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NUMBER 13-01-608-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI B EDINBURG CHRISTINE ANN SIVERAND, A/K/A CHRISTINE ANN JAMES, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the County Court at Law of San Patricio County, Texas O P I N I O N Before Chief Justice Valdez and Justices Dorsey and Baird[1] Opinion by Justice Baird Appellant was charged by information with the misdemeanor offense of criminal mischief. A jury convicted appellant of the charged offense and assessed punishment at 365 days confinement, probated for two years. We reverse. I. Factual Summary. The record reveals a four year feud between the complainant and appellant, two young women who at separate times had a relationship with the same man who later married appellant. In the early morning hours of November 3, 2000, the complainant entered the Millennium nightclub in Aransas Pass. Appellant was inside the club but later exited to the parking lot. The complainant asked her friend, Sabina Rodriguez, to follow appellant. Shortly after returning to the club, appellant and the complainant got into a physical confrontation. When the fight ended, the complainant and Sabina left in the complainant=s vehicle. As they drove away, Rodriguez said appellant Akeyed@ the complainant=s vehicle. Rodriguez testified she followed appellant into the parking lot and saw her Akeying@ the complainant=s vehicle and heard metal scraping. Photographs of the damage to the complainant=s vehicle were entered into evidence. Norma Dixon, appellant=s sister-in-law, testified appellant left the club to make a telephone call to check on her children. Dixon further testified the complainant=s reputation for peacefulness and truthfulness was bad. Dixon also testified there were people other than appellant would want to damage the complainant=s vehicle. Officer Fernando Lopez of the Aransas Pass Police Department testified he saw the complainant and Rodriguez following this altercation. The two women were at the police station Ahappy ... that they had got [appellant].@ Appellant=s husband testified he was the former boyfriend of the complainant. He stated the complainant=s vehicle had been keyed three years before the alleged incident. Finally, appellant testified she left the nightclub to retrieve her cell phone and call the babysitter to check on her daughter. Appellant testified she had several encounters with the complainant in the past and had reported each incident to the police. She related a conversation in the parking lot with Rodriguez where she (appellant) denied damaging or even knowing which vehicle belonged to the complainant. II. The State=s Failure to File Appellate Brief. Appellant=s brief was filed on December 3, 2001. The State=s brief was due on or before January 2, 2002. Tex. R. App. P. 38.6(b). On March 25, 2002, after not receiving a brief from the State, we ordered the State to file a brief. On April 25, 2002, the State filed a motion for extension of time to file its brief. That motion was granted and the State was given until May 27, 2002, to file its brief. However no brief has been filed, and the State has not requested additional time to file a brief. The Texas Rules of Appellate Procedure require appellant to either file a brief or state that he no longer desires to prosecute the appeal. Tex. R. App. P. 38.8(b). However, there is no corresponding rule requiring the State to file a brief in response to appellant=s brief.[2] The State=s failure to file a brief leaves this court with several options. We could accept appellant=s argument at face value and summarily reverse. This, we believe, would be unfair to the trial judge who, through no fault of his own, is left with no one to defend his ruling. On the other hand, we could abandon our roles as impartial jurists and become advocates for the State advancing arguments in order to affirm. Of course, such behavior is completely unacceptable for any number of reasons. First, our Code of Judicial Conduct requires that we act impartially. Second, the rules of appellate procedure require the parties to advance their own arguments. Tex. R. App. P. 38.1(h) and 38.2(a)(1). Finally, decisional authority prevents us from advancing arguments on behalf of either party. Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995) (AAppellant leaves us to find error and argue his case for him; this is inadequate briefing, and as such, it presents nothing for our review.@ citing Garcia v. State, 887 S.W.2d 862, 871 (Tex. Crim. App. 1994)); Anson v. State, 959 S.W.2d 203, 208 n.2 (Tex. Crim. App. 1997) (Baird and Overstreet, JJ., dissenting) (Appellate judges who resolve issues not raised by the parties are partisan advocates, not impartial jurists.). We believe the better option is to treat the State=s failure to file a brief as a confession of error. While the confession of error by the prosecutor in a criminal case is an important factor, it is not conclusive. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002). The appellate court must make an independent examination of the merits of the claim of error. Id. However, this examination must necessarily be limited to the arguments advanced in the trial court, otherwise, we run afoul of the prohibition of advancing argument on behalf of the parties. III. Character Evidence. Appellant=s sole point of error contends the trial judge erred in excluding the testimony of Aisha Anderson, the third witness called to testify for appellant. Anderson testified she lived in Nueces County. The alleged offense occurred in San Patricio County. Anderson testified she did not know the complainant personally, but was familiar with her reputation in the community where the complainant resided or was well known. The State objected to Anderson=s testimony on two bases: (a) she was not established in or connected to the community because she was a resident of Nueces County; and, (b) because her testimony was based upon hearsay. Regarding the State=s Acommunity@ argument, defense counsel stated: Your Honor, I=m trying to show that this witness and the complaining witness and other young people her age are all members of a subculture . . . of people who attend the same nightclubs . . . in Aransas Pass and in Corpus Christi and that this witness, through her friendships with other people in . . . the nightclub attending young people community, had heard of and knew of the reputation of the complaining witness. Counsel further argued that even though the complainant did not reside or work in Nueces County, the complainant did Aengage in recreational activities in that community.@ The trial judge sustained the State=s objection and Anderson was not permitted to testify. The trial judge explained his ruling as follows: I=m going to sustain the State=s objection and basically instruct you at this time that unless you can show that [Anderson] has knowledge of the reputation either in the community where [the complainant] lives or works, not where she quote, unquote, goes over some place to do partying or whatever like that, that you cannot use that as character evidence in this case. For the reasons stated in part II of this opinion, our review of this point of error is limited to three narrow issues. The threshold question is whether character evidence related to a complainant is admissible. That question must be answered in the affirmative because Rules 404(a)(2) and 608(a) of the Texas Rules of Evidence authorize this type of evidence.[3] The second question is whether Anderson=s testimony was properly excluded by the hearsay rule. The answer is clearly no. Rule 803(21) of the Texas Rules of Evidence specifically provides that reputation testimony of a person=s character among associates or in the community is not excluded by the hearsay rule. This is true because A[r]eputation testimony is necessarily based on hearsay, but is admitted as an exception to the hearsay rule.@ Moore v. State, 663 S.W.2d 497, 500 (Tex. App.BDallas 1983, no pet.).[4] Finally, we turn to the question of whether a character witness is required to reside or work in the same Acommunity@ as the one about whom the testimony is related. This question must also be answered in the negative. Jordan v. State, 290 S.W.2d 666, 667 (Tex. Crim. App. 1956) (testimony of person who knew defendant's reputation in Dallas was admissible even though they did not know reputation in Richardson where defendant lived)). The Court of Criminal Appeals has adopted a liberal definition of Acommunity@ for reputation purposes. Moore, 663 S.W.2d at 501. In Arocha v. State, the Court held: AA person's community is not limited to the locale where the case is tried nor his residence at the date the offense was committed.