Melancon v. State , 66 S.W.3d 375 ( 2002 )

MAJORITY OPINION ON REHEARING EN BANC.

RICHARD H. EDELMAN, Justice.

The State’s motion for rehearing en banc is granted, the majority and dissenting opinions issued in this case on September 21, 2000, are withdrawn, and the following majority, concurring and dissenting, and dissenting opinions are issued in their place.

Albert Joseph Melancon appeals his conviction for aggravated robbery¹ on the grounds that: (1) he was denied effective assistance of counsel; and (2) the trial court erred in (a) failing to sustain appellant’s objections or grant a mistrial with regard to the prosecutor’s closing arguments; and (b) its efforts to break the jury deadlock. We affirm.

Ineffective Assistance

The first four of appellant’s nine points of error contend that he received ineffective assistance of counsel because his trial counsel failed to: (1) subpoena an available alibi witness; (2) investigate the identity and availability of other witnesses who could corroborate appellant’s alibi; and (3) question other available witnesses who could possibly support appellant’s misiden-tification defense.

To prevail on a claim of ineffective assistance of counsel, an appellant must show, first, that counsel’s performance was deficient, i.e., it fell below an objective standard of reasonableness, and, second, that the appellant was prejudiced in that there is a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). To be sustained, an allegation of ineffective assistance of counsel must be firmly founded and affirmatively demonstrated in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996). In reviewing an ineffectiveness claim, a court need not determine whether counsel’s performance was deficient if it is easier to dispose of the challenge based on lack of prejudice. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

A defendant is not entitled to perfect or errorless counsel. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992). Moreover, in reviewing ineffectiveness claims, scrutiny of counsel’s performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong, 25 S.W.3d at 712. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Tong, 25 S.W.3d at 712. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel’s perspective at the time. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.²

A motion for new trial is a prerequisite to presenting a point of error on appeal where it is necessary to adduce facts not in the record. Tex.R.App. P. 21.2. A trial court’s ruling denying a defendant’s motion for new trial is reviewed for abuse of discretion. Salazar v. State, 38 S.W.3d 141,148 (Tex.Crim.App.2001).³

Failure to Subpoena Witness

During trial, appellant presented evidence of the defenses of alibi and misiden-tification through a single witness, appellant’s girlfriend, Ava Germany. Appellant claims his trial counsel was ineffective in failing to also subpoena Rita Hearn⁴ to corroborate Germany’s alibi testimony.

According to the testimony of appellant’s trial counsel at the motion for new trial hearing (the “hearing”), Hearn had agreed to testify on appellant’s behalf when trial counsel spoke with her the weekend before trial. At the time, counsel saw no reason to subpoena Hearn because, both times they spoke, she told him “very emphatically” that she would be at trial. To overcome any transportation obstacles, trial counsel arranged a taxicab to transport Hearn, Germany, and appellant’s mother to a location near counsel’s home from which counsel planned to drive them to the trial court. However, when the cab arrived at the designated location, Hearn was not in it. Despite considering her an important witness and being told that she was working at a restaurant that day, counsel made no further attempt to secure her presence at trial or to request a continuance because of her absence.

Granting appellant a new trial for trial counsel’s failure to subpoena Hearn would be justified, if at all, only if it were shown that Hearn’s testimony, i.e., if given at a new trial, could indeed be helpful to appellant.⁵ However, despite contending that Hearn was so important a witness that the failure to subpoena her at trial was ineffective assistance, appellant presented no affidavit from Hearn with his motion for new trial and offered no testimony from her at the hearing or otherwise. Instead, evidence of the content of the testimony Hearn could purportedly have provided was limited to defense counsel’s conclusory testimony at the hearing that “Miss Hearn, to a certain extent, corroborated Ava Germany’s testimony.” Although defense counsel also testified in the abstract at the hearing that he believed Hearn’s testimony would have helped the defense and that she was an important witness, he did not state, and the record of the hearing does not otherwise contain, a single fact to which Hearn could testify about the events in question (or even showing that Hearn was ever in a position to possess any relevant knowledge).⁶ Without a record reflecting what facts, if any, Hearn could have actually provided, prejudice from counsel’s failure to subpoena her was not shown by trial counsel’s global and unsubstantiated characterizations that Hearn, to an extent, corroborated Germany, or that Hearn’s testimony would have helped the defense.⁷ Therefore, the trial court did not abuse its discretion by denying appellant’s motion for new trial, and appellant’s first point of error is overruled.

Failure to Investigate and Call Other Witnesses

Appellant’s second point of error claims that he received ineffective assistance because his counsel failed to investigate the identity and availability of Michelle Driver, Tamala Driver, and Patrice Brock as alibi witnesses. Appellant’s trial counsel testified at the hearing that he was aware of these witnesses but his attempts to contact them were unsuccessful because they had moved from their previous residences and he had no leads on where they lived. Counsel further testified that he did not ask his investigator to locate these witnesses because he had no leads on them.

