      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00147-CR



                                    Julius J. Manno, Appellant

                                                  v.

                                   The State of Texas, Appellee


            FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY,
       NO. C-1-CR-12-100070, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Julius J. Manno was charged with the crime of impeding traffic on a roadway in

downtown Austin, Texas. See Tex. Transp. Code § 545.363(a) (setting out offense of impeding

traffic). After a trial before a jury in the municipal court, the jury found him guilty, and the court

imposed a fine and court costs totaling $301.10. Subsequent to the municipal court’s determination,

Manno filed a motion for a new trial. After considering the merits of the motion, the municipal court

denied the motion. Once his motion for new trial was overruled, Manno appealed the municipal

court’s judgment to the county court at law. After reviewing the briefing by Manno and the State,

the county court affirmed the judgment of the municipal court. In a pro se appellate brief listing five

appellate issues, Manno contends that the jury charge was improper because it did not include

language from all of the subsections of the governing statute, asserts that a recording of the events

in question reveals that he was issued a citation for an improper purpose, and challenges the
sufficiency of the evidence supporting his conviction. We will affirm the judgment of the county

court at law.


                                          DISCUSSION


Jury Charge

                In his first issue on appeal, Manno contends that the jury charge was improper

because it only contained language from subsection 545.363(a) of the Transportation Code and did

not include language from subsections (b) and (c). See Tex. Transp. Code § 545.363. That provision

provides, in its entirety, as follows:


        (a) An operator may not drive so slowly as to impede the normal and reasonable
        movement of traffic, except when reduced speed is necessary for safe operation or
        in compliance with law.

        (b) When the Texas Transportation Commission, the Texas Turnpike Authority, the
        commissioners court of a county, or the governing body of a municipality, within the
        jurisdiction of each, as applicable, as specified in Sections 545.353 to 545.357,
        determines from the results of an engineering and traffic investigation that slow
        speeds on a part of a highway consistently impede the normal and reasonable
        movement of traffic, the commission, authority, county commissioners court, or
        governing body may determine and declare a minimum speed limit on the highway.

        (c) If appropriate signs are erected giving notice of a minimum speed limit adopted
        under this section, an operator may not drive a vehicle more slowly than that limit
        except as necessary for safe operation or in compliance with law.


Id. When presenting this issue, Manno contends that subsections (b) and (c) demonstrate that section

545.363 does not apply to driving performed in a downtown metropolitan area. Furthermore, he

asserts that because the municipal court did not include language from subsections (b) and (c) in its

charge, he was unable to argue to the jury that section 545.363 did not prohibit his conduct.

                                                 2
                However, this jury-charge argument was not mentioned in Manno’s motion for

new trial. To perfect an appeal from a municipal court’s judgment, “the appellant must file a written

motion for new trial with the municipal clerk” setting “forth the points of error of which the

appellant complains.” Tex. Gov’t Code § 30.00014(c); see id. § 30.00014(b) (providing that reviewing

court shall determine appeal based on “the errors that are set forth in the appellant’s motion for

new trial”); Brooks v. State, 226 S.W.3d 607, 609 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(explaining that to preserve complaint regarding alleged error made by municipal court, appellant

“must raise the identical point in his motion for new trial”). Moreover, if an issue is not raised in

a motion for new trial, the issue is not preserved for appellate review. Brooks, 226 S.W.3d at 609.

                In light of the preceding, it does not appear that Manno preserved this issue for

consideration on appeal. Even assuming that the issue was preserved, the record before this Court

reveals that Manno did not make any objection to the charge before it was submitted to jury. If no

objection is made to a jury charge, courts will only reverse if a jury-charge error “is so egregious and

created such harm that [the defendant] ‘has not had a fair and impartial trial’—in short ‘egregious

harm.’” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). As explained below, we

would be unable to conclude that any alleged jury-charge error constituted egregious harm.