@ 495 S.W.2d 957, 958 (Tex. Crim. App. 1973) (permissible to question character witness about offense committed in Houston although defendant was resident of Austin) (emphasis added); Ayers v. State, 162 Tex. Crim. 586, 288 S.W.2d 511 (Tex. Crim. App. 1956) (permissible to question Texas witness about offense in New York). For these reasons, we hold the trial judge abused his discretion in excluding the testimony of Anderson. IV. Harm Analysis. Our holding that the trial judge erred does not end our inquiry. We must now determine whether the error requires reversal. Rule 44.2(b) of the Texas Rules of Appellate Procedure prescribes the harm analysis for the erroneous exclusion of evidence. Tex. R. App. P. 44.2(b). Under that rule, error not affecting a substantial right must be disregarded. A substantial right is violated when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776 (1946)). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). However, if the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury's verdict. Webb, 36 S.W.3d at 182. In this context, neither party has the burden of proof under rule 44.2(b). Id. Rather, the appellate court will examine the record for purposes of determining harm. Id. Therefore, the fact that the State failed to file a brief does not affect our consideration of the issue of harm. In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). This alleged offense represents the culmination of a four year feud between the complainant and appellant. These two young women had been involved in numerous altercations, both physical and verbal. The State=s theory of prosecution was that appellant was still angry over the complainant=s past relationship with appellant=s husband. The only witness to the alleged offense was Rodriguez, a close friend and ally of the complainant. We do not find this to be overwhelming evidence of guilt. Motilla, supra. Appellant=s defensive theories were that she was either being framed by the complainant, or that someone else had damaged the complainant=s vehicle. Officer Lopez supported the first theory by testifying the complainant and Rodriguez were Ahappy . . . that they had got [appellant].@ Appellant=s husband supported the second theory by testifying the complainant=s vehicle had been keyed three years before. Both defensive theories were supported by the character testimony of Dixon that the complainant=s reputation for being peaceful and truthful was bad. Similarly, the testimony of Anderson would have advanced both defensive theories. In light of particular facts of this case and the long-standing animosity between the parties, we cannot say the error had no influence or only a slight influence on the verdict. Therefore, we must treat the error as harmful. Accordingly, we sustain appellant=s sole point of error. The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion. CHARLES F. BAIRD Justice Publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 10th day of October, 2002. [1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998). [2] When the State prosecutes an appeal pursuant to article 44.01 of the Code of Criminal Procedure but does not file a brief, appellate courts hold the State's failure to file a brief constitutes abandonment of the appeal. State v. Palacios, 968 S.W.2d 467, 468 (Tex. App.BFort Worth 1998, no pet.); State v. Crawford, 807 S.W.2d 892, 893 (Tex. App.BHouston [1st Dist.] 1991, no pet.); State v. Sanchez, 764 S.W.2d 920, 921 (Tex. App.BAustin 1989, no pet.). [3] As noted in part I, supra, Dixon testified the complainant=s reputation for peacefulness and truthfulness was bad. [4] On several occasions, the State argued Anderson=s testimony must be based upon personal knowledge. The trial judge seemed to accept this argument. But personal knowledge is not required for reputation testimony. Jackson v. State, 628 S.W.2d 446, 450 (Tex. Crim. App. 1982). Instead, such testimony may be based either on (1) discussions between the witness and others about the defendant; or (2) information overheard by the witness during conversations by others who discussed the defendant's reputation. Id. | ||
Showing posts with label Fraudulent Opinion. Show all posts
Showing posts with label Fraudulent Opinion. Show all posts
Tuesday, September 23, 2008
appellate courts hold the State's failure to file a brief constitutes abandonment of the appeal. State v. Palacios, 968 S.W.2d 467, 468 (Tex. App.BFo
Friday, June 27, 2008
Predict the future ................of what would have been.~~~~~~ U Know i Know
herefore, in the context of this ineffective assistance of counsel claim, the record must demonstrate what the testimony of Cano would have been.
Oh again I am supposed to be a clairvoyant?
What would have been?
In the context, therefore I must state what the testimony of some state of texas absconder and obstruct justice twisted sister "the record must demonstrate what the testimony of Cano would have been."
if it was against me then the state should have welcomed Mary Cano's testimony?
Truth? I dared y'all to get her there but obviously she was put on ICE.
I guess cheating and lying to TWIST and demonstrate justice and fairness.
But that is demonstrative of prosecutor's misconduct and malicious intent to conduct an unfair proceeding.
I see ..........
http://423judicialdistrict.blogspot.com/2007/06/malum-prohibitumpublic-welfare-offenses.html
Oh again I am supposed to be a clairvoyant?
What would have been?
In the context, therefore I must state what the testimony of some state of texas absconder and obstruct justice twisted sister "the record must demonstrate what the testimony of Cano would have been."
if it was against me then the state should have welcomed Mary Cano's testimony?
Truth? I dared y'all to get her there but obviously she was put on ICE.
I guess cheating and lying to TWIST and demonstrate justice and fairness.
But that is demonstrative of prosecutor's misconduct and malicious intent to conduct an unfair proceeding.
I see ..........
http://423judicialdistrict.blogspot.com/2007/06/malum-prohibitumpublic-welfare-offenses.html
Monday, May 26, 2008
Because the trial court's findings are supported by the record, we accept them as correct.......It is easier than recognizing due process rights ...
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NUMBER 13-02-00218-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALEJANDRO RODRIGUEZ MATA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 275th District Court of Hidalgo County, Texas.
OPINION ON REMAND
Before Justices Yañez, Rodriguez, and Wittig (1)
Opinion on remand by Justice Wittig
On direct appeal, this Court reversed and remanded for a new trial on the issue of punishment; however, the court of criminal appeals reversed our decision and remanded the case to this Court for consideration of appellant's remaining issues. Mata v. State, 141 S.W.3d 858 (Tex. App.-Corpus Christi, 2004), rev'd, 226 S.W.3d 425, 433 (Tex. Crim. App. 2007). Issues one through seven and ten have already been adressed in our prior opinion. See generally Mata, 141 S.W.3d at 426-33. We now address the remaining issues.
Ineffective Counsel
In his eighth and ninth issues, appellant argues that his trial counsel was ineffective for not objecting to the punishment charge because it violated the government code and the due process clause. In his eleventh issue, he charges counsel was ineffective for not objecting to the State's argument to consider parole eligibility in imposing a sentence.
Review of an ineffective assistance of counsel claim is conducted under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The first requirement under Strickland states: "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The second requirement sets out the general requirement that the defendant affirmatively prove prejudice, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694.
In his eighth and ninth issues, appellant argues counsel was ineffective for not objecting to the punishment charge. We address the allegations of error concerning the charge itself in issue twelve below.
In the charge, the trial court inserted superfluous language. The charge stated:
Under the law applicable in this case, the Defendant, if sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-half of the sentence imposed, or 30 years, whichever is less, without consideration of any good conduct time he may earn.
The court's charge included the following additional, non-statutory language: "plus any good conduct time earned." However, the charge also instructed the jury not to consider the manner in which the parole law might be applied to the defendant and was otherwise substantially correct. We also observe there was no evidence the jury was confused about the instructions in the charge.
