author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Luke Matthew BIVENS.
    No. 11-156.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Luke Matthew Bivens.
    James Patrick Lemoine, District Attorney, James D. White, Jr., Assistant District Attorney, Colfax, LA, for Plaintiff/Ap-pellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

1 tAfter a jury trial, Luke Matthew Bivens was found guilty of possession with intent to distribute cocaine, a violation of La.R.S. 40:967(A)(1), and not guilty of illegal carrying of weapons, a violation of La.R.S. 14:95(E). Bivens was sentenced to serve twelve years at hard labor, with credit for time served, to run consecutively to any other sentence. Bivens was also ordered to pay court costs and $1,000.00 to the Public Defender’s Office. Bivens’s motion to reconsider was denied. Bivens appealed through counsel and pro se asserting various errors. For the following reasons, we affirm with instructions.

I.

ISSUES

We shall consider whether:

(1) there was sufficient evidence to convict Bivens of cocaine possession with intent to distribute where 1.2 grams of crack cocaine was recovered in the vehicle Bivens was operating, where $4,452.00 was recovered from Bivens’s person, and where an expert in investigation, use, and distribution of crack cocaine testified that the circumstances of this case were not consistent with a “use of cocaine” case;
(2) the trial court erred by not considering Bivens’s pretrial motions where:
a. Bivens filed three motions to suppress and two motions to quash more than fifteen days after his arraignment and did not address why he should be allowed additional time to file his motions;
b. Bivens filed a motion to change venue alleging racial profiling without identifying any specific incidences of facts upon which he based his motion;
(3) Bivens’s sentence is excessive where Bivens received twelve years at hard labor and the maximum sentence for his conviction was thirty years at hard labor and a fine of up to $50,000.00;
(4) Bivens had a seventy-two-hour bond hearing where there is no transcript of the hearing in the record, but the minutes reflect that a hearing was held;
12(5) Bivens waived the bill of information’s errors of form where Bivens did not object to the bill based on the errors;
(6) this court needs to consider an allegedly illegal investigatory stop where Bivens did not move to suppress the evidence found during the stop;
(7) the prosecution used peremptory strikes illegally where all six African-American potential jurors in the thirty-six-member jury pool were excluded from the jury;
(8) a laboratory report is admissible without testimony where Bivens did not object at trial to the admission of the report;
(9) this court should consider Bivens’s request to recover money the police seized from his person where he did not motion the trial court for the return of his money;
(10) this court should consider alleged errors in the State’s appellate brief where Bivens did not allege any trial errors;
(11) this court should consider Bivens’s request to review the voice recordings of all proceedings and compare them to the transcript because of alleged inaccuracies in the transcript where Bivens previously made the same request which this court denied and where Bivens did not raise any new allegations or reasons for the review.

II.

FACTS

On or about February 23, 2010, a police officer observed Bivens in Colfax, Louisiana, driving a vehicle with a temporary tag the officer did not recognize. Bivens parked at a nearby gas station/convenience store. Before the officer could inquire about the tag, Bivens and a female passenger, Lakeisha Guider, exited the vehicle and entered the store. While in the store, the two did not make a purchase but began to act suspiciously, watching out for the officer. Bivens and Ms. Guider then exited the store and walked directly to a nearby dollar store where they continued to watch the officer. Eventually, Bivens and Ms. Guider returned to the gas station/convenience store but not to the vehicle. The officer left the gas station but continued to monitor the vehicle from the side of the dollar store.

liiSoon thereafter, a second vehicle pulled up, and Bivens and Ms. Guider spoke with the driver of the vehicle. After returning to their respective vehicles, all departed the scene. The officer followed Bivens’s vehicle. When Bivens spotted the officer, he turned down a side street by the dollar store and returned to the gas station/convenience store. The officer pulled up in front of him and stopped, and Bivens exited his vehicle.

As the officer was speaking with Bivens, the second vehicle returned to the scene. Ms. Guider spoke with the driver, returned to Bivens’s vehicle, retrieved a paper bag, and then proceeded toward the other vehicle with the bag. The officer instructed Ms. Guider to bring him the bag. The bag tore as she reached out to hand it to him, and a gun fell out onto the ground. At that time, Bivens and Ms. Guider were taken into custody. The driver of the second vehicle was also detained and was later discovered to be Bivens’s brother.

During a pat down, $4,452.00 in cash was found on Bivens. Also, after a K-9 alerted officers to the presence of drugs in the vehicle, a cellophane baggie containing 1.2 grams of crack cocaine was recovered.

III.

LAW AND DISCUSSION

Error Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There is one error patent concerning Bivens’s sentence.

In State v. Frith, 561 So.2d 879, 883 (La.App. 2 Cir.), writ denied, 571 So.2d 625 (La.1990), the court stated:

LSA-C.Cr.P. articles 895 and 895.1 authorize restitution and payment to the indigent defender program as a condition of probation only when the trial court suspends the imposition or execution of sentence. State v. Fluitt, 482 So.2d 906 (La.App. 2d Cir.1986); State v. Starks, 471 So.2d 1029 (La.App. 1st Cir.1985). In this case, the trial court did not suspend the two year hard labor sentence. For this reason, the portion of the sentence ordering restitution and payment to the indigent defender program is illegal. Therefore, we further correct the sentence to delete that portion ordering restitution and payment to the indigent defender program. C.Cr.P. art. 882.

In State v. Lozado, 594 So.2d 1063, 1067 (La.App. 3 Cir.1992), this court noted:

Lastly, we bring to the sentencing court’s attention the provisions of LSA-C.Cr.P. Arts. 895 and 895.1 which require that before the sentencing court orders the payment of a fee to defray the expenses of probation supervision and the making of restitution to the Indigent Defender Board, it must suspend defendant’s sentence.

Here, as part of Bivens’s sentence, the court ordered that he pay the Public Defender’s Office $1,000.00. Bivens’s sentence was not suspended. Accordingly, this court deletes the provision of Bivens’s sentence requiring payment to the Public Defender’s Office and instructs the trial court to make an entry in the court minutes reflecting the change.

(1) Sufficiency of Evidence

There is sufficient evidence for conviction if the appellate court determines that “the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Hobley, 98-2460, p. 33 (La.12/15/99), 752 So.2d 771, 790, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000).

Further, when the conviction is based on circumstantial evidence, La.R.S. 15:438 sets forth the rule that “assuming every fact to be proved that the evidence tends to prove, in order to convict, [the circumstantial evidence] must exclude every reasonable hypothesis of innocence.” However, La.R.S. 15:438 does not establish a stricter standard of review than the more general rational juror’s reasonable doubt formula; rather it serves as a helpful evidentiary guide for jurors when evaluating circumstantial evidence.

| State v. Major, 03-3522, p. 6 (La.12/1/04), 888 So.2d 798, 801 (citations omitted).

In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

State v. Chism, 436 So.2d 464, 469 (La.1983).

(a) Actual or Constructive Possession

To prove the charged offense, the State needed to prove Bivens’s possession of the cocaine.

Possession of narcotic drugs can be established by actual physical possession or by constructive possession. A person can be found to be in constructive possession of a controlled substance if the State can establish that he had dominion and control over the contraband, even in the absence of physical possession.
A determination of whether there is sufficient “possession” of a drug to convict depends on the particular facts of each case. Although mere presence in an area where drugs are located or mere association with one possessing drugs does not constitute constructive possession, this court has acknowledged several factors to be considered in determining whether a defendant exercised sufficient control and dominion to establish constructive possession, including: (1) his knowledge that drugs were in the area; (2) his relationship with the person, if any, found to be in actual possession; (3) his access to the area where the drugs were found; (4) evidence of recent drug consumption; and (5) his physical proximity to drugs.

Major, 888 So.2d at 802 (citations omitted).

On appeal, Bivens asserts that the State failed to show he had actual or constructive possession of the drugs. More specifically, Bivens complains that the | BState did not show he knew the drugs were in the vehicle or that he had recently used drugs.

The record reveals that Bivens had access to the area where the drugs were found and was in close proximity to the drugs, factors evidencing the exercise of sufficient control and dominion to establish constructive possession.

Trooper Ken Malone with the Louisiana State Police testified that Bivens was the driver of the vehicle where the drugs were recovered. In addition to being the driver, the vehicle belonged to Bivens or he was the custodian of the vehicle, another factor which indicates he had control and dominion over the drugs.

Bivens, a Texas resident, testified he was not the owner of the vehicle. According to Bivens, after making a large down payment, he was allowed to test-drive the vehicle for two days to see if he liked it. He then decided to drive from Texas to New Orleans, Louisiana, his hometown, to get his birth certificate and social security card that were needed to obtain a Texas driver’s license. Bivens would then be able to obtain the car insurance required to purchase the vehicle.

Regardless of whether or not Bivens was the “owner” of the vehicle, Bivens was clearly the custodian of the vehicle and in possession of the vehicle at the time the drugs were found. As such, the evidence was sufficient to show that Bivens exercised sufficient control and dominion to establish constructive possession of the drugs.

(b) Guilty Knowledge

The State was also required to prove guilty knowledge, an essential element of the crime, which may be inferred from the circumstances.

Although a conviction for possession of cocaine can stand on the possession of the slightest amount of the drug, the amount of the substance will have some bearing on the defendant’s guilty knowledge. State v. Gaines, 96-1850, pp. 5-6 (La.App. 4 Cir. 1/29/97), 688 So.2d 679, 682-83, writ denied, 97-0510 (La.9/5/97), 700 So.2d 503; State v. Spates, 588 So.2d 398, 401 (La.App. 2 Cir.1991). In 17addition, the possession of drug paraphernalia is, because of the items’ peculiar nature, indicative of guilty knowledge. Gaines, p. 6, 688 So.2d at 683; Spates, 588 So.2d at 402. Finally, flight is a circumstance from which guilt can be inferred. See State v. White, 535 So.2d 929, 933 (La.App. 2 Cir.1988), writ denied, 537 So.2d 1161 (La.1989).