                Although Manno correctly points out that the charge only gave an instruction

regarding subsection 545.363(a) of the Transportation Code, the other subsections pertain to the

establishment of minimum speed limits and to compliance with signs displaying minimum speed

limits, see Tex. Transp. Code § 545.363, and no evidence was introduced during trial indicating that

there was a minimum speed limit for the road at issue, see Tex. Code Crim. Proc. art. 36.14



                                                   3
(requiring courts to submit to jury “a written charge setting forth the law applicable to the case”)

(emphasis added). Moreover, the charge was consistent with the complaint, which provided that

Manno drove “a motor vehicle on a public street . . . so slowly as to impede the normal and reasonable

movement of traffic at a time when such reduced speed was not necessary for safe operation or in

compliance with law.” Finally, we can find no case law consistent with Manno’s suggestion that

section 545.363 “was meant for higher speed travel on a highway, and certainly not to be used in a

downtown condition at night on weekends.”

               For these reasons, we overrule Manno’s first issue on appeal.


Recording

               In his second issue on appeal, Manno contends that the audio recording that he made

of his encounter with Officer Michael Frierson reveals that the officer impermissibly issued him a

citation for asking the officer to explain “[w]here in a rule book can I find” the law prohibiting

impeding traffic.1 During the recording, Manno can be heard asking Officer Frierson how his behavior

violated the law and where the law prohibiting his conduct could be found. After discussing the

matter with Manno for a while, Officer Frierson issued Manno a ticket for impeding traffic. On appeal,

Manno insists that Officer Frierson’s actions were contrary to Manno’s constitutional right to know




       1
          In his brief, Manno seems to suggest that his recording was not considered during the trial
and is not listed as part of the evidence in this case and that these oversights violated his “right to
full disclosure of the evidence in this case.” See Tex. Code Crim. Proc. art. 39.14 (requiring State
to make certain disclosures in criminal proceedings). However, the record in this case reveals that
the recording was played for the jury at Manno’s request, and the recording was filed as an exhibit
to the clerk’s record in this case.

                                                  4
the nature of the accusations being made against him. See U.S. Const. amend. VI (listing accused’s

rights in criminal prosecutions); Tex. Code Crim. Proc. art. 1.05 (same).

               As with his first issue, Manno does not seem to have preserved this issue for appeal

because he did not list this issue in his motion for new trial. See Tex. Gov’t Code § 30.00014(c);

Brooks, 226 S.W.3d at 609; see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014),

cert. denied, 135 S. Ct. 1158 (2015) (explaining that failure to object may waive even constitutional

errors). Moreover, we also note that the audio recording revealed that Officer Frierson explained

that he was giving Manno a citation for impeding traffic, that the citation lists impeding traffic as

the offense at issue and states that Manno was blocking a lane of traffic, and that the complaint

states, as summarized above, that Manno was impeding traffic. See Huynh v. State, 901 S.W.2d 480,

481 n.3 (Tex. Crim. App. 1995) (explaining that “complaint serves as the sole charging instrument

in municipal court”); see also State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (providing

that constitutional right to notice requires that charging instrument be “specific enough to inform

the accused of the nature of the accusation against him so that he may prepare a defense”). Finally,

to the extent that Manno is challenging the sufficiency of the evidence supporting the jury’s

determination, we address his sufficiency arguments in the next issue.

               For all of these reasons, we overrule Manno’s second issue on appeal.


Sufficiency of the Evidence

               In his final three issues on appeal, Manno challenges the sufficiency of the evidence

supporting his conviction. Specifically, the entirety of Manno’s argument section pertaining to these

issues provides as follows:

                                                 5
        Issue III - Conflict of interest The taxis had a special deal with the W Bldg valet
        managers to get kickbacks, and the officer Frierson was working for and got paid for
        by the W Bldg so there was a conflict of interest on the part of Frierson to get rid of
        me for the Valet managers economic reasons since the Valet managers wanted use
        of that space for taxis. Also there were no taxi only signs as evidence by state exhibit
        photo so nothing that says taxis have any special rights over charter vans as I was in
        at the time. This was discrimination . . .

        Issue IV - The verdict was contrary to the law and the evidence, see issues I-III . . .

        Issue V - State did not present enough evidence to secure conviction. State only
        presented a photo in evidence not showing time [of] day of incident . . .


(Ellipses in original).

                Under a legal-sufficiency review, appellate courts view the evidence in the light

most favorable to the verdict and determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). When performing this review, an appellate court must bear in mind that it is the factfinder’s

duty to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable inferences

“from basic facts to ultimate facts.” Id. Moreover, appellate courts must “determine whether the

necessary inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9,

16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that conflicting inferences were

resolved in favor of the conviction and defer to that resolution. Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007).