Even if we were to assume error, the record is silent as to why counsel did not object. When the record is silent as to defense counsel's rationale or strategy, appellant fails to overcome the presumption that trial counsel's decision was reasonable. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); see also Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). "Experience has taught us that in most instances a reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim." Thompson, 9 S.W.3d at 813-14. "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Mallett, 65 S.W.3d at 63. To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.2d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).
The record shows that appellant presented no evidence that overcomes the presumption that trial counsel's decision not to object was reasonable. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.2d at 813. We overrule appellant's eighth and ninth issues.
In his eleventh issue, appellant charges counsel was ineffective for not objecting to the State's argument to consider parole eligibility in imposing a sentence because it violated due process. He cites Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987) (stating that an exception to the general rule requiring an objection to preserve error, is that improper argument may present a Fourteenth Amendment due process claim if the prosecutor's argument so infected the trial with unfairness as to make the resulting conviction a denial of due process). Appellant made virtually the same ineffective assistance argument in his tenth issue, contending there that the charge violated the Texas Code of Criminal Procedure rather than due process. The Texas Court of Criminal Appeals has already addressed this parallel issue in part. It held:
First, on our review of the record, the prosecutor's statement to the jury that a person convicted of murder "can get good time credit" is not so clearly a misstatement of the law as the Court of Appeals claimed. A defendant convicted of murder is neither more nor less eligible to receive good conduct time credit during his or her sentence. The only criteria for determining an inmate's eligibility to receive good time are his classification by the Texas Department of Criminal Justice and his conduct while incarcerated. The statutory instruction at issue here serves only to inform the jury of the limitations imposed upon the convicted person's ability to have his or her accrued good conduct time considered by a parole board in determining whether he should be eligible for release. It explicitly states that, whatever good conduct time the defendant may receive during his incarceration, no amount of good conduct time accrued will be calculated as part of his time served until he has served a sufficient amount of actual time. It also informs the jury that such decisions are exclusively the province of the prison and parole board. Thus, it was not a misstatement of law for the State to tell the jury that the appellant could "get good time credit," even if the State omitted the statutory condition under which his good time credit could be considered by a parole board.
Mata, 226 S.W.3d at 431.
In reversing our prior opinion, on this related issue, the court of criminal appeals held that, although we had found there to be no conceivable reason for trial counsel to have failed to object to the State's improper argument, the fact remained that the appellate record was silent as to why trial counsel failed to so object. "Therefore, the appellant has failed to rebut the presumption that trial counsel's decision was in some way -- be it conceivable or not -- reasonable." Id.
Appellant also argues that the State clearly referred to the pen packet during the punishment phase during its argument. However, the State's intention in doing so was just as likely for the proper purpose of informing the jury that parole and good conduct time do exist in Texas. Id. at 432. The existence of such laws may be considered as part of assessing punishment even if the operation of those laws may not. Id. "The appellant's pen packet was merely a simple and available example for the jury to understand that parole laws apply to all incarcerated persons, including the appellant." Id. The record demonstrates that the appellant's pen packet was not introduced as "evidence on the operation of parole and good conduct laws," as prohibited by the statute. Id. Rather, the pen packet had been introduced into evidence during the punishment phase to prove the alleged enhancing factors of the appellant's prior crimes. Id. "At the very least, it is not clear that the State's reference to the appellant's pen packet in this instance necessitated an objection by appellant's trial counsel." Id. at 433.
Because the law of the case has already disposed of the underpinnings of appellant's due process claims, appellant's due process argument must fail. See Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999) (stating that an appellate court's resolution of a question in a previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal). In any event, we hold that appellant presented no evidence in the record that overcomes the presumption that trial counsel's decision not to object was reasonable. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.2d at 813; Mata 226 S.W.3d at 433. We overrule appellant's eleventh issue.
Jury Charge
By his twelfth issue, appellant charges that the trial court erred in failing to submit the law applicable to the case to the jury. The Texas Code of Criminal Procedure provides that in a specified felony case, the court "shall" charge the jury (inter alia) that:
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn.
See Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a) (Vernon 2006). The actual charge given stated:
Under the law applicable in this case, the Defendant, if sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-half of the sentence imposed, or 30 years, whichever is less, without consideration of any good conduct time he may earn.
(Emphasis added). The trial court properly instructed the other four paragraphs under section 4(a). Id.
Appellant cites Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (stating that a statutorily defined word or phrase must be included in the charge as part of the "law applicable to the case"), and argues that the trial court sua sponte must submit the correct law applicable. We agree. However, in Huizar, the trial court failed to instruct that extraneous offenses need be proved beyond a reasonable doubt. Id. Further, Huizar held that such error was purely "charge error" under article 36.19 and did not implicate constitutional rights. Id. Rather, the rule in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g), is applied in the harm analysis. Huizar is distinguishable because here, the trial court did give the statutorily required language. See Huizar, 12 S.W.3d at 483 (noting that disregard of a statutory provision referenced in article 36.19 is the type of omission that does not require a timely request or objection by a party).
Appellant also cites Luquis v. State, 72 S.W.3d 355, 366-67 (Tex. Crim. App. 2002), which holds that the court will not find federal constitutional error unless it concludes that a reasonable jury probably was actually confused by this charge or that there was a reasonable probability that it did mislead the jury. Id. Appellant argues that the court's instruction was a plain misstatement of the law. According to appellant, the error was exacerbated because of the final argument of the State.
The State counters that the addition of this superfluous phrase was isolated clerical error that does not require reversal, citing Lozano v. State, 676 S.W.2d 433, 436-37 (Tex. App.-San Antonio, 1984, no pet.) (providing that an inadvertent or clerical error in an instruction does not require reversal of a conviction where the charge as a whole correctly applies the law to the facts).
The instruction and sentence in question was designed to provide the jury with some background instruction about parole. The same segment of the charge also specifically warned the jury not to attempt to calculate good time credit and parole law. Because the jury was also instructed not to apply any good time, the extraneous phrase did not affect the overall meaning of the parole instruction. Unlike Huizar, the trial court did not completely fail to instruct the jury about the burden of proof concerning extraneous offenses. Huizar, 12 S.W.3d at 484.
Under Almanza, omission of an unrequested jury instruction applicable to the case calls for a new trial only when the defendant was greatly disadvantaged. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). This degree of harm, sufficiently serious to be called "egregious," is present whenever a reviewing court finds that the case for conviction or punishment was actually made clearly and significantly more persuasive by the error. Id.
The function of the jury charge is to instruct the jury on applying the law to the facts. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). "[A]n erroneous or an incomplete jury charge jeopardizes a defendant's right to jury trial because it fails to properly guide the jury in its fact-finding function." Id. "An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction." Id. Instead, article 36.19 of the Texas Code of Criminal Procedure outlines the path this Court should follow to review error in the charge: "[F]irst, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal." Id. at 731-32. Where the error is urged for the first time on appeal, a reviewing court will search for "egregious harm." Almanza, 686 S.W.2d at 171. "Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive." Blumenstetter v. State, 135 S.W.3d 234, 240 (Tex. App.-Texarkana 2004, no pet.). The degree of harm demonstrated by the appellant must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174; Taylor v. State, 146 S.W.3d 801, 804 (Tex. App.-Texarkana 2004, pet. ref d).