State v. Smith, 98-2645, p. 5 (La.App. 4 Cir. 1/26/00), 752 So.2d 314, 317-18; see also State v. Hunter, 09-1487, p. 4 (La.App. 3 Cir. 6/2/10), 41 So.3d 546, 550.

Here, police described the suspicious actions of Bivens and Ms. Guider as they attempted to avoid the vehicle and the police officer prior to their apprehension. Additionally, when the officer began questioning Bivens, Bivens seemed extremely nervous and his voice became elevated as he was questioned. During questioning, Bivens moved from one subject matter to another, making it difficult for the officer to keep up with what Bivens was trying to tell him. According to the officer, Bivens kept looking around as if he were going to flee. Lastly, the officer’s suspicion was raised when Ms. Guider tried to move the gun from one vehicle to another, leading him to believe that narcotics were in the vehicle.

(c) Specific Intent

“Intent is a condition of mind which is usually proved by evidence of circumstances from which intent may be inferred.” State v. Hearold, 603 So.2d 731, 735 (La.1992) (citations omitted). There are five factors courts consider to determine whether an intent to distribute can be inferred:

1) whether the defendant ever distributed or attempted to distribute the drug; 2) whether the drug was in a form usually associated with possession for distribution to others; 3) whether the amount of drug created an inference of an intent to distribute; 4) whether expert or other testimony established that the amount of drug found in the defendant’s possession is inconsistent with personal use only; and 5) whether there was any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

Id.

For example, in State v. Davis, 06-1330 (La.App. 4 Cir. 4/25/07), 958 So.2d 713, writ granted in part, denied in part, 07-1208 (La.12/14/07), 970 So.2d 982, the court found that the presence of an unusually large amount of cash in the defendant’s car, $1,000.00, and on the defendant’s person, $607.00, along with a loose rock of crack cocaine and eighteen individually wrapped plastic bags, each containing a rock of crack cocaine, within the defendant’s vehicle, were indicative of an intent to distribute.

In State v. Moore, 40,311 (La.App. 2 Cir. 1/13/06), 920 So.2d 334, writ denied, 06-2267 (La.6/1/07), 957 So.2d 167, evidence that the defendant possessed twenty-seven rocks of crack cocaine, eleven of which were packaged together in a plastic bag, while the remaining sixteen were in a plastic bottle, was found to be consistent with street level distribution. Also, he had no crack pipe on his person to suggest personal use.

Here, Bivens argues that the amount of cocaine recovered, fourteen rocks weighing 1.2 grams, was not large enough to infer intent to distribute. Although he was in possession of $4,452.00, Bivens testified he worked for the money and the State did not show otherwise. Bivens asserts there were no baggies or other items found in which to package cocaine, and no scales were found. Lastly, although Bivens had a history of prior drug offenses, he stated that the evidence did not show that he had ever distributed drugs.

At trial, Detective James was offered and accepted as an expert in the investigation, use, and distribution of crack cocaine. Detective James concluded that the amount of money recovered, the way the crack cocaine was packaged, and the lack of paraphernalia associated with the use of cocaine was not consistent with a “use of cocaine” case. Finally, in 2009, Bivens pled guilty to a Texas charge of unlawful possession with intent to deliver cocaine.

|flBased on the considerations above, the State did not rely solely on the amount of crack cocaine recovered to create the inference of intent to distribute. Accordingly, this assignment of error is without merit.

(2) Failure to Consider Pretrial Motions

The record reflects that on August 27, 2010, Bivens filed eight pro se motions, some of which were dismissed as untimely. Bivens asserts that the trial court erred by dismissing them.

(a) Motions to Suppress

Three of the motions were motions to suppress evidence. The trial court relied on La. Code Crim.P. art. 521 which requires the motions to be filed within fifteen days of arraignment absent a showing of good cause for them being late. The trial court reasoned that because Bivens was arraigned on May 7, 2010 but filed the motions to suppress on August 27, 2010, his motions were untimely, and, therefore, dismissed.

In his motions to suppress, Bivens did not address the untimeliness of his motions or show good cause as to why he should be allowed additional time to file his motions as required by Article 521. Accordingly, the trial court did not err in denying the motions.

(b) Motions to Quash

The trial court construed two other motions as motions to quash. The trial court reasoned that the timing for filing a motion to quash is governed by La.Code Crim.P. art. 535 which lists several grounds upon which the motion could be based. If the motion to quash is based on grounds other than those listed in La.Code | inCrim.P. art. 535, La.Code Crim.P. art. 521 governs and requires the motion to be filed within fifteen days of arraignment. The trial court concluded that the motions were not based on the grounds listed in La.Code Crim.P. art. 535, and, therefore, La.Code Crim.P. art. 521 applied. Because Bivens’s motions to quash did not comply with La.Code Crim.P. art. 521, Bivens waived the grounds upon which his motions were based pursuant to La.Code Crim.P. art. 535(D). Thus, the trial court dismissed these motions.

Bivens asked the trial court to dismiss the charge of illegal carrying of weapons in his first motion to quash. As noted by the trial court, Bivens’s motion did not set forth a ground found in sections A or B of Article 535, and, thus, he was required to file the motion in accordance with Article 521, within fifteen days of | T ¶ arraignment. Accordingly, the trial court did not err in denying the motion. Further, Bivens was found not guilty of illegal carrying of weapons, and, thus, any alleged error is now moot.

Bivens’s request in his second motion to quash is vague but appears to ask the trial court to quash all the charges against him. He complained that police used improper traffic stop procedures, failed to initiate a legitimate traffic stop, and failed to initiate an investigative stop. Bivens also asserted that he was entrapped, that police failed to maintain a line of sight, that he did not consent to or authorize the search and seizure, and that he was not Mirandized. Lastly, Bivens averred that police did not have probable cause or suspicion and there was no prior investigation of suspects to suggest Bivens was involved in criminal activities.

Again, Bivens’s motion did not set forth a ground found in sections A or B of Article 535, and, thus, he was required to file the motion in accordance with Article 521, within fifteen days of arraignment. Accordingly, the trial court did not err in denying the motion.

(c) Motion for a Change of Venue

The trial court noted that La.Code Crim.P. art. 621 governs filing of a change of venue motions, which provides that the timing is governed by La. Code Crim.P. art. 521, or, thereafter, is at the court’s discretion. The trial court noted that the motion was late under La.Code Crim.P. art. 521. The court declined to grant Bivens leave to file the motion late.

Louisiana Code of Criminal Procedure Article 621 reads as follows:

A motion for a change of venue may be filed by either the state or the defendant. It shall be filed in accordance with Article 521; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial of the merits. The motion shall be in writing, sworn to by mover or his counsel, and shall contain:
(1) Allegations of fact upon which the motion is based; and
| ,¾(2) A statement that the motion is not made for the purpose of delay, but to obtain a fair and impartial trial.

A contradictory hearing shall be held upon the motion.

Here, Bivens asked that the venue be changed “based on alleged racial profiling and the obvious racial indications and overtures” in the case. Bivens did not identify any specific incidences or facts upon which the motion was based. Thus, the trial court did not err in denying the motion.

(3) Excessive Sentence

“No law shall subject any person ... to cruel, excessive, or unusual punishment.” La. Const, art. 1, § 20.

To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted). The following factors help to decide whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals: “the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment[,] and a comparison of the sentences imposed for similar crimes.” State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citing State v. Smith, 99-606, 99-2015, 99-2019, 99-2094 (La.7/6/00), 766 So.2d 501). Although a comparison of sentences imposed for similar crimes can be helpful, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Id. (quoting State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir.1991)). Because the trial court is in the best position to evaluate the aggravating and mitigating factors of a particular case, “it isjjowithin the purview of the trial court to particularize the sentence.” Id. Finally, “[a]s a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169 (citing State v. Grissom, 29,718 (La.App. 2 Cir. 8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2 Cir.1991)).

In State v. Ceaser, 09-236 (La.App. 3 Cir. 11/4/09), 21 So.3d 1122, writ denied, 09-2734 (La.6/4/10), 38 So.3d 300, this court affirmed an eighteen-year, hard-labor sentence, the first two years without benefit of parole, probation, or suspension of sentence, for possession of cocaine with intent to distribute. The defendant’s criminal history included multiple prior drug convictions. He was found in possession of three grams of crack cocaine and over fifty-one grams of powder cocaine; a firearm was in the vehicle where the drugs were found.

In State v. Chaisson, 09-119 (La.App. 3 Cir. 10/7/09), 20 So.3d 1166, this court affirmed the defendant’s eight-year, hard-labor sentence, the first two years without benefits, for possession with intent to distribute cocaine. The sentence was ordered to run consecutively to sentences imposed for two other offenses that occurred on separate dates. From the defendant’s residence, officers recovered 4.5 grams of cocaine in addition to paraphernalia used to sell cocaine. A drug measuring station was also found. The defendant had two prior misdemeanor convictions but no |uprior felony convictions. Also, the offense occurred while the defendant was on bond for the two charges arising from an earlier incident.

