not conflict with the dates reflected in the judgment, and

there is nothing missing from the jail card that the case law indicates is necessary

for evidentiary sufficiency purposes. See Garner, 864 S.W.2d at 97; Flowers, 220

S.W.3d at 921 (holding there is no specific set of evidence that must be presented

to establish prior conviction).

      We overrule Appellant’s first issue.

                           Communication with Witness

      In his second issue, Appellant argues the State violated his Due Process

rights by instructing a witness not to speak with Appellant’s investigator.

Appellant acknowledges that he did not raise any objection or file any motion

concerning the witness’s refusal to talk to his investigator during the pretrial

investigation.   Appellant asserts, however, that the error is fundamental and,

accordingly, can be raised for the first time on appeal.

      Generally, in order to raise a complaint on appeal, the complaint must have

first been presented to and ruled on by the trial court. TEX. R. APP. P. 33.1(a).

Failure to raise the objection to the trial court results in waiver. Id.; see also

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).            Most rights,



                                          10
including constitutional rights, can be waived by failure to object. Solis v. State,

945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). The Court

of Criminal Appeals has recognized “two relatively small categories of errors” can

be raised for the first time on appeal: (1) violations of rights which can be waived

only by affirmative action of the defendant and (2) “denials of absolute systemic

requirements.” Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002)

(internal quotations omitted).

      Examples of rights that can only be affirmatively waived by the defendant

include the right to assistance of counsel and the right to a trial by jury. Id.

“Absolute, systemic requirements were said to include jurisdiction of the person,

jurisdiction of the subject matter, and a penal statute’s being in compliance with

the Separation of Powers Section of the state constitution.” Id.

      A defendant in a criminal case has no general right to pretrial discovery of

evidence in the State’s possession. See Weatherford v. Bursey, 429 U.S. 545, 559,

97 S. Ct. 837, 846 (1977); Pena v. State, 353 S.W.3d 797, 809 n.10 (Tex. Crim.

App. 2011). The United States Supreme Court has recognized, however, a federal

constitutional right to certain minimal discovery. See Brady v. Maryland, 373 U.S.

83, 86, 83 S. Ct. 1194, 1196 (1963). That right is violated only if (1) the State

failed to disclose evidence, regardless of the prosecution’s good or bad faith; (2)

the withheld evidence is favorable to the accused; and (3) the evidence is material,



                                         11
that is, there is a reasonable probability that had the evidence been disclosed, the

outcome of the proceeding would have been different. Hampton v. State, 86

S.W.3d 603, 612 (Tex. Crim. App. 2002).

      We note that, according to Rose’s testimony, she made her own choice not

to talk to Appellant’s investigator. She then talked to the district attorney’s office

and was advised “not to speak to anyone.” Even assuming Rose’s statements

constituted evidence in the State’s possession, Appellant has made no showing that

she would have made a statement to the investigator favorable to Appellant or that,

with such evidence, there is a reasonable probability that the outcome of the

proceeding would be different. Accordingly, even if we construed Appellant’s

complaint on appeal as a claim of a Brady violation, Appellant has failed to

establish its elements. See id.

      Outside of Appellant’s Brady rights, a defendant in a criminal case has no

general right to pretrial discovery of evidence in the State’s possession. See

Weatherford, 429 U.S. at 559, 97 S. Ct. at 846; Pena, 353 S.W.3d at 809 n.10.

Because Appellant does not have a general right to pretrial discovery from the

State, Appellant’s complaint cannot constitute a right that can only be waived by

affirmative action from him. See Saldano, 70 S.W.3d at 888. For the same reason,

Appellant cannot complain of a violation of an absolute, systemic requirement.

See id.



                                         12
      Appellant relies on Rule 3.04 of the Texas Disciplinary Rules of

Professional Conduct to assert that the State committed a fundamental error. See

Tex. Disciplinary Rules Prof’l Conduct R. 3.04, reprinted in TEX. GOV’T CODE

ANN., tit. 2, subtit. G, app. A (Vernon 2013) (Tex. State Bar R. art. X, § 9). The

Texas Disciplinary Rules of Professional Conduct “are not designed to be

standards for procedural decisions. Further, the purpose of these rules can be

abused when they are invoked by opposing parties as procedural weapons.” Tex.

Disciplinary Rules of Prof’l Conduct preamble ¶ 15, reprinted in TEX. GOV’T

CODE ANN., tit. 2, subtit. G, app. A (Vernon 2013) (Tex. State Bar R. art. X, § 9).

We find no basis, then, to use the rules to create a fundamental right for the

opposing party.

      Finally, Appellant argues that the State’s actions inhibited his attorney’s

duty to make a reasonable investigation, relying on Strickland v. Washington, 466

U.S. 668, 690–91, 104 S. Ct. 2052, 2066 (1984). To whatever degree Appellant’s

counsel felt his duty to conduct a reasonable investigation was inhibited, it was his

obligation to bring the complaint to the attention of the trial court and to obtain a

ruling. TEX. R. APP. P. 33.1(a). By failing to do so, we cannot consider this

argument for the first time on appeal.

      We overrule Appellant’s second issue.




                                         13
                                    Court Costs

      In his third issue, Appellant argues the court costs should be deleted because

there is insufficient evidence to support the costs. The Texas Code of Criminal

Procedure requires that a judgment order the defendant to pay court costs. Johnson

v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014) (citing TEX. CODE CRIM.

PROC. ANN. art. 42.15 (Vernon Supp. 2013), art. 42.16 Vernon 2006)). “Court

costs listed in a certified bill of costs need neither be orally pronounced nor

incorporated by reference in the judgment to be effective.” Id. Reviewing the

basis for assessed court costs is different from a claim of insufficient evidence of

guilt. Id. Instead, “we review the assessment of court costs on appeal to determine

if there is a basis for the cost, not to determine if there was sufficient evidence

offered at trial to prove each cost, and traditional Jackson evidentiary-sufficiency

principles do not apply.” Id. at 390.

      Appellant’s only argument on appeal is that the bill of costs, which was not

prepared before the trial court rendered judgment, cannot be a basis for reviewing

the sufficiency of the evidence to support the court costs. Because the Court of

Criminal Appeals has held that we do not review the bill of costs for sufficiency of

the evidence, and because Appellant has not identified any specific flaws in the

determining of the costs, we hold Appellant has not presented us with an issue for

review.



                                        14
      We overrule Appellant’s third issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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




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