In Newman, our sister court addressed a similar situation. There, the crucial difference between the statutory charge and that provided to the jury resulted in the jury being incorrectly informed that good conduct time would be considered in calculating the one-half of the sentence Newman would be required to serve before being eligible for parole. Newman v. State, 49 S.W.3d 577, 581 (Tex. App.-Beaumont 2001, pet ref'd). As in Newman, appellant did not object to the charge, and thus, we may reverse the judgment only if the harm was so egregious that the accused did not have a fair and impartial trial. Almanza, 686 S.W.2d at 171. "The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id.
We conclude there is no egregious harm for several reasons: 1) the charge instructed the jury not to consider the manner in which the parole law might be applied to the defendant; 2) there was no evidence the jury was confused about the instructions in the charge; 3) no motion for new trial was filed; 4) nothing in the record suggests the jury discussed, considered, or tried to apply good conduct time or the parole law in assessing punishment; 5) there was substantial evidence of guilt; and 6) the jury assessed punishment at less than the maximum sentence. See id. "[T]he instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." Estelle v. McGuire, 502 U.S. 62, 72 (1991). Appellant likewise has not shown there is a "reasonable likelihood" that the jury applied the superfluous instruction in a way violative of the constitution. Id. Accordingly, we overrule this issue.
Reporter's Record
In his thirteenth issue, appellant maintains he is entitled to a new trial because part of the reporter's record is lost. Appellant requested the reporter's record for "events" of September 24, October 15, and November 6, 2001. No such records were produced, and thus appellant argues the records are "missing." Because of these complaints, we abated this appeal and remanded to the trial court to determine the status of the record.
At the hearing, the court reporter testified she had no notes or transcript pertaining to this case for September 24, October 15, or November 6, 2001. The trial court found in his May 20, 2003, order that "the current appellate record contains all proceedings which had occurred on the record during this case." The docket entry of September 24 simply indicated the case was reset for trial to October 15, 2001. The October 15 docket entry indicated a hearing in which both sides announced ready and a motion to withdraw was heard and denied. Also, the case was reset for trial November 15, 2001.
The evidence does not indicate anything occurred on the record at the October 15th hearing, i.e., the reporter took no notes at the hearing. The docket entries for November 6, 2001, indicated both sides appeared and the case was reset for trial December 3, 2001. Jury selection was set for 9 a.m. that day.
On October 31, 2001, the State filed a Motion for Leave of Court to Amend Indictment, seeking to change the last name of the victim from Munoz to Muniz. The proposed order accompanying the motion is unsigned. The indictment itself is not amended. The State submitted that it never urged its motion to amend.
The trial court concluded the reporter's record on file is complete. It also concluded that, even assuming other proceedings occurred on the pertinent dates, no such materials would be necessary for the resolution of the appeal.
Appellant contends that the missing record of October 15, 2001, prohibits him from showing the trial court erred by not allowing defense counsel to withdraw and that he was denied the right to effective assistance of counsel. The written motion to withdraw stated appellant no longer wished counsel to represent him and wished to seek advice and representation of other counsel. The motion was not reurged after its denial.
An appellant seeking to reverse a conviction on the basis of an incomplete record must show: (1) that a significant portion of the record was lost or destroyed, (2) through no fault of her own, (3) that the missing portion of the record is necessary to her appeal, and (4) the parties cannot agree on the record. Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003); see Tex. R. App. P. 34.6(f). As a threshold matter, the trial court in its fact-finding capacity found that the "current appellate record contains all proceedings which had occurred on the record . . . ." Appellant's trial counsel testified she thought her motion to withdraw was presented in open court. She stated the basis of the motion was that she could not communicate with her client. "We were not on the same level as far as the presentation of the case." In response to a leading question, she indicated the motion was heard on the record. Yet, in answer to the next question, defense counsel stated: "It was on the record, I'd assume." Defense counsel also had no recollection of the State's motion to amend the indictment. The court reporter testified there was no record taken. Although defense counsel said she assumed there was a record made, she could not recall other factors now asserted by appellant concerning the motion to amend the indictment.
In Amezquita, the court of criminal appeals reiterated the observation that "[v]irtually every fact finding involves a credibility determination" and that it has repeatedly recognized that the fact finder is the exclusive judge of the credibility of the witnesses. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (citing Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996)). In this case, the appellate record clearly supports and confirms the trial court's findings of fact. Because the trial court's findings are supported by the record, we accept them as correct. Ex parte Kimes, 872 S.W.2d 700, 701 (Tex. Crim. App. 1993). Accepting the findings as true, we can only conclude that a significant portion of the record was not lost or destroyed. We overrule this issue.
Juror Lopez
In his fourteenth issue, appellant argues his trial counsel was ineffective because she did not challenge juror Lopez for cause. During general voir dire, the venire was asked if they would expect or want to hear from Mata, as for instance, a parent might want to hear from his or her children when one child says that the other child hit him first. In other words, in order to make a fair decision, do you need to hear from that person? Several jurors, including Lopez, responded in the affirmative. At the later bench conference, Lopez was informed that the law says if appellant did not testify, "that you can [not] hold that against him." Lopez replied she could follow the instruction of the court. This was reconfirmed that Mata did not have to testify and the juror would not hold it against him. Lopez said:
Yes, I think so. Only reason I said that was that how one witness or friend, say friends are there time, place and they would-one way would say it one way and one would say it the other one. And if I was to prove something that I didn't do I think I would want people to hear. That's what I meant, hear from me. Not that getting the stories mixed up.
When asked if the appellant should take the stand and testify if he did not do anything wrong, Lopez responded "No."
Appellant argues that when a prospective juror is shown to be biased as a matter of law, she must be excused when challenged, citing Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim. App. 1982) ( when a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states that he can set his bias aside and provide a fair trial). Anderson also informs us that bias exists as a matter of law when a prospective juror admits that he is biased for or against a defendant. Id. The State argues, and we agree, that Lopez was not shown to be biased and therefore could not have properly been successfully challenged for cause.
Lopez initially indicated in response to a vague and rambling hypothetical, that she would like to hear from the defendant. She explained that if friends were in a disagreement, she would like them to hear from her. She also stated she could follow the court's instruction and would not require the defendant to testify. The State cites a similar case of initial confusion by a juror, Barefoot v. State, 596 S.W.2d 875, 883 (Tex. Crim. App. 1980). In that case, it was obvious that the juror was initially confused as to the relationship between appellant's right to remain silent and his right to effective assistance of counsel. Id. Subsequent questioning by both the prosecuting attorney and defense counsel made it clear that the juror did not expect appellant to testify or present other evidence, but only that his attorneys would do their best on his behalf. Id. In Barefoot, the trial court did not err by overruling the challenge for cause. Id. Similarly, a hypothetical objection by defense counsel would not have produced error had the trial court overruled a challenge for cause. See id.
Because appellant does not demonstrate that trial defense counsel's performance fell outside the boundaries of reasonable professional assistance, he fails to meet the first prong of Strickland. See Strickland, 466 U.S. at 687-88; Hernandez, 988 S.W.2d at 770. Furthermore, because the record is silent as to why counsel did not object, appellant fails to overcome the presumption that trial counsel's decision was reasonable. Rylander, 101 S.W.3d at 110. We overrule this issue.