The penalty for possession with intent to distribute cocaine is two to thirty years at hard labor and a fine of up to $50,000.00. La.R.S. 40:967(B)(4)(b). The first two years are to be served without benefit of parole, probation, or suspension of sentence. Thus, Bivens’s twelve-year sentence with the first two years to be served without benefits falls within the statutory sentencing range and is a lower-end sentence, about one-third of the maximum possible sentence. Additionally, he was spared a substantial fine.

At sentencing and at a hearing on a motion to reconsider sentence, Bivens stated that he had always worked and had never been in trouble with the law in Louisiana involving a felony offense. The only time he spent in jail was in New Orleans for a misdemeanor, disturbing the peace. Bivens then moved to Texas after Hurricane Katrina. Bivens got his GED in Texas and was in trade school to be an air conditioning technician. He stressed that he had only been convicted of one felony in his life and that he had learned his lesson. Bivens also stated he had a daughter for whom he paid child support.

At a hearing to reconsider sentence, the trial court stated that at Bivens’s original sentencing, it had considered that he had obtained a GED, as well as his work history and job training, and that he had a child to support. The trial court also considered that Bivens had been placed on probation on two occasions in Texas. With regard to this conviction, the trial court noted that the evidence at the scene included a gun, a large amount of cash, and a quantity of crack cocaine that did not indicate he was a drug user. Although the offense was nonviolent, the trial court stated that the offense was a concern to the community, especially with a firearm involved. Combined with that Bivens had two prior arrests for similar offenses, the | atrial court opined that Bivens was deserving of a significant period of incarceration, and his motion was denied.

Like the defendants in the above-referenced jurisprudence, Bivens has a prior history of drug offenses, was on probation at the time of this offense, and a firearm was involved. In light of these circumstances and that he received a lower-end sentence, Bivens’s sentence is not excessive.

(4) Bond Hearing

Bivens argues that his rights were violated when the trial court failed to give him a seventy-two-hour bond hearing. He asserts that a bond hearing is required to be voice-recorded into the record and complains there is no such transcript of a hearing in the record.

Louisiana Code of Criminal Procedure Article 230.1 provides:

A. The sheriff or law enforcement officer having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the seventy-two-hour period referred to herein. The defendant shall appear in person unless the court by local rule provides for such appearance by telephone or audio-video electronic equipment. However, upon a showing that the defendant is incapacitated, unconscious, or otherwise physically or mentally unable to appear in court within seventy-two hours, then the defendant’s presence is waived by law, and a judge shall appoint counsel to represent the defendant within seventy-two hours from the time of arrest.
B. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.
C. If the arrested person is not brought before a judge in accordance with the provisions of Paragraph A of this Article, he shall be released forthwith.
D. The failure of the sheriff or law enforcement officer to comply with the requirements herein shall have no 11fieffect whatsoever upon the validity of the proceedings thereafter against the defendant.

The record reflects that Bivens was arrested on February 23, 2010, and was charged with illegal carrying of a weapon with a controlled dangerous substance, possession with intent to distribute a schedule II controlled dangerous substance, possession of a firearm by a convicted felon, and failure to register the vehicle. Although there is no transcript of a seventy-two-hour hearing, the minutes reflect that a hearing was held. On February 25, 2010, per the District Court’s order, Bivens was interviewed by the Public Defender’s Office to determine if he was indigent, and defense counsel was subsequently appointed. Accordingly, the requirements of Article 230.1 were met, and, thus, this assigned error is without merit.

(5) The Bill of Information’s Form Errors

Bivens argues that his bill of information was not properly filed and was illegally used against him pursuant to La.Code Crim.P. art. 532. Bivens complains that the bill was not based on true facts. He asserts that bill of information filed was not signed by the district attorney. Next, he states that the bill was filed “under a false gender” — white male — when he is a black male. Bivens also claims that the bill reflects a false Texas driver’s license number when, according to Bivens, he has never before possessed a driver’s license. Lastly, Bivens contends he was illegally charged in count one, maintaining that under La.R.S. 40:967, he must have possessed not less than 28 grams, nor more than 200 grams of cocaine when in fact, he was found in possession of 1.2 grams.

“A motion to quash may be based on one or more of the following grounds: (1) The indictment fails to charge an offense which is punishable under a valid statute.” La. Code Crim.P. art. 532(1). “A motion to quash an information may also be based on one or more of the following grounds: (1) The information was not |i7signed by the district attorney; or was not properly filed.” La.Code Crim.P. art. 534(1).

In State v. Lee, 94-2584, p. 3 (La.App. 4 Cir. 1/19/96), 668 So.2d 420, 424, writ denied, 96-477 (La.5/10/96), 672 So.2d 919, the court stated:

an indictment shall not be invalid or insufficient because of a defect in form only. La.C.Cr.P. art. 487. The omission of the signature of the district attorney, being a formal defect only, must be taken advantage of before trial by demurrer or motion to quash. State v. White, 404 So.2d 1202, 1205 (La.1981); La.C.Cr,P. arts. 534(1), 535. The defendant did not object to the defect prior to trial; it was therefore waived.

The bill of information found in the record was signed by Jimmy D. White, Assistant District Attorney. Also, the caption of the bill located in the top left hand corner reflects, in pertinent part, “GEN: W/M TX DL# 8351295.” With regard to these alleged errors of form, Bivens did not object to the bill of information based on these errors. Accordingly, these alleged errors of form were waived and, thus, are not properly before this court.

With regard to the remaining alleged error pertaining to the charge of possession with intent to distribute, Bivens incorrectly asserts that the bill of information charged him with the possession of 28 to 200 grams of cocaine, a violation of La.R.S. 40:967(F)(2)(a). The bill of information charged Bivens with violating La.R.S. 40:967(A)(1), possession with intent to distribute cocaine, which does not require proof that he possessed 28 to 200 grams of cocaine. Accordingly, there is no merit to this allegation of error.

\]ft(6) Legality of an Investigatory Stop

Bivens argues that police did not have probable cause or any reasonable grounds to “act on what they did.” Bivens contends that the unjustified investigatory stop was illegal, and the evidence obtained and used against him at trial was a violation of his constitutional rights.

Bivens filed three motions seeking to suppress the evidence for various reasons. None of these motions, however, sought to suppress evidence based on lack of probable cause or reasonable grounds for the police’s investigatory stop. Pursuant to La.Code Crim.P. arts. 521 and 703, Bivens was required to move to suppress the evidence within fifteen days after the arraignment or prior to trial upon written motion showing good cause. Accordingly, Bivens did not preserve the issue on appeal, and, thus, the merits of his claim are not considered.

(7) Legality of the Peremptory Strikes

Bivens argues he was prejudiced by an all-white jury. There were six African-Americans in the thirty-six-member jury pool. Bivens asserts the State intentionally exercised or used peremptory exceptions on all six blacks, leaving Bivens with no jury of peers.

“In Batson [v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ], the Supreme Court held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person’s race.” State v. Anderson, 06-2987, p. 41 (La.9/9/08), 996 So.2d 973, 1004, cert. denied, — U.S. -, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009) (footnote omitted); see also State v. Sarpy, 10-700 (La.App. 3 Cir. 12/8/10), 52 So.3d 1032, writ denied, 11-46 (La.6/3/11), 63 So.3d 1006.

A defendant’s Batson challenge to a peremptory strike requires a three-step inquiry. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory |19challenge on the basis of race. Second, if the showing is made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Although the prosecutor must present a comprehensible reason, “[t]he second step of this process does not demand an explanation that is persuasive, or even plausible”; so long as the reason is not inherently discriminatory, it suffices. Third, the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating “the persuasiveness of the justification” proffered by the prosecutor, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”

Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 973-974, 163 L.Ed.2d 824 (2006) (citations omitted).

The trial court’s findings with regard to a Batson challenge are entitled to great deference on appeal. When a defendant voices a Batson objection to the State’s exercise of a peremptory challenge, the finding of the absence of discriminatory intent depends upon whether the trial court finds the prosecutor’s race-neutral explanations to be credible. “Credibility can be measured by, among other factors, the prosecutor’s demean- or; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.”

Anderson, 996 So.2d at 1004 (citations omitted).

Prior to the swearing in of the jury, defense counsel raised an objection. The State maintained there was no pattern of racial discrimination. The trial court observed, however, that each African-American that was seated on the panel was either challenged for cause or a peremptory challenge was exercised by the State. This removed every African-American on the potential jury venire. Given the racial make-up of the parish and the initial jury venire, the trial court concluded that Bivens’s initial burden of showing a pattern of racial discrimination had been met. Thus, the State was required to provide race-neutral reasons for striking the four African-American potential jurors.

The State indicated that the first juror had an active contempt of court charge through the district attorney’s office, and thus, the State did not feel she would make an effective juror. The State did not use a peremptory challenge until the trial |20court denied its challenge for cause. The second juror, the State claimed, was on a prior jury involving a drug case where she found the defendant not guilty. The State opined that if she had “done that once before,” there was a possibility she would do it again. The State preempted the third juror because she worked in Westside Rehabilitation. The State did not want a juror whose employment involved drugs. The State asserted that, initially, it was going to accept the fourth juror. Nevertheless, when questioned regarding her opinion on fairness, she giggled and looked away and could not tell whether she thought the matter was fair or unfair at that time. She did not appear to the State to be taking the matter seriously, she would not make eye contact, and she was squirming in her chair. Thus, the State believed she would not pay attention throughout the trial or form an opinion as to the fairness of the law under which Bivens was being prosecuted. The trial court concluded that the State’s reasons for excluding all four potential jurors were race-neutral.