                During the trial, Officer Frierson testified regarding his recollections of the events at

issue. In his testimony, he explained that he is a police officer and that on the night in question, he



                                                   6
was hired by a downtown Austin hotel to keep the peace and make sure that the “driveway kept

moving and was fluid” due to an increase in congestion stemming from a concert being held at the

hotel. Moreover, Officer Frierson recalled that one of the hotel valets informed him that “there was

a vehicle stopped in the roadway in front of the hotel.” More specifically, Officer Frierson stated that

the vehicle “was parked in Lane Number 1, which is the far left lane,” of a public street. Further,

he testified that he approached the vehicle and asked why Manno was parked in the road and that

Manno replied that he was not a cab driver but was waiting on a dispatch from the company that he

worked for. Moreover, Officer Frierson explained that he asked Manno to move his car because his

car was causing a backup and was forcing cars to wait and then switch lanes “just to get past him.”

When describing his encounter with Manno, Officer Frierson related as follows:


        Basically, once I determined that the vehicle should not be there, I asked the driver
        to move along and clear that lane so that the traffic could proceed around him or
        proceed without interruption. The driver seemed to hesitate or question the fact that
        whether or not what I was telling him was lawful. He actually started to pull off,
        pulled up about a foot, stopped his vehicle, and put it back in park. He wanted to ask
        me questions about why I was asking him to clear the area.

        ...

        I believe I asked him once again to move his vehicle because he was impeding the
        traffic, and the impression I received was that he was going to comply with that, but
        he continued to question my lawful order. So, I told him okay, I am just going to deal
        with it my way, and going to issue a citation because I needed to act decisively, and
        that he was going to receive a citation.


In addition, Officer Frierson testified that he gave Manno a ticket for impeding traffic.

                During cross-examination, Officer Frierson admitted that he received monetary

compensation for the work that he did for the hotel. Moreover, Officer Frierson also admitted that

                                                   7
he only noticed Manno parked in the road after being informed by one of the hotel employees.

However, Officer Frierson denied that he issued Manno a citation because Manno asked where the

law regarding impeding traffic was located; on the contrary, Officer Frierson explained that Manno

was cited for impeding traffic after being informed of the violation and refusing to comply with the

directive to not park in the roadway.

                After Officer Frierson finished testifying, Manno described the events in question.

In his testimony, Manno explained that on the night in question he had a chauffeur’s permit and

urged that chauffeur’s permits give drivers the same rights as taxicab drivers. Moreover, he stated

that he had been dispatched to the area and was waiting for a client at the time of his interaction with

Officer Frierson. Furthermore, he related that although the hotel valets had a problem with him

being parked in the roadway, the valets routinely allowed taxicab drivers to park in the road and to

block traffic in front of the hotel. In addition, he asserted that there was no traffic at that time of

night and that there were three additional lanes that would have allowed any driver on the road to

go around him. Next, Manno testified that the valets and Officer Frierson were looking for any excuse

to get him out of the area. Furthermore, during cross-examination, Manno admitted that he had been

parked in a lane of traffic for several minutes before Officer Frierson approached and that no

passengers were unloading from his vehicle, but he insisted that he had the legal right as a chauffeur

to sit in a lane of traffic with his flashers on and to wait for customers to come down. Moreover, he

insisted that he cannot wait at a different location because his potential hotel customers will just take

a taxicab instead.

                Following his testimony, Manno played a video recording for the jury that he made

of the road in question on a different night and argued that the video shows that taxicabs are allowed

                                                   8
to park in the lane for several minutes without any legal consequence. Next, Manno played the audio

recording of his conversation with Officer Frierson, which was summarized earlier in the opinion.

               In light of the evidence summarized above, of the jury’s role in making credibility

determinations and resolving conflicts in the evidence, and of our standard of review for legal-

sufficiency challenges, we conclude that there is legally sufficient evidence establishing that Manno

impeded traffic on the night in question. Accordingly, we overrule his third, fourth, and fifth issues

on appeal.


                                          CONCLUSION

               Having overruled Manno’s issues on appeal, we affirm the county court at law’s

judgment.




                                               David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Affirmed

Filed: May 27, 2015

Do Not Publish




                                                  9