The judgment of the trial court is affirmed.
DON WITTIG,
Justice
Do not publish.
Tex.R.App.P. 47.2(b)
Opinion on remand delivered and
filed this the 22nd day of May, 2008.
1. Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005).
NUMBER 13-02-00218-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALEJANDRO RODRIGUEZ MATA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 275th District Court of Hidalgo County, Texas.
OPINION ON REMAND
Before Justices Yañez, Rodriguez, and Wittig (1)
Opinion on remand by Justice Wittig
On direct appeal, this Court reversed and remanded for a new trial on the issue of punishment; however, the court of criminal appeals reversed our decision and remanded the case to this Court for consideration of appellant's remaining issues. Mata v. State, 141 S.W.3d 858 (Tex. App.-Corpus Christi, 2004), rev'd, 226 S.W.3d 425, 433 (Tex. Crim. App. 2007). Issues one through seven and ten have already been adressed in our prior opinion. See generally Mata, 141 S.W.3d at 426-33. We now address the remaining issues.
Ineffective Counsel
In his eighth and ninth issues, appellant argues that his trial counsel was ineffective for not objecting to the punishment charge because it violated the government code and the due process clause. In his eleventh issue, he charges counsel was ineffective for not objecting to the State's argument to consider parole eligibility in imposing a sentence.
Review of an ineffective assistance of counsel claim is conducted under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The first requirement under Strickland states: "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The second requirement sets out the general requirement that the defendant affirmatively prove prejudice, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694.
In his eighth and ninth issues, appellant argues counsel was ineffective for not objecting to the punishment charge. We address the allegations of error concerning the charge itself in issue twelve below.
In the charge, the trial court inserted superfluous language. The charge stated:
Under the law applicable in this case, the Defendant, if sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-half of the sentence imposed, or 30 years, whichever is less, without consideration of any good conduct time he may earn.
The court's charge included the following additional, non-statutory language: "plus any good conduct time earned." However, the charge also instructed the jury not to consider the manner in which the parole law might be applied to the defendant and was otherwise substantially correct. We also observe there was no evidence the jury was confused about the instructions in the charge.
Even if we were to assume error, the record is silent as to why counsel did not object. When the record is silent as to defense counsel's rationale or strategy, appellant fails to overcome the presumption that trial counsel's decision was reasonable. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); see also Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). "Experience has taught us that in most instances a reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim." Thompson, 9 S.W.3d at 813-14. "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Mallett, 65 S.W.3d at 63. To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.2d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).
The record shows that appellant presented no evidence that overcomes the presumption that trial counsel's decision not to object was reasonable. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.2d at 813. We overrule appellant's eighth and ninth issues.
In his eleventh issue, appellant charges counsel was ineffective for not objecting to the State's argument to consider parole eligibility in imposing a sentence because it violated due process. He cites Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987) (stating that an exception to the general rule requiring an objection to preserve error, is that improper argument may present a Fourteenth Amendment due process claim if the prosecutor's argument so infected the trial with unfairness as to make the resulting conviction a denial of due process). Appellant made virtually the same ineffective assistance argument in his tenth issue, contending there that the charge violated the Texas Code of Criminal Procedure rather than due process. The Texas Court of Criminal Appeals has already addressed this parallel issue in part. It held:
First, on our review of the record, the prosecutor's statement to the jury that a person convicted of murder "can get good time credit" is not so clearly a misstatement of the law as the Court of Appeals claimed. A defendant convicted of murder is neither more nor less eligible to receive good conduct time credit during his or her sentence. The only criteria for determining an inmate's eligibility to receive good time are his classification by the Texas Department of Criminal Justice and his conduct while incarcerated. The statutory instruction at issue here serves only to inform the jury of the limitations imposed upon the convicted person's ability to have his or her accrued good conduct time considered by a parole board in determining whether he should be eligible for release. It explicitly states that, whatever good conduct time the defendant may receive during his incarceration, no amount of good conduct time accrued will be calculated as part of his time served until he has served a sufficient amount of actual time. It also informs the jury that such decisions are exclusively the province of the prison and parole board. Thus, it was not a misstatement of law for the State to tell the jury that the appellant could "get good time credit," even if the State omitted the statutory condition under which his good time credit could be considered by a parole board.
Mata, 226 S.W.3d at 431.
In reversing our prior opinion, on this related issue, the court of criminal appeals held that, although we had found there to be no conceivable reason for trial counsel to have failed to object to the State's improper argument, the fact remained that the appellate record was silent as to why trial counsel failed to so object. "Therefore, the appellant has failed to rebut the presumption that trial counsel's decision was in some way -- be it conceivable or not -- reasonable." Id.
Appellant also argues that the State clearly referred to the pen packet during the punishment phase during its argument. However, the State's intention in doing so was just as likely for the proper purpose of informing the jury that parole and good conduct time do exist in Texas. Id. at 432. The existence of such laws may be considered as part of assessing punishment even if the operation of those laws may not. Id. "The appellant's pen packet was merely a simple and available example for the jury to understand that parole laws apply to all incarcerated persons, including the appellant." Id. The record demonstrates that the appellant's pen packet was not introduced as "evidence on the operation of parole and good conduct laws," as prohibited by the statute. Id. Rather, the pen packet had been introduced into evidence during the punishment phase to prove the alleged enhancing factors of the appellant's prior crimes. Id. "At the very least, it is not clear that the State's reference to the appellant's pen packet in this instance necessitated an objection by appellant's trial counsel." Id. at 433.
Because the law of the case has already disposed of the underpinnings of appellant's due process claims, appellant's due process argument must fail. See Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999) (stating that an appellate court's resolution of a question in a previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal). In any event, we hold that appellant presented no evidence in the record that overcomes the presumption that trial counsel's decision not to object was reasonable. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.2d at 813; Mata 226 S.W.3d at 433. We overrule appellant's eleventh issue.
Jury Charge
By his twelfth issue, appellant charges that the trial court erred in failing to submit the law applicable to the case to the jury. The Texas Code of Criminal Procedure provides that in a specified felony case, the court "shall" charge the jury (inter alia) that:
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn.
See Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a) (Vernon 2006). The actual charge given stated:
Under the law applicable in this case, the Defendant, if sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-half of the sentence imposed, or 30 years, whichever is less, without consideration of any good conduct time he may earn.
(Emphasis added). The trial court properly instructed the other four paragraphs under section 4(a). Id.
Appellant cites Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (stating that a statutorily defined word or phrase must be included in the charge as part of the "law applicable to the case"), and argues that the trial court sua sponte must submit the correct law applicable. We agree. However, in Huizar, the trial court failed to instruct that extraneous offenses need be proved beyond a reasonable doubt. Id. Further, Huizar held that such error was purely "charge error" under article 36.19 and did not implicate constitutional rights. Id. Rather, the rule in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g), is applied in the harm analysis. Huizar is distinguishable because here, the trial court did give the statutorily required language. See Huizar, 12 S.W.3d at 483 (noting that disregard of a statutory provision referenced in article 36.19 is the type of omission that does not require a timely request or objection by a party).