Considering that all of the African-American potential jurors were challenged and prevented from serving on the jury, Bivens, an African-American, did show a prima facie case of discrimination to warrant the trial court’s inquiry as to the reasons for their exclusion. Nevertheless, the reasons provided by the State were not inherently discriminatory, and, thus, Bivens did not carry his burden of proving purposeful discrimination with regard to the State’s use of its peremptory challenges.

Bivens also complains that during questioning, two of the white potential jurors spoke out loud, saying that they believed Bivens was already guilty, while other jurors shook their heads, indicating that they also believed he was guilty. Although the two potential jurors were excluded from serving, Bivens argues that the other white potential jurors did become a part of his jury. With only twelve peremptory challenges to exclude those he felt would not make an honest and fair decision, Bivens maintains he was unable to choose a fair jury.

121 First, Bivens did not identify any of the jurors by name with regard to this claim. A review of the record reflects that Bivens did not express any challenges for cause until the third panel. At that time, the defense counsel challenged for cause potential jurors Jeffrey Lavespere and Davis Haas on the basis that both men stated during questioning that Bivens was guilty until proven innocent. The State concurred in the challenges. The trial court found that Mr. Lavespere made the statement that he did not believe in the presumption of innocence and that Mr. Haas stated he had never seen anyone arrested for something they did not do. Both men were then excluded from the jury.

This court could find no evidence in the record to indicate that Bivens attempted to exclude any other jurors for cause or that he objected to a ruling on a challenge for cause. In the absence of a challenge for cause and/or an objection to a ruling on a challenge for cause, there is no issue before this court for review.

Lastly, Bivens claims that he suffered prejudice because the foreperson of the jury, James Woodruff, was a correctional officer, a benefit to the State. Bivens maintains a conflict of interest existed, and, thus, the trial court erred in allowing Mr. Woodruff to participate on the jury. Bivens does not claim, nor does the record reflect, that Bivens sought to exclude Mr. Woodruff from the jury. Accordingly, Bivens’s claim is not properly before this court for the first time on appeal. See La.Code Crim.P. art. 841.

(8) Laboratory Report’s Admissibility

Bivens argues that his conviction should be overturned because the State failed to call Alex King from the Criminal-istics Lab. Instead, the State depended solely on the lab report. Bivens contends the lab report does not have enough information to show that the evidence presented against him at trial is the same evidence examined in the report.

In State v. Savoie, 07-914 (La.App. 3 Cir. 3/5/08), 982 So.2d 119, writ denied, 08-617 (La.10/3/08), 992 So.2d 1011, the defendant did not object to lab reports when they were offered and introduced into evidence at trial. In finding that the defendant failed to preserve his right to challenge the evidence post-verdict, this court referred to La.Code Crim.P. art. 841(A), which provides: “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” Additionally, the court noted:

In State v. Cunningham, 04-2200 (La.6/13/05), 903 So.2d 1110, the supreme court considered the constitutionality of La.R.S. 15:499-501 with regard to the admissibility of a certificate of analysis of laboratory results as prima facie proof of the substance tested without live testimony of the person performing the analysis. After determining that the statutes are not unconstitutional, the court added that the statutes, from a practical standpoint, are no different from hearsay evidence offered at trial. “If defendant does not contemporaneously object, the hearsay is allowed into evidence.” Id. at 1121.

Savoie, 982 So.2d at 123.

Here, Bivens did not object at trial to the admission of the report on the basis that the State did not call the analyst to testify. Accordingly, Bivens failed to preserve his right to challenge the evidence post-verdict, and, thus, this assignment of error is without merit.

(9)Recovery of Money

Bivens states that the money recovered from his person was taken by officers and used against him at trial. He complains that at trial, the officers “never once brought up any reason why money was taking [sic] and being used against” him and that there was no reason to believe the money was involved with the drugs. TheJjgOnly evidence upon which the State relied to connect the money to drugs was the recovery of drugs from inside the vehicle. Bivens denies knowledge of the “very small amount” of drugs found and states that no other evidence or testimony showed intent. Because his testimony indicates that he worked hard for the money, Bivens contends that the money should be returned to him.

First, Bivens does not claim, nor does the record reflect, that he motioned the trial court for the return of his money. Thus, there is no ruling from the lower court for this court to review. Uniform Rules—Courts of Appeal, Rule 2-12.4 provides, in pertinent part, “[t]he brief of the appellant or relator shall set forth the jurisdiction of the court, a concise statement of the case, the ruling or action of the trial court thereon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought.” Accordingly, the alleged error is not considered.

(10)Alleged Errors in State’s Appellate Brief

Bivens argues that several facts in the State’s appellate brief are incorrect. Bivens, however, does not allege a trial error or ruling for this court to review, and, thus, fails to comply Uniform Rules— Courts of Appeal, Rule 2-12.4. Accordingly, the alleged error is not considered.

(11)Transcript

Bivens argues that the transcripts in the record of all the proceedings do not accurately reflect what was said in court. Bivens contends that testimonies, statements, and answers are missing. According to Bivens, the transcripts differ from the truth which would be on the recordings of the proceedings. Bivens requests that the voice recording of all matters involving his case be reviewed.

| ⅞,Bivens previously requested that this court obtain the tape recordings based on numerous alleged inaccuracies in the transcripts of his preliminary hearing and trial. Bivens’s request was denied. Bivens fails to raise any new allegations or reasons for reviewing the audio tapes of the proceedings, and, thus, Bivens’s request is denied.

IV.

CONCLUSION

Bivens’s conviction and sentence are affirmed. This court deletes the provision of Bivens’s sentence requiring payment to the Public Defender’s Office and instructs the trial court to make an entry in the court minutes reflecting the change.

AFFIRMED WITH INSTRUCTIONS.

      . Louisiana Code of Criminal Procedure Article 535 reads as follows:
      A.A motion to quash may be filed of right at any time before commencement of the trial, when based on the ground that:
      (1) The offense charged is not punishable under a valid statute;
      (2) The indictment does not conform with the requirements of Chapters 1 and 2 of Title XIII;
      (3) Trial for the offense charged would constitute double jeopardy;
      (4) The time limitation for the institution of prosecution has expired;
      (5) The court has no jurisdiction of the offense charged; or
      (6) The information charges an offense for which prosecution can be instituted only by a grand jury indictment.
      (7) The individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.
      These grounds may be urged at a later stage of the proceedings in accordance with other provisions of this Code.
      B. A motion to quash on the ground that the time limitation for commencement of trial has expired may be filed at any time before commencement of trial.
      C. A motion to quash on grounds other than those stated in Paragraphs A and B of this Article shall be filed in accordance with Article 521.
      D. The grounds for a motion to quash under Paragraphs B and C are waived unless a motion to quash is filed in conformity with those provisions.
      E. The court may, in order to avoid a continuance, defer a hearing on a motion to quash until the end of the trial.

      . The defendant was also convicted of possession with intent to distribute ecstasy and possession of a firearm by a convicted felon. For possession with intent to distribute ecstasy, he was sentenced to eighteen years at hard labor, the first five years to be served without benefits. For possession of a firearm by a convicted felon, he was sentenced to twelve years at hard labor. The sentences for the drug penalties were ordered to run concurrently with each other, and the sentence for the firearm offense was ordered to run consecutively to the sentences for the drug convictions.

      . The defendant was also convicted of manufacturing cocaine base and simple possession of cocaine. He was sentenced to ten years at hard labor without benefits for manufacturing cocaine base and to five years at hard labor for simple possession of cocaine, the sentences to run concurrently with each other but consecutive to his sentence for possession with intent to distribute cocaine.

      . A "Motion to Quash” was filed on September 17, 2010, alleging that there was no statute to charge the Defendant with illegal carrying of a weapon with a controlled dangerous substance and that La.R.S. 14:95(E) was a sentencing guideline, not a crime. The Defendant also alleged that prosecution for possession with intent to distribute cocaine and prosecution for possession of cocaine and possession of a firearm constituted double jeopardy.

      . The Defendant did object on the basis that he had not been provided a copy of the report prior to trial. The State responded that the evidence was provided to the Defendant's attorney. The trial court then confirmed with the State that the certificate of analysis with a notice of intent was provided to defense counsel. Also, the notice of intent was filed into the record on April 28, 2010, along with the certificate of analysis. Accordingly, the trial court overruled the Defendant's objection.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Darius SIAS v. IBERIA PARISH SCHOOL BOARD.
    No. 11-163.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Justin Wayne Landry, Attorney at Law, New Iberia, LA, for Defendant-Appellee, Iberia Parish School Board.
    Harold Dewey Register, Jr., Attorney at Law, Lafayette, LA, for Plaintiff-Appellant, Darius Sias.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

| ,Darius Sias appeals the judgment of the district court upholding the Iberia Parish School Board’s termination of Sias as principal of the Iberia Parish Alternative School.

STATEMENT OF THE CASE

On July 29, 2008, the Iberia Parish Sheriffs Office arrested Darius Sias after a raid on his home pursuant to a search warrant. He was charged with possession of cocaine, possession of marijuana, possession of a firearm, monetary instrument abuse (possession of counterfeit money), and possession of drug paraphernalia. At the time of his arrest, Sias was employed by the Iberia Parish School Board as the principal of the Iberia Parish Alternative School.

The following day, Sias was placed on administrative leave by the superintendent of schools and asked to submit to a drug test before the close of business on July 30, 2008. Sias appeared for a drug test at the designated location one day later, on July 31, 2008. One month later, on August 26, Sias was charged with attempted perjury. Following an administrative hearing on September 18, Sias was suspended with pay. On October 1, 2008, the Iberia Parish School Board scheduled a tenure hearing for Sias on October 28, 2008. Dale Henderson, the superintendent of Iberia Parish Schools, notified Sias of the hearing and of the specific charges against him in a letter dated October 2, 2008. The five charges were:

1. During the execution of a search warrant by law enforcement officials on or about July 29-30, 2008, you were discovered to be in possession of cocaine and marijuana at your residence[.]
2. During the execution of a search warrant by law enforcement officials on or about July 29-30, 2008, you were discovered to be in possession of counterfeit money at your resi-denee[.]
|23. After the above incident you engaged in activity to suborn perjury by requesting an individual named Stacey Bennett to accompany your wife, Lucia Verret, a teacher at New Iberia High School, to your attorney’s office to execute an affidavit that would attest that she (Bennett) was the owner of the cocaine found in your residence on July 29, 2008.
4. On July 30, 2008, you failed to submit in a timely manner to a reasonable drug screen in violation [of] School Board policy.
5. Engaging] in the unlawful activity of possessing and using illegal narcotics in the presence of a former student while said student was residing in your home.
The violations of counts 1, 2, and 5 above amount to immoral activity and render you incompetent to teach and be responsible for the proper education and supervision of your students.

The hearing on October 28, 2008 was conducted even though neither Sias nor his attorney was present. The record was left open for Sias to have the opportunity to cross-examine witnesses and present a defense. The School Board voted to place Sias on administrative leave without pay at the conclusion of that meeting. The tenure hearing continued on February 5, 2009. Sias chose not to introduce any evidence at the hearing. Instead, he argued that the hearing should be postponed (1) until the criminal charges were disposed of; and (2) that the District Attorney should recuse itself or the School Board should hire outside counsel. At the conclusion of this hearing, the School Board voted that “the evidence presented a finding of guilty of incompetence, willful neglect of duty, and dishonesty.” Sias was terminated effective February 5, 2009.

Sias appealed the decision of the School Board to the district court pursuant to La.R.S. 17:443. Following a hearing, the district court issued written reasons upholding the decision of the School Board and issued a judgment in conformity therewith. Sias now appeals.

U,ASSIGNMENT OF ERROR

Sias asserts one assignment of error:

The trial court erred in finding that the Iberia Parish School Board presented sufficient evidence to support the removal of Darius Sias.

DISCUSSION

The procedure governing removal of a tenured teacher is set forth in La.R.S. 17:443(A):

A permanent teacher shall not be removed from office except upon written and signed charges of willful neglect of duty, or incompetency, dishonesty, or immorality, or of being a member of or contributing to any group, organization, movement, or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least twenty days in advance of the date of the hearing, the superintendent with approval of the school board shall furnish the teacher with a copy of the written charges. Such statement of charges shall include a complete and detailed list of the specific reasons for such charges and shall include but not be limited to the following: date and place of alleged offense or offenses, names of individuals involved in or witnessing such offense or offenses, names of witnesses called or to be called to testify against the teacher at said hearing, and whether or not any such charges previously have been brought against the teacher. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at said hearing. For the purpose of conducting hearings hereunder, the board shall have the power to issue subpoenas to compel the attendance of all witnesses on behalf of the teacher. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.

On appeal, a court reviewing a school board’s decision to end tenure is “limited to a determination of whether the school board complied with the procedural requirements of La.R.S. 17:443 and whether its findings were supported by substantial evidence.” Richard v. Lafayette Parish Sch. Bd., 08-73, p. 4 (La.App. 3 Cir. 5/21/08), 984 So.2d 218, 221 (citing Howell v. Winn Parish Sch. Bd., 332 So.2d 822 (La.1976)).

|4In this appeal, Sias does not directly attack the evidence presented to the School Board. Instead, he argues that (1) the School Board treated him and his wife differently, (2) the School Board was aware of certain evidence regarding the investigative officer’s misconduct, (3) the district attorney’s office had a conflict of interest in its representation of the School Board and its prosecution of Sias, (4) the evidence introduced at the tenure hearing does not involve incompetency during the school day or on school grounds, and (5) he has not been convicted of any criminal charges, as they are all pending.

Disparate Treatment of Lucia Vervet

Following this incident, Sias’ wife, Lucia Vervet, was given written instructions to report for a drug screen. Later, the administration of the school system gave her the option to resign from her teaching position rather than face a tenure hearing. We find nothing legally relevant in the School Board’s treatment of Vervet’s case, especially she was never arrested and charged with multiple felonies.

Evidence of Misconduct

While Sias did not present any evidence at the hearing, his attorney did argue that one of the officers investigating his case had been charged with criminal activity and that Sias was one of his victims. There is absolutely no evidence to support this contention except the statement made by Sias’ attorney during the School Board hearing. We find that these allegations, unsupported by the record, are not sufficient grounds to reverse the School Board’s decision.

District Attorney’s Conñict of Interest

Sias argues that it is a conflict of interest for the district attorney to represent the School Board and to prosecute him on criminal charges. In fact, the District Attorney is required to perform both tasks under the law. See La.R.S. 16:2 and | sLa.Code Crim.P. art. 61. These proceedings are entirely separate and the outcome of one does not affect the outcome of the other. We find nothing in the law which supports Sias’ argument. See Summers v. Vermilion Parish Sch. Bd., 493 So.2d 1258 (La.App. 3 Cir.), writ denied, 497 So.2d 312 (La.1986).

Furthermore, Sias’ suggestion that La. R.S. 16:2 should be declared unconstitutional is not properly before this court. See Rule 1-3, Uniform Rules, Courts of Appeal.

Grounds for Termination

At the hearing, the School Board heard evidence of Sias’ arrest and the presence of counterfeit money and drugs and drug paraphernalia at his home. A former student who lived in Sias’s home testified that Sias used drugs in front of him. Another school employee testified that he gave drugs to Sias. Sias also did not timely submit to a drug screen, and when he did show up, he refused one of two tests. Sias did not mount a defense, or even cross-examine the witnesses, citing his criminal prosecution. In his brief to this court, Sias attacks the witnesses’ credibility, but nothing more. We find the School Board heard sufficient evidence to support dismissal for willful neglect of duties and dishonesty and did not abuse its discretion in firing Sias.

The evidence for incompetency is less compelling, as there was no evidence of any failure in the performance of his job duties. Even if the School Board erred in finding Sias was incompetent, our findings on the issues of willful neglect of duties and dishonesty renders this issue moot.

Finally, Sias argues that the School Board should have waited to act until the criminal prosecution was concluded. He cites no law to support this argument. We find that the School Board committed no error in firing Sias.

| (CONCLUSION

The judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed to Darius Sias.

AFFIRMED.


author: AMY, Judge.

text:
    STATE of Louisiana v. Michael Kelly STEVENS.
    No. 11-175.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Bradley R. Burget, District Attorney, David R. Opperman, Assistant District Attorney, Vidalia, LA, for Appellee, State of Louisiana.
    Mark O. Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Michael Kelly Stevens.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

hThe defendant, Michael Kelly Stevens, confessed to stabbing the victim, Michael Welch, multiple times in the neck before taking Mr. Welch’s belongings. The defendant was subsequently convicted of first degree murder in connection with the death of Mr. Welch, and was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. The defendant appeals, asserting that the trial court erred in allowing the State to show the jury an unredacted videotape of his interrogation containing references to the defendant’s prior convictions. For the following reasons, we affirm.

Factual and Procedural Background

The victim, Michael Welch, was in poor health, according to several witnesses. The record indicates that, after no one had heard from Mr. Welch for several days, his brother and a neighbor went to check on him. Mr. Welch’s brother testified that, after he used his key to open Mr. Welch’s door, he found his brother’s body on the living room floor. A subsequent autopsy revealed that Mr. Welch had been stabbed multiple times in the neck. In the course of their homicide investigation, the police learned that the defendant, Michael Kelly Stevens, had been living with Mr. Welch. They also learned that Mr. Welch’s truck was missing.

The truck, along with the defendant, was subsequently located in Houston, Texas. According to Beau Beaty, a Harris County Sheriffs Deputy, the defendant was either asleep or passed out in the truck in a closed public park. Deputy Beaty further testified that, when he attempted to take the defendant into custody, the defendant jumped into the Houston Ship Channel and had to be fished out by other deputies.

|2Officers from the Vidalia Police Department and the Concordia Parish Sheriffs Office interviewed the defendant in Houston. During that interview, the defendant confessed that, after Mr. Welch refused to let the defendant borrow his truck, he stabbed Mr. Welch and took Mr. Welch’s truck and the cash from Mr. Welch’s wallet. The defendant also made unsolicited statements concerning his status as a parolee and his parole officer. The defendant’s motion in limine seeking redaction of these statements was denied. A copy of the defendant’s videotaped statement was submitted into evidence. A grand jury later indicted the defendant for first degree murder, a violation of La.R.S. 14:30, in connection with the death of Mr. Welch. The State chose not to seek the death penalty.

After a jury trial, the defendant was convicted of first degree murder. The trial court subsequently sentenced the defendant to life imprisonment, without the benefit of probation, parole, or suspension of sentence.

The defendant appeals, asserting as his sole assignment of error that the trial court erred in denying his “pre-trial motion in limine to prohibit the use at trial of any evidence of other crimes or back [sic] acts.”