Appellant also cites Luquis v. State, 72 S.W.3d 355, 366-67 (Tex. Crim. App. 2002), which holds that the court will not find federal constitutional error unless it concludes that a reasonable jury probably was actually confused by this charge or that there was a reasonable probability that it did mislead the jury. Id. Appellant argues that the court's instruction was a plain misstatement of the law. According to appellant, the error was exacerbated because of the final argument of the State.
The State counters that the addition of this superfluous phrase was isolated clerical error that does not require reversal, citing Lozano v. State, 676 S.W.2d 433, 436-37 (Tex. App.-San Antonio, 1984, no pet.) (providing that an inadvertent or clerical error in an instruction does not require reversal of a conviction where the charge as a whole correctly applies the law to the facts).
The instruction and sentence in question was designed to provide the jury with some background instruction about parole. The same segment of the charge also specifically warned the jury not to attempt to calculate good time credit and parole law. Because the jury was also instructed not to apply any good time, the extraneous phrase did not affect the overall meaning of the parole instruction. Unlike Huizar, the trial court did not completely fail to instruct the jury about the burden of proof concerning extraneous offenses. Huizar, 12 S.W.3d at 484.
Under Almanza, omission of an unrequested jury instruction applicable to the case calls for a new trial only when the defendant was greatly disadvantaged. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). This degree of harm, sufficiently serious to be called "egregious," is present whenever a reviewing court finds that the case for conviction or punishment was actually made clearly and significantly more persuasive by the error. Id.
The function of the jury charge is to instruct the jury on applying the law to the facts. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). "[A]n erroneous or an incomplete jury charge jeopardizes a defendant's right to jury trial because it fails to properly guide the jury in its fact-finding function." Id. "An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction." Id. Instead, article 36.19 of the Texas Code of Criminal Procedure outlines the path this Court should follow to review error in the charge: "[F]irst, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal." Id. at 731-32. Where the error is urged for the first time on appeal, a reviewing court will search for "egregious harm." Almanza, 686 S.W.2d at 171. "Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive." Blumenstetter v. State, 135 S.W.3d 234, 240 (Tex. App.-Texarkana 2004, no pet.). The degree of harm demonstrated by the appellant must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174; Taylor v. State, 146 S.W.3d 801, 804 (Tex. App.-Texarkana 2004, pet. ref d).
In Newman, our sister court addressed a similar situation. There, the crucial difference between the statutory charge and that provided to the jury resulted in the jury being incorrectly informed that good conduct time would be considered in calculating the one-half of the sentence Newman would be required to serve before being eligible for parole. Newman v. State, 49 S.W.3d 577, 581 (Tex. App.-Beaumont 2001, pet ref'd). As in Newman, appellant did not object to the charge, and thus, we may reverse the judgment only if the harm was so egregious that the accused did not have a fair and impartial trial. Almanza, 686 S.W.2d at 171. "The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id.
We conclude there is no egregious harm for several reasons: 1) the charge instructed the jury not to consider the manner in which the parole law might be applied to the defendant; 2) there was no evidence the jury was confused about the instructions in the charge; 3) no motion for new trial was filed; 4) nothing in the record suggests the jury discussed, considered, or tried to apply good conduct time or the parole law in assessing punishment; 5) there was substantial evidence of guilt; and 6) the jury assessed punishment at less than the maximum sentence. See id. "[T]he instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." Estelle v. McGuire, 502 U.S. 62, 72 (1991). Appellant likewise has not shown there is a "reasonable likelihood" that the jury applied the superfluous instruction in a way violative of the constitution. Id. Accordingly, we overrule this issue.
Reporter's Record
In his thirteenth issue, appellant maintains he is entitled to a new trial because part of the reporter's record is lost. Appellant requested the reporter's record for "events" of September 24, October 15, and November 6, 2001. No such records were produced, and thus appellant argues the records are "missing." Because of these complaints, we abated this appeal and remanded to the trial court to determine the status of the record.
At the hearing, the court reporter testified she had no notes or transcript pertaining to this case for September 24, October 15, or November 6, 2001. The trial court found in his May 20, 2003, order that "the current appellate record contains all proceedings which had occurred on the record during this case." The docket entry of September 24 simply indicated the case was reset for trial to October 15, 2001. The October 15 docket entry indicated a hearing in which both sides announced ready and a motion to withdraw was heard and denied. Also, the case was reset for trial November 15, 2001.
The evidence does not indicate anything occurred on the record at the October 15th hearing, i.e., the reporter took no notes at the hearing. The docket entries for November 6, 2001, indicated both sides appeared and the case was reset for trial December 3, 2001. Jury selection was set for 9 a.m. that day.
On October 31, 2001, the State filed a Motion for Leave of Court to Amend Indictment, seeking to change the last name of the victim from Munoz to Muniz. The proposed order accompanying the motion is unsigned. The indictment itself is not amended. The State submitted that it never urged its motion to amend.
The trial court concluded the reporter's record on file is complete. It also concluded that, even assuming other proceedings occurred on the pertinent dates, no such materials would be necessary for the resolution of the appeal.
Appellant contends that the missing record of October 15, 2001, prohibits him from showing the trial court erred by not allowing defense counsel to withdraw and that he was denied the right to effective assistance of counsel. The written motion to withdraw stated appellant no longer wished counsel to represent him and wished to seek advice and representation of other counsel. The motion was not reurged after its denial.
An appellant seeking to reverse a conviction on the basis of an incomplete record must show: (1) that a significant portion of the record was lost or destroyed, (2) through no fault of her own, (3) that the missing portion of the record is necessary to her appeal, and (4) the parties cannot agree on the record. Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003); see Tex. R. App. P. 34.6(f). As a threshold matter, the trial court in its fact-finding capacity found that the "current appellate record contains all proceedings which had occurred on the record . . . ." Appellant's trial counsel testified she thought her motion to withdraw was presented in open court. She stated the basis of the motion was that she could not communicate with her client. "We were not on the same level as far as the presentation of the case." In response to a leading question, she indicated the motion was heard on the record. Yet, in answer to the next question, defense counsel stated: "It was on the record, I'd assume." Defense counsel also had no recollection of the State's motion to amend the indictment. The court reporter testified there was no record taken. Although defense counsel said she assumed there was a record made, she could not recall other factors now asserted by appellant concerning the motion to amend the indictment.
In Amezquita, the court of criminal appeals reiterated the observation that "[v]irtually every fact finding involves a credibility determination" and that it has repeatedly recognized that the fact finder is the exclusive judge of the credibility of the witnesses. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (citing Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996)). In this case, the appellate record clearly supports and confirms the trial court's findings of fact. Because the trial court's findings are supported by the record, we accept them as correct. Ex parte Kimes, 872 S.W.2d 700, 701 (Tex. Crim. App. 1993). Accepting the findings as true, we can only conclude that a significant portion of the record was not lost or destroyed. We overrule this issue.