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

Other Crimes Evidence

In his sole assignment of error, the defendant complains that the trial court erred in allowing “other crimes” evidence to be used at trial. After the State filed | c,its notice of intent to use evidence of other crimes, the defendant filed a motion in limine. Therein, the defendant sought to prohibit the introduction of any statement regarding the defendant’s criminal history, probation, arrests or charges as well as any “allusion to being on felony probation, a probation officer, or any other statement which referred to a prior criminal history.” The defendant specifically requested that instances in his videotaped interrogation where he referred to his parole officer or being on parole should be redacted. The defendant’s attorney argued that those statements were prejudicial and expressed her concern that the State would attempt to discuss the defendant’s prior crime in detail. After a hearing, the trial court denied the motion in limine, finding that the statements were “unsolicited” and therefore admissible.

An unredacted copy of the defendant’s videotaped statement was played at the trial. Therein, the defendant made several references to his status as a parolee or to his parole officer. With one exception, the defendant’s references to his status as a parolee or to his parole officer were unsolicited by questions from the investigators. At one point, one of the investigators questioned the defendant |4about one of his references to being involved in fights while in jail. The defendant also discussed his actions after he stabbed Mr. Welch, including taking money from Mr. Welch’s wallet, taking his truck, his involvement in a “hit-and-run” accident, and multiple instances of illegal drug use.

When the videotape of the defendant’s statement was played at trial, the defendant’s attorney objected to its introduction “subject to the same objection we previously made.” The trial court overruled the objections. The trial court also denied the defendant’s motion for new trial, which was based, in part, on the admission of “other crimes” evidence.

Louisiana Code of Evidence Article 404(B)(1) addresses the admissibility of evidence of other crimes, wrongs, or acts. It states:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

When other crimes evidence is offered for a permissible purpose, the State must provide the defendant with notice that it intends to offer such evidence and is required to prove that the defendant committed those acts by clear and convincing evidence. State v. Blank, 04-204 (La.4/11/07), 955 So.2d 90, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007). Even where other crimes evidence is relevant, the probative value of the unrelated offenses must be weighed against their possible prejudicial effect. Id.

| ¿However, the erroneous admission of other crimes evidence is subject to a harmless error analysis. State v. Ridgley, 08-675 (La.App. 5 Cir. 1/13/09), 7 So.3d 689, writ denied, 09-374 (La.11/6/09), 21 So.3d 301; State v. Grandell, 43,262 (La.App. 2 Cir. 6/18/08), 987 So.2d 375, writs denied, 08-1582, 08-1659 (La.5/27/09), 5 So.3d 139, 140, cert. denied, U.S.-, 130 S.Ct. 183, 175 L.Ed.2d 115 (2009). An error is harmless where the verdict actually rendered is surely unattributable to the error. Crandall, 987 So.2d 375. Reversal is only required where there is a reasonable possibility that the evidence might have contributed to the verdict. Ridgley, 7 So.3d 689.

With regard to the defendant’s statements concerning his status as a parolee, the trial court’s admission of those statements, even if erroneous, was harmless. The defendant was charged with first degree murder, a violation of La.R.S. 14:30. At trial, the State contended that the defendant was guilty of first degree murder because the murder was committed during the commission of a robbery. The defendant argued that a responsive verdict of manslaughter or second degree murder was appropriate. He contended that this was either a “heat of passion” crime committed during an argument between two roommates or that his alleged intoxication negated any specific intent. After approximately an hour of deliberation, the jury returned a verdict of guilty of first degree murder.

First degree murder is defined as the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm and is engaged in the perpetration of or attempted perpetration of certain listed felonies, including armed robbery, first degree robbery, second degree robbery, and simple robbery. La.R.S. 14:30(A)(1). The determination of whether a murder was committed during the perpetration of a certain felony depends not on the order of events, but 16on whether the “the murder and the felony form a continuous transaction without a significant break of events.” State v. Ramsdell, 09-1510, p. 9 (La.App. 3 Cir. 10/6/10), 47 So.3d 78, 84. Thus, so long as the course of events forms a continuous transaction, it is not necessary that the robbery occur before the killing of the victim. Id.

Here, the record supports a conclusion that the defendant killed Mr. Welch in order to take his belongings. Although the revelation that the defendant was a parolee may have cast him in a bad light, it was not so prejudicial as to have affected the verdict. We note that, other than the statements contained in the defendant’s videotaped statement, the State did not elicit any testimony regarding the defendant’s previous conviction or status as a parolee. The State made no reference to the subject matter of the defendant’s prior conviction. Further, although contained within the primary evidence offered by the State, the statements were vague and do not indicate for which crime (or crimes) the defendant had been previously convicted. See Crandell, 987 So.2d 375.

The State offered overwhelming evidence that the defendant killed Mr. Welch by stabbing him in the neck and that the defendant also robbed Mr. Welch. As previously discussed, the State offered the defendant’s videotaped statement wherein he stated that he had been staying with Mr. Welch and helping him out around the house. The defendant claimed that he had taken several pills on the day of the murder. He said that he wanted to visit his son, who lives in Texas, and asked to borrow Mr. Welch’s truck. According to the defendant, Mr. Welch refused to let him borrow the truck.

The defendant claimed that, while they were arguing over the use of the truck, Mr. Welch picked up a steak knife and cut him on the top of the head. He |7stated that he took the knife from Mr. Welch and “slashed” at his neck. Further, the defendant claimed that he did not remember inflicting multiple wounds on Mr. Welch. The defendant stated that, after he stabbed Mr. Welch, he changed out of his bloody shorts and took money from Mr. Welch’s wallet and the truck. According to the defendant, he spent Mr. Welch’s money on crack cocaine and alcohol, sold Mr. Welch’s tools for alcohol, and rear-ended another vehicle with Mr. Welch’s truck.

We also note that the defendant contended that his intoxication negated the specific intent required for a finding of guilty of first degree murder, and that the jury was able to consider the defendant’s videotaped statements that he was intoxicated from taking pills at the time of the offense. Further, the jury could consider whether this was an offense which occurred in a “sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection,” thus warranting a verdict of manslaughter. See La.R.S. 14:31(A)(1).

In addition to the defendant’s videotaped confession, the State’s witnesses contradicted several of defendant’s claims that tended to minimize his culpability for the crime. Contrary to the defendant’s assertion that he only stabbed Mr. Welch once, Dr. Karen Ross, the forensic pathologist, testified that Mr. Welch suffered a nine-inch long wound on his neck. According to Dr. Ross, the wound was actually composed of at least four or five different wounds and was between 2¾-3 inches deep. It severed Mr. Welch’s left carotid artery and jugular vein and separated his hyoid bone from the cartilage in his neck.

David Hedrick, an investigator with the Concordia Parish Sheriffs Office, testified that, although the defendant claimed that Mr. Welch cut him on the top of | sthe head with a steak knife, he could find no evidence of injury to the defendant’s head. Further, several witnesses testified that Mr. Welch was in such poor health that he could barely walk and could not bathe himself. Those witnesses, including his home health aide, expressed incredulity that Mr. Welch would have had the capacity to “lunge” at the defendant and cut him on the top of the head.

Based on our review of the record, we find that any error in admitting the statements referring to the defendant’s status as a parolee or to a parole officer is harmless. This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the defendant’s convictions and sentence.

AFFIRMED.

      . To the extent that the defendant’s assignment of error contends that the trial court erroneously admitted evidence of other crimes committed by the defendant immediately before the murder or during his flight to Houston, he has failed to brief those issues and they are therefore deemed abandoned. See Uniform Rules — Courts of Appeal, Rule 2-12.4. We further note that the defendant relied on several of those instances in his closing argument, including taking Mr. Welch's money and his truck, being involved in a hit-and-run accident, purchasing crack cocaine, and using various illegal drugs.

      . A transcription of the videotaped statement reveals that, at one point, the defendant stated that "Todd Gray is my parole officer.” Later, he stated:
      [The victim] let me live with him. You know, that was my parole address. And when I got released in 2007 I paroled to Linus Wilkerson's house. They let me parole to Linus Wilkerson's house first.... I mean, I used his address when I stayed here when I came here, you know, he was a good dude and it killed me when his wife passed away.
      When she passed away, as a matter of fact, I was there when she passed away and he — when I drove up to report, me and Todd Gray.
      Further, the defendant stated, "I mean, I’ve been locked up, I been in plenty of fights, but I ain’t never, you know, went and get something out of the wreck yard [sic].... I didn't want to get me a rod or something and go stab them.”

      . According to the transcript, one of the investigators asked the defendant, “[w]hen you’ve gotten into fights you said in jail and what have you, what’s ever happened when you get in fights, do you just get angry and go to swing at people?”


text:
    Gwen GONSOULIN v. Michelle PONTIFF.
    No. 11-177.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Charles A. Mouton, Mahtook & Lafleur, Lafayette, LA, for Plaintiff-Appellee, Gwen Gonsoulin.
    Bryan David Scofield, James Thomas Rivera, Scofield & Rivera, Lafayette, LA, for Defendant-Appellant, Michelle Pontiff.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

_L¡The defendant, Michelle Pontiff, appeals a judgment of the trial court evicting her from a home owned by the plaintiff, Gwen Gonsoulin.

STATEMENT OF THE CASE

In June 1992, Michelle Pontiff and her husband purchased a house at 104 Citron Drive in Youngsville, Louisiana. By the end of that year, they could no longer afford the house, and Pontiff and her husband executed a dation en paiement in favor of Gwen Gonsoulin, Pontiffs mother, on December 22, 1992. Pontiff continued to live in the house, even after she divorced her husband.

In April 2010, Gonsoulin served a notice of eviction on Pontiff through a justice of the peace court. Pontiff filed an exception, answer, and reconventional demand alleging that the amount in dispute was greater than the subject matter jurisdiction of the justice of the peace court, and the case was removed to the Fifteenth JDC. Pontiff argued that Gonsoulin had granted a right of habitation in favor of Pontiff which entitled Pontiff to use of the home until Pontiffs death. Gonsoulin claimed that she never executed such a document. The case proceeded to trial.