Juror Lopez
In his fourteenth issue, appellant argues his trial counsel was ineffective because she did not challenge juror Lopez for cause. During general voir dire, the venire was asked if they would expect or want to hear from Mata, as for instance, a parent might want to hear from his or her children when one child says that the other child hit him first. In other words, in order to make a fair decision, do you need to hear from that person? Several jurors, including Lopez, responded in the affirmative. At the later bench conference, Lopez was informed that the law says if appellant did not testify, "that you can [not] hold that against him." Lopez replied she could follow the instruction of the court. This was reconfirmed that Mata did not have to testify and the juror would not hold it against him. Lopez said:
Yes, I think so. Only reason I said that was that how one witness or friend, say friends are there time, place and they would-one way would say it one way and one would say it the other one. And if I was to prove something that I didn't do I think I would want people to hear. That's what I meant, hear from me. Not that getting the stories mixed up.
When asked if the appellant should take the stand and testify if he did not do anything wrong, Lopez responded "No."
Appellant argues that when a prospective juror is shown to be biased as a matter of law, she must be excused when challenged, citing Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim. App. 1982) ( when a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states that he can set his bias aside and provide a fair trial). Anderson also informs us that bias exists as a matter of law when a prospective juror admits that he is biased for or against a defendant. Id. The State argues, and we agree, that Lopez was not shown to be biased and therefore could not have properly been successfully challenged for cause.
Lopez initially indicated in response to a vague and rambling hypothetical, that she would like to hear from the defendant. She explained that if friends were in a disagreement, she would like them to hear from her. She also stated she could follow the court's instruction and would not require the defendant to testify. The State cites a similar case of initial confusion by a juror, Barefoot v. State, 596 S.W.2d 875, 883 (Tex. Crim. App. 1980). In that case, it was obvious that the juror was initially confused as to the relationship between appellant's right to remain silent and his right to effective assistance of counsel. Id. Subsequent questioning by both the prosecuting attorney and defense counsel made it clear that the juror did not expect appellant to testify or present other evidence, but only that his attorneys would do their best on his behalf. Id. In Barefoot, the trial court did not err by overruling the challenge for cause. Id. Similarly, a hypothetical objection by defense counsel would not have produced error had the trial court overruled a challenge for cause. See id.
Because appellant does not demonstrate that trial defense counsel's performance fell outside the boundaries of reasonable professional assistance, he fails to meet the first prong of Strickland. See Strickland, 466 U.S. at 687-88; Hernandez, 988 S.W.2d at 770. Furthermore, because the record is silent as to why counsel did not object, appellant fails to overcome the presumption that trial counsel's decision was reasonable. Rylander, 101 S.W.3d at 110. We overrule this issue.
The judgment of the trial court is affirmed.
DON WITTIG,
Justice
Do not publish.
Tex.R.App.P. 47.2(b)
Opinion on remand delivered and
filed this the 22nd day of May, 2008.
1. Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005).
Thursday, March 20, 2008
the Harvard-educated L.A. City Attorney, Rocky Delgadillo, who is best known for prosecuting famed Paris Hilton and publicly admitting that he misuse
The 10 WORST U.S. Prosecutors Named: Texas Leads List with Four
United States Attorney General, Alberto Gonzales, was selected as the worst prosecutor out of 10 in the nation in 2007 for his involvement in the firings of nine U.S. Attorneys and the politicization of the Justice Department. At a close second, Texas ex-prosecutor Terry D. McEachern, who is best known for seeking unlawful cocaine possession charges against the African-American community of Tulia, Texas, and withholding exculpatory evidence. Next selected, former North Carolina D.A. Michael Nifong, for the widely-publicized debacle in the rape prosecution of Duke Lacrosse players causing his disbarment for having engaged in dishonesty, fraud, and withholding exculpatory information.
While a prosecutor’s job is to seek justice, there have been numerous instances in U.S history where federal and state prosecutors have engaged in unethical conduct simply to secure a conviction where otherwise not possible if they had played “by the rules.” The “Ten Worst Prosecutors” list carefully researched and produced by the Bennett Law Firm (BLF) in Houston, Texas, features a handful of recent occurrences where federal and state prosecutors did not play “by the rules” with respect to evidence in criminal trials and ruined the lives of innocent people to further their own professional careers.
The BLF and the “Bad Prosecutor Blog” website (visit: http://bennettlawfirm. typepad.com/badprosecutors) chose to recognize the ten worst prosecutors in the United States in 2007 to bring about an open discussion of prevalent prosecutorial misconduct, and most importantly, to stress the importance of holding bad prosecutors accountable for their unlawful indiscretions. For over thirty years, the BLF has been involved in criminal, civil, and administrative investigation. BLF Attorney Robert S. “Bob” Bennett, a former federal prosecutor, has been qualified as an expert on prosecutorial abuse and prosecutorial recusal. Mr. Bennett has also published numerous articles and has given countless speeches on these topics.
Prosecutorial misconduct ranges from hiding, destroying, or tampering with evidence, case files or court records; failing to disclose exculpatory evidence; using false or misleading evidence during trial; to improper behavior during grand jury proceedings. The BLF’s “Ten Worst” list exposes the harsh reality that bad prosecutors are not always disciplined for such misconduct and, in most cases, continue practicing law without missing a beat. The BLF and the website strongly believe that the list will heighten public awareness and, in turn, help curb unjust prosecutions and deter future prosecutorial misconduct.
Other bad prosecutors selected for the BLF “Ten Worst” list include the likes of Louisiana Attorney General Charles Foti, Jr., Massachusetts Assistant U.S. Attorney Jeffrey Auerhahn, Georgia Prosecutor David McDade, Oklahoma D.A. Bill Peterson, L.A. City Attorney Rocky Delgadillo, and Texas licensed attorneys: Charles Sebesta and Randall W. Reynolds.
Foti’s persistence in attempting to prosecute a doctor and two nurses after hurricane Katrina and making extrajudicial statements surrounding their guilt have secured him a spot on the BLF’s “Ten Worst” list. Auerhahn’s blatant disregard for the constitutional rights of an innocent man which resulted in a 22 year sentence and 13 years behind bars before it was ever discovered has earned him a listing as well. McDade was selected for overzealously prosecuting a 17-year-old over oral sex with a consenting 15-year-old girl under an archaic loophole in Georgia law (which has now been abolished) and for distributing a video of the sexual encounter in violation of federal child pornography laws.
Texas prosecutor, Charles Sebesta, makes an appearance on the list for presenting false, misleading evidence and not disclosing an exculpatory confession during the murder prosecution of Anthony Graves which resulted in his conviction and being sent to death row for capital murder in 1994. Ward County D.A, Randall W. Reynolds, was selected for dragging his feet in response to reliable allegations of sexual abuse of inmates at the West Texas State School in Pyote, Texas, and delaying the prosecution of two accused prison guards for more than 2 years.
Also selected was prosecutor Bill Peterson for inspiring John Grisham to write a novel about his vigorous yet erroneous prosecution and conviction of Ron Williamson for capital murder in 1988 on weak physical evidence and jailhouse informants. Last, but certainly not least, the list includes the Harvard-educated L.A. City Attorney, Rocky Delgadillo, who is best known for prosecuting famed Paris Hilton and publicly admitting that he misused public resources by negligently allowing his accident-prone wife to use a city vehicle for personal errands resulting $1,200 of damage and then letting taxpayers foot the bill, all the while complaining about a two-tiered judicial system that gives “special treatment” to the privileged.