At trial, Pontiff admitted that she could not produce a document granting her a right of habitation. No such document had been recorded in the conveyance records of Lafayette Parish. Pontiff claimed that her mother actually executed two documents, one in Gonsoulin’s living room, and one at the Lafayette Parish Assessor’s office, but that both had been lost or destroyed. Because a right of habitation is a real right and must therefore be in writing, she sought to prove the existence and contents of these documents by resorting to La.Civ.Code art. 1832, which states:

|2When the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption, unless the written instrument has been destroyed, lost, or stolen.

Following a hearing, the trial court found that Pontiff had proven that Gonsou-lin executed a document at the assessor’s office purporting to establish a limited right of habitation to Pontiff for the purpose of receiving a homestead exemption on the property. The court found, however, that the cause of the granting of the right of habitation was illicit and unconstitutional, and therefore the document was a nullity. The trial court granted Gonsoulin a judgment evicting Pontiff from the house. Pontiff now appeals.

ASSIGNMENTS OF ERROR

Pontiff alleges three errors by the trial court:

1. The district court erred, as a matter of law, when it held that granting a Homestead Exemption was unconstitutional and unlawful.
2. The district court erred, as a matter of law, in failing to find an alternate true cause under Civil Code articles 1970 and 1967, which is valid and lawful.
3. The district court erred in finding a limited Right of Habitation, as a matter of law, when no limitation exists in the forms provided by the Tax Assessor’s Office.

DISCUSSION

“Habitation is the nontransferable real right of a natural person to dwell in the house of another.” La.Civ.Code art. 630. “The right of habitation is established and extinguished in the same manner as the right of usufruct.” La.Civ.Code art. 631. A conventional usufruct is established by a juridical act. See La.Civ.Code art. 544. Because the object of the right of habitation is necessarily immovable property, it must be in writing, and will have effect on third parties only after it is filed for registry. See La.Civ.Code art. 1839.

| sAt the trial, Pontiff attempted to prove that Gonsoulin’s attorney prepared and Gonsoulin executed a right of habitation in favor of Pontiff, but that Gonsoulin had lost or destroyed that document. The trial court did not find evidence to support the existence of this document, and Pontiff abandons this contention by not assigning as error that part of the trial court’s ruling.

Likewise, Gonsoulin does not appeal the finding of the trial court that she executed a document at the Lafayette Parish Assessor’s office. It is clear that until 2000, the Lafayette Parish Assessor allowed residents to take advantage of the homestead exemption by executing a form document granting a “right of use of habitation” to the occupants of a house. When a new assessor was elected in 2000, he ended this practice and destroyed the forms.

The question raised in this appeal is the effect of this document. Pontiff introduced two forms into the record, both with the same operative language:

BE IT KNOWN, that on this_day of _ before the undersigned Notary Public and witnesses personally appeared_a resident of Lafayette Parish, Louisiana who says as follows: _occupies a residence at_in the city of Lafayette, Louisiana, on property owned by_Af-fiant described as being LOTS _to the City of Lafayette, Louisiana.
I hereby certify that no rent in any form is collected on this property. Since there is no rent collected, Affiant does hereby grant unto the said _ the right of use of habitation of said property allowing him to claim Homestead Exemption under the laws of the State of Louisiana.

In her first assignment of error, Pontiff argues that the trial court erred in finding that the cause of the contract was unlawful. The supreme court discussed cause in Baker v. Maclay Properties Co., 94-1529, p. 14 (La.1/17/95), 648 So.2d 888, 895-96:

|,,LSA-C.C. art. 1966 provides that an obligation cannot exist without a lawful cause. Cause is the reason that a party obligates itself. LSA-C.C. art. 1967. The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy. LSA-C.C. art. 1968. A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed. LSA-C.C. art. 2030. Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity. LSA-C.C. art. 7. See Holliday v. Holliday, 358 So.2d 618 (La.1978).

It is clear from the testimony of Conrad Comeaux, the current assessor of Lafayette Parish, and Vicky Domingue, a longtime employee of the assessor’s office, that the effect of filing this document was that the property was listed as exempt from property taxes. As owner of the land, Gonsoulin was clearly not entitled to claim a homestead exemption in this property. See La. Const. Art. VII, Sec. 20. The trial court did not err in finding that the cause of the contract was illegal.

In her second assignment of error, Pontiff claims that there was a valid alternative cause. We are not persuaded by the argument that the effect of the “right of use of habitation” had a legitimate cause, as Gonsoulin wanted to avoid the payment of taxes, and Pontiff has paid the property taxes instead of Gonsoulin since 2000. The clear purpose of the document was to exempt the house from property taxes, not find someone else to pay them. The fact that Pontiff, who paid no rent for over eighteen years, paid the property taxes since 2000 is not dispositive of the issue before us. Furthermore, there is no validity to the argument that in 1996 Gonsoulin executed a document that met the requirements of Article VII, Section 20(A)(4) and therefore the cause of the contract is licit. First, that provision of the constitution applies very clearly to usufructs, not a right of | r,habitation. Second, Section 20(A)(4) was not added to the Louisiana Constitution until 2004. See Acts 2004, No. 929. This assignment of error strains credulity.

Finally, we find no error in the trial court’s finding that there was a limited right of habitation. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046. In the absence of the actual document executed by Gonsoulin, Pontiff introduced the forms used by the assessor’s office. The forms very clearly state that “the right of use of habitation” is granted “allowing him to claim Homestead Exemption.” The trial court found that the words of the document are clear and explicit and lead to no absurd consequences. We find no error in that determination.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Michelle Pontiff.

AFFIRMED.


author: EZELL, Judge.

text:
    Continuing Tutorship of Mitchell Layne FRANQUES.
    No. CA 11-190.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    David Emile Marcantel, Jennings, LA, for Appellant, Earline Landry.

      Concepcion Otero, New Orleans, LA, for Appellee, Mitchell Lane Franques.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

li>The issue presented by this case is whether a permanent tutrix has the authority to decide the residence and living arrangements of her charge who is over the age of eighteen.

FACTS

Mitchell Franques was born on July 21, 1981. Earline and Robert Landry, Mr. Franques’ aunt and uncle, petitioned for a continuing tutorship in February 1999, after the death of his parents. They based their petition on the fact that Mr. Fran-ques possessed less than two-thirds the average mental ability of a normal child the same age. On February 9, 1999, a judgment was signed ordering that Mr. Franques be placed under a continuing tutorship. Ms. Landry was appointed tu-trix, and Mr. Landry was appointed under-tutor. At that time, Mr. Franques was seventeen years old.

Mr. Franques was moved to DeRidder in 2000 to live in a place where he could learn to live on his own. On July 29, 2010, a rule to show cause was filed by Ms. Landry seeking to move Mr. Franques to a different care facility closer to their home to make their supervision of him easier. Mrs. Landry asserted that Southern Home Care Services, doing business as ResCare, would not allow them to remove Mr. Franques from their facilities.

On August 81, 2010, Mr. Franques filed a petition of intervention opposing the move. He asserted that he is the one that does not want to move. Citing several reasons for wanting to remain in DeRid-der, Mr. Franques stated that he has worked at Burger King for approximately nine years and is currently an assistant manager trainee. Mr. Franques also indicated that he has established friendships and a relationship. He was twenty-nine years old at the time of the filing of his petition and argued that pursuant to La. Civ.Code art. 359, he has the legal capacity of an emancipated minor with the “power of administration.” Mr. Franques argues that lathere is no limitation placed on his right to live where he chooses since he has not been interdicted.

The trial court heard the matter on October 12, 2010. After hearing argument from counsel, the trial court ruled that Mr. Franques could live where he chose and denied the transfer. Judgment was signed on November 8, 2010. Mrs. Landry appeals the decision of the trial court.

DISCUSSION

Mrs. Landry argues that as Mr. Fran-ques’ tutrix she has the authority to decide where his residence will be located and to forcibly move him from his place of residence in DeRidder. Mrs. Landry claims that if Mr. Franques is able to decide where he will live, then there would never be any reason to do a permanent tutorship.

The Civil Code articles regarding the continuing tutorship of a mentally retarded person are found in La.Civ.Code arts. 354-362. Louisiana Civil Code Article 358 confers the authority, privileges, and duties of tutor of a continuing tutorship and provides that “same authority, privileges, and responsibilities as in other tutorships, including the same authority to give consent for any medical treatment or procedure, to give consent for any educational plan or procedure, and to obtain medical, educational, or other records”.

Louisiana Civil Code Article 359 places restrictions on the legal capacity of the mentally retarded person as follows:

The decree if granted shall restrict the legal capacity of the mentally retarded person to that of a permanent minor, except that after the age of eighteen the retarded person, unless formally interdicted, shall have the legal capacity of a minor who has been granted the emancipation conferring the power of administration as set forth in Chapter 2, Section 2 of this book and title.

Mr. Franques relies on Article 359 claiming that when he became eighteen years old, he had the power to decide where he would reside because he had the legal capacity of a minor who had been emancipated with the power of administration. In |4response, Mrs. Landry argues that there is no such thing as emancipation conferring the power of administration because Chapter 2, Section 2 as referred to in Article 359 was repealed by the revision of the emancipation articles by Acts 2008, No. 786, § 1, effective January 1, 2009.