If you would like to obtain a copy of the BLF’s “Ten Worst Prosecutors” Article, please visit http://bennettlawfirm.typepad.com/badprosecutors or contact Scott Chauveaux at 713-225-6000; e-mail Schauveaux@bennettlawfirm.com. To contact BLF Attorney Bob Bennett, visit: www.bennettlawfirm.com or email Bbennett@bennettlawfirm.com.
United States Attorney General, Alberto Gonzales, was selected as the worst prosecutor out of 10 in the nation in 2007 for his involvement in the firings of nine U.S. Attorneys and the politicization of the Justice Department. At a close second, Texas ex-prosecutor Terry D. McEachern, who is best known for seeking unlawful cocaine possession charges against the African-American community of Tulia, Texas, and withholding exculpatory evidence. Next selected, former North Carolina D.A. Michael Nifong, for the widely-publicized debacle in the rape prosecution of Duke Lacrosse players causing his disbarment for having engaged in dishonesty, fraud, and withholding exculpatory information.
While a prosecutor’s job is to seek justice, there have been numerous instances in U.S history where federal and state prosecutors have engaged in unethical conduct simply to secure a conviction where otherwise not possible if they had played “by the rules.” The “Ten Worst Prosecutors” list carefully researched and produced by the Bennett Law Firm (BLF) in Houston, Texas, features a handful of recent occurrences where federal and state prosecutors did not play “by the rules” with respect to evidence in criminal trials and ruined the lives of innocent people to further their own professional careers.
The BLF and the “Bad Prosecutor Blog” website (visit: http://bennettlawfirm. typepad.com/badprosecutors) chose to recognize the ten worst prosecutors in the United States in 2007 to bring about an open discussion of prevalent prosecutorial misconduct, and most importantly, to stress the importance of holding bad prosecutors accountable for their unlawful indiscretions. For over thirty years, the BLF has been involved in criminal, civil, and administrative investigation. BLF Attorney Robert S. “Bob” Bennett, a former federal prosecutor, has been qualified as an expert on prosecutorial abuse and prosecutorial recusal. Mr. Bennett has also published numerous articles and has given countless speeches on these topics.
Prosecutorial misconduct ranges from hiding, destroying, or tampering with evidence, case files or court records; failing to disclose exculpatory evidence; using false or misleading evidence during trial; to improper behavior during grand jury proceedings. The BLF’s “Ten Worst” list exposes the harsh reality that bad prosecutors are not always disciplined for such misconduct and, in most cases, continue practicing law without missing a beat. The BLF and the website strongly believe that the list will heighten public awareness and, in turn, help curb unjust prosecutions and deter future prosecutorial misconduct.
Other bad prosecutors selected for the BLF “Ten Worst” list include the likes of Louisiana Attorney General Charles Foti, Jr., Massachusetts Assistant U.S. Attorney Jeffrey Auerhahn, Georgia Prosecutor David McDade, Oklahoma D.A. Bill Peterson, L.A. City Attorney Rocky Delgadillo, and Texas licensed attorneys: Charles Sebesta and Randall W. Reynolds.
Foti’s persistence in attempting to prosecute a doctor and two nurses after hurricane Katrina and making extrajudicial statements surrounding their guilt have secured him a spot on the BLF’s “Ten Worst” list. Auerhahn’s blatant disregard for the constitutional rights of an innocent man which resulted in a 22 year sentence and 13 years behind bars before it was ever discovered has earned him a listing as well. McDade was selected for overzealously prosecuting a 17-year-old over oral sex with a consenting 15-year-old girl under an archaic loophole in Georgia law (which has now been abolished) and for distributing a video of the sexual encounter in violation of federal child pornography laws.
Texas prosecutor, Charles Sebesta, makes an appearance on the list for presenting false, misleading evidence and not disclosing an exculpatory confession during the murder prosecution of Anthony Graves which resulted in his conviction and being sent to death row for capital murder in 1994. Ward County D.A, Randall W. Reynolds, was selected for dragging his feet in response to reliable allegations of sexual abuse of inmates at the West Texas State School in Pyote, Texas, and delaying the prosecution of two accused prison guards for more than 2 years.
Also selected was prosecutor Bill Peterson for inspiring John Grisham to write a novel about his vigorous yet erroneous prosecution and conviction of Ron Williamson for capital murder in 1988 on weak physical evidence and jailhouse informants. Last, but certainly not least, the list includes the Harvard-educated L.A. City Attorney, Rocky Delgadillo, who is best known for prosecuting famed Paris Hilton and publicly admitting that he misused public resources by negligently allowing his accident-prone wife to use a city vehicle for personal errands resulting $1,200 of damage and then letting taxpayers foot the bill, all the while complaining about a two-tiered judicial system that gives “special treatment” to the privileged.
If you would like to obtain a copy of the BLF’s “Ten Worst Prosecutors” Article, please visit http://bennettlawfirm.typepad.com/badprosecutors or contact Scott Chauveaux at 713-225-6000; e-mail Schauveaux@bennettlawfirm.com. To contact BLF Attorney Bob Bennett, visit: www.bennettlawfirm.com or email Bbennett@bennettlawfirm.com.
Friday, March 14, 2008
failure to object was “so outrageous that no competent attorney would have engaged in it.” but that would require "working harder"
NUMBER 13-02-218-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ALEJANDRO RODRIGUEZ MATA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 257th District Court of Hidalgo County, Texas.
O P I N I O N
Before Justices Yañez, Rodriguez and Baird Footnote
Opinion by Justice Baird
Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote
I. Self Defense and Defense of Third Person.
Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.
A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.
The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).
Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.
According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.
For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).
Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.
II. Ineffective Assistance of Counsel.
Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).
The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.
1.
The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”
We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.
2.
The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).
The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.
3.
The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.
4.
The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.
Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.
In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.
B. The Punishment Phase.
The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.
1. The Erroneous Instruction.
Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
See id. (emphasis added).
However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.
2. The Improper Argument.
After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:
The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.
For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.
So you know parole does exist in reality.
And so that will help you understand those issues.
(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.
The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).
Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.
Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).
Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).
Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.
In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.
Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.
Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.
In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.
The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).
_________________________
CHARLES BAIRD,
Justice
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 12th day of August, 2004.
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ALEJANDRO RODRIGUEZ MATA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 257th District Court of Hidalgo County, Texas.
O P I N I O N
Before Justices Yañez, Rodriguez and Baird Footnote
Opinion by Justice Baird
Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote
I. Self Defense and Defense of Third Person.
Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.
A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.
The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).
Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.
According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.
For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).
Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.
II. Ineffective Assistance of Counsel.
Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).
The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.
1.
The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”
We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.
2.
The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).
The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.
3.
The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.
4.
The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.
Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.
In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.
B. The Punishment Phase.
The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.
1. The Erroneous Instruction.
Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
See id. (emphasis added).
However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.
2. The Improper Argument.
After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:
The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.
For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.
So you know parole does exist in reality.
And so that will help you understand those issues.
(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.
The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).
Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.
Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).
Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).
Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.
In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.
Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.
Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.
In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.
The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).
_________________________
CHARLES BAIRD,
Justice
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 12th day of August, 2004.
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