The prior law providing for emancipation conferring the power of administration provided that it could be accomplished by notarial act or by reason of ill treatment. Former La.Civ.Code arts. 366 and 368. A minor emancipated by these means had full administration of his estate. Former La.Civ.Code art. 370. Certain limitations were placed on the full administration powers. Former La.Civ.Code arts. 371-374. The emancipation could be revoked when the minor contracted engagements which exceeded the limits prescribed by law. Former La.Civ.Code arts. 377-378.

The new law now provides for a judicial emancipation and emancipation by authentic act instead of emancipation conferring the power of administration. Emancipation by marriage was also retained. Under the new law, a judgment of emancipation may provide for full emancipation conferring all effects of majority or for limited emancipation which confers the effects of majority as specified in the judgment. La.Civ.Code art. 366. The authentic act of limited emancipation specifies the kinds of juridical acts that the emancipated minor shall have the capacity to make with all other effects of minority continuing. La.Civ.Code art. 368.

Mr. Franques became eighteen years old on July 21,1999. At that time, by law, Mr. Franques had the legal capacity of a minor who has been granted emancipation conferring the power of administration because Mr. Franques had never been formally interdicted. Louisiana Civil Code Article 6 provides that “substantive laws apply prospectively only” unless the legislature has declared otherwise. There is no such declaration in this case. Contrarily, the Act states that the effective date of the new emancipation statutes is January 1, 2009.

Lit is obvious that the amended statutes on emancipation would necessarily divest Mr. Franques of vested rights he obtained when he reached age eighteen. Therefore, we will apply the law as it was in previously set forth in La.Civ.Code arts. 366-378, when Mr. Franques turned eighteen.

In In re Greer, 184 So.2d 104 (La.App. 4 Cir.1966), the court held that a minor emancipated by marriage remains emancipated if widowed before the age of majority because this emancipation may not be revoked. The court held that the widow did not revert to her previous legal inability to contract.

Similarly, an emancipation conferring the powers of administration can only be revoked when the minor has contracted engagements which exceed the limits prescribed by law. Former La.Civ.Code art. 377. There is no evidence in the record that Mr. Franques has exceeded any contractual limits placed on him by the law.

Ms. Landry also argues that the law is clear that the domicile of a person under a continuing tutorship is that of his tutor. La.Civ.Code art. 43. “The domicile of a natural person is the place of his habitual residence.” La.Civ.Code art. 38. Pursuant to former La.Civ.Code art. 373, the authority of a tutrix for an emancipated minor who has only the power of administration of his estate continues for the purpose of alienating, affecting, or mortgaging any of his immovable property.

In Succession of Caprito, 468 So.2d 561 (La.1985), the supreme court recognized that an interdict can acquire a domicile in another state when he has sufficient mentality to do so. Similarly, Mr. Franques has the capacity of a minor who has been granted emancipation with the powers of administration. According to former | (jLa.Civ.Code art. 373, the authority of tutor or undertutor only continues as it concerns any immovable property that Mr. Franques may own. Since he has the capacity to make administrative decisions, he certainly has the capacity to determine where he will live.

For these reasons, we find that the trial court was correct in ruling that Earline Landry, tutrix of Mitchell Franques does not have the authority to move Mr. Fran-ques from his place of residence. Costs of this appeal are assessed to Earline Landry.

AFFIRMED.

      . Obviously, emancipated minors can still have the power of administration under the new law. However, it is only the specific powers of administration that are specified in an authentic act or in a judgment. In making changes to the emancipation law, the legislature made no changes to La.Civ.Code art. 359. Article 359 contemplates a mentally retarded person having some administration rights unless he is interdicted. Previously, these powers were the same as an emancipated minor with the power of administration. As of January 1, 2009, the effective date of the new emancipation law, it is unclear what those powers should be now for a mentally retarded person who has reached age eighteen after this effective date and has not been interdicted. This is a situation the Legislature must address.


text:
    Paul D. MOREAU, et ux. v. Mary Morgan McKENZIE, et al.
    No. CA 11-197.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Fred Andrew Pharis, Pharis & Pharis, Alexandria, LA, for Plaintiffs/Appellants, Paul D. Moreau Anna Brasher Moreau.
    Rodney Marchive Rabalais, Rabalais & Roy, Marksville, LA, for Defendants/Ap-pellees, Priscilla Morgan Goudeau, Mary Morgan McKenzie.
    Randall Brian Keiser, Keiser Law Firm, Alexandria, LA, for Defendant/Appellee, Continental Casualty Company.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

hln this matter, Paul and Anna Moreau appeal the trial court’s ruling granting Kelly Ducote’s motion for summary judgment and dismissing their claims against her. For the following reasons, we affirm the decision of the trial court.

In April 2008, the Moreaus purchased a home in Alexandria, Louisiana from Mary McKenzie and Priscilla Goudeau (the sellers). Ms. Ducote served as a real estate agent for both parties. As part of the sale, Ms. Ducote and the sellers presented the Moreaus with a property disclosure form which indicated that the home’s roof leaked “and was replaced in 1998/99 [sic] all new decking & felt replaced with 70 yr. clay tile.” The sellers attested on the document that the information provided was correct. The Moreaus were advised twice by Ms. Ducote in writing to secure a home inspection, which they did. The resulting inspection placed the roof at an age of six to ten years, with a few problems of “minor concern.” The Moreaus purchased the home despite these concerns. The act of sale stated two separate times that the sale was “as is” and without warranty. The sale further set forth that Ms. Ducote issued no warranty as to the home or its condition.

After the sale was completed, the Mor-eaus sought to repair a few broken roof tiles. At that time, they learned that the tiles on the roof had not been manufactured for several decades, meaning the entire roof had not been ten years old as they had previously thought. In fact, during the 1998-99 repairs, the ceramic roof tiles were removed, the underlying deck and felt completely replaced, and the seventy-year-old tiles laid back down. The Moreaus filed the current suit against Ms. Ducote, her insurer, and the sellers for redhibition and damages. All redhibition claims against Ms. Ducote were dismissed by a prior judgment on exception, which has not been appealed. Ms. Ducote then filed a motion for |2summary judgment seeking the dismissal of the remaining claims against her, arguing the Moreaus had presented no evidence to support their remaining claims of fraud and negligent misrepresentation. The trial court agreed, granting Ms. Ducote’s motion and dismissing the Moreaus’ claims. From this decision, the Moreaus appeal.

The Moreaus assert one assignment of error, that the trial court erred in dismissing their claims against Ms. Ducote and her insurer. We disagree.

Louisiana Code of Civil Procedure Article 966(B) provides that summary judgment shall be granted where the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. The Louisiana Supreme Court discussed the standard applicable to appellate review of summary judgments in Robinson v. Heard, 01-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945:

A reviewing court examines summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A reviewing court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith, 639 So.2d at 750.

While the initial burden of proof is on the mover to show that no genuine issue of material fact exists, if he will not bear the burden of proof at trial on the issue that is presented by the motion for summary judgment, he is not required “to negate all essential elements” of his opponent’s claim but need only point out “that there is an absence of factual support for one or more elements essential” to his opponent’s action. La.Code Civ.P. art. 966(C)(2). If the opponent “fails to [(¡produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

In Waddles v. LaCour, 06-1245, p. 5 (La.App. 3 Cir. 2/7/07), 950 So.2d 937, 942, writs denied, 07-827, 07-882 (La.6/22/07), 959 So.2d 496, 498 (citations omitted)(quoting Osborne v. Ladner, 96-863, p. 16 (La. App. 1 Cir. 2/14/97), 691 So.2d 1245, 1257), this court discussed the duties of a real estate broker or agent:

A purchaser’s remedy against a real estate broker is limited to damages for fraud under LSA-C.C. art. 1953 et seq. or for negligent misrepresentation under LSA-C.C. art. 2315. The action for negligent misrepresentation arises ex delicto, rather than from contract. In order for a plaintiff to recover for negligent misrepresentation, there must be a legal duty on the part of the defendant to supply correct information, a breach of that duty, and damage to the plaintiff caused by the breach. A real estate broker or agent owes a specific duty to communicate accurate information to the seller and the purchaser and may be held liable for negligent misrepresentation. However, the duty to disclose any material defects extends only to those defects of which the broker or agent is aware.

The record before this court contains no evidence whatsoever of any negligent misrepresentation on the part of Ms. Ducote, let alone any actions that rise to fraud. The Moreaus admit in their deposition testimony that they have no witnesses, evidence, or factual basis for their belief that Ms. Ducote knew any of the information she put on the disclosure form was false or misleading. The sellers both testified that Ms. Ducote correctly put the information they told her on the disclosure form. Moreover, that form included an attestation signed by the sellers that the information contained therein was correct. The disclosure form was signed or initialed by the sellers on every page. Ms. Ducote testified that she put the information down directly as worded by the sellers. While this testimony is self-serving, it is not disputed by the Moreaus. The Moreaus admit they have never even spoken to the seller to determine any culpability on the part of Ms. Ducote. 14Further, when asked why she felt Ms. Ducote should have known the age of the roof when the home inspector examining the house thought the roof was six to ten years old, Mrs. Moreau stated that she “[didn’t] expect that [Ms. Ducote] would have known,” as she was not an expert as to roofing.

The Moreaus have offered nothing into the record other than their own speculative conjecture that Ms. Ducote breached her duty to them. The Moreaus simply believe they were lied to, but offer no proof, and even admit they do not know by whom. There is no genuine issue of material fact in the record before this court, and the trial court was correct in its ruling that summary judgment was appropriate in this matter.

For the above reasons, the ruling of the trial court is hereby affirmed. Costs of this appeal are assessed against the Mor-eaus.

AFFIRMED.