Because the record again contains no evidence of what testimony the alleged witnesses could have provided (not even defense counsel’s assessment of its value), it is not possible to determine whether the witnesses could have supplied facts that would have supported appellant’s position on his alibi defense or otherwise. Accordingly, appellant’s second point of error also fails to show harm and is overruled.

Appellant’s third point of error claims his trial counsel provided ineffective assistance by failing to call as a witness Kenneth Driver, who was present at trial because he had been subpoenaed by the prosecution. Although Driver did not testify at trial, he testified at the hearing that he was in the apartment during the robbery and clearly saw the two robbers, whose faces were mostly covered. However, Driver testified that he did not believe either robber was appellant because of their other physical differences from appellant, whom Driver described as his best friend.

Appellant’s trial counsel testified at the hearing that he had spoken to Driver at least three times and intended to elicit testimony from Driver but later made a conscious decision not to do so because: (1) the favorable testimony Driver could have provided came out through a police officer’s testimony; (2) Driver could have been cross-examined on the State’s theory that he was part of a conspiracy with appellant to commit the robbery; and (3) any favorable testimony Driver could have provided would have been undermined by cross-examination revealing that he had a prior felony conviction. In light of these considerations and the deference we must afford strategic decisions made by trial counsel, appellant’s third point of error does not demonstrate that the decision not to call Driver to testify fell below an objective standard of reasonableness. Accordingly, the third point of error is overruled.

Appellant’s fourth point of error contends that the foregoing conduct of his trial counsel, in the aggregate, deprived him of effective assistance of counsel. Although a number of errors can be found harmful in their cumulative effect, non-errors may not, in their cumulative effect, amount to error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App.1999). Because appellant has demonstrated no deficient performance by his trial counsel, there can be no cumulative error or harm. Accordingly, his fourth point of error is overruled.

Jury Argument

Appellant’s fifth point of error asserts that the trial court erred by overruling his objection and denying his request for a mistrial in response to the following argument by the prosecutor:

[Prosecutor]: [W]hat happened on that night is that Kenneth Driver was home alone with [Alicia Johnson], Kenneth Driver is the boyfriend of Tarauniqui’s sister. Of course, Tarau-niqui would mention something about her savings to her family members. Okay. Perhaps her sister let it slip one day that they were saving money.

[Defense counsel]: Excuse me, Your Honor, arguing outside the record.

THE COURT: Sustained.

[Defense counsel]: And ask that the jury be instructed to disregard.

THE COURT: Disregard the last comment.

[Prosecutor]: You can reasonably deduce whether or not the information about saving some money in the apartment ever got out of Tarauni-qui’s mouth to anyone else. You can reasonably deduce that once Kenneth Driver got that information, he decided he was going to want some of the money.

[Defense counsel]: I’m going to renew the objection about arguing outside the record.

THE COURT: Overruled.

[Prosecutor]: You can reasonably deduce that his friend here was told by Mr. Driver. They planned it....

Appellant complains on appeal that the foregoing argument, suggesting that there was a conspiracy between appellant and Driver, was “improper,” because it was outside the record. However, the only portion of the argument associating Driver with appellant, assuming that appellant was even the person to whom the prosecutor was referring as “his friend here,” was the final portion to which appellant failed to preserve a complaint by failing to object. The preceding portions of the argument implicate only Driver in the robbery, not appellant. Because appellant does not explain, and it is not otherwise apparent from the context, how those statements, even if outside the record, could have thus been adverse to appellant, this complaint affords no basis for relief.

Appellant also complains of the following portion of the prosecutor’s argument:

[Prosecutor]: This man thought, because he had his shirt over his head and because he was a neighbor, that that thirteen-year-old girl would never finger him. This man was wrong. The only issue here is a recognition.

And ladies and gentlemen, I’m telling you that that thirteen-year-old girl wouldn’t have any problems whatsoever seeing that man for a period of six or seven seconds.

[Defense counsel]: I’m going to object to the expression of his personal opinion by the prosecutor.

THE COURT: Sustained.

[Defense counsel]: Ask the jury be instructed to disregard.

THE COURT: Disregard counsel’s last comment.

[Defense counsel]: And move for a mistrial.

THE COURT: Be denied.

Appellant claims that this argument: (1) attributed a motive to him that was not supported either by direct testimony or a reasonable deduction from the evidence; (2) injected a new and harmful fact, i.e., motive, into the case; and (3) encouraged the jurors to base the credibility of the complaining witness’s identification of appellant on the prosecutor’s personal opinion that the girl was being truthful.

To the extent the robbers had shirts over their faces, which is undisputed, it is a reasonable inference that they did so to avoid being recognized or identified. Therefore, it is not apparent how the complained of argument introduced any new or unsupported motive to the case. Nor does this argument express a personal opinion by the prosecutor that the girl was being truthful, as appellant complains, but only that she had sufficient time to see the person she had identified as appellant. In any event, the foregoing argument is not of such a severe or flagrant nature that it’s effect could not be overcome by the instruction to disregard given by the trial court.⁸ Therefore, appellant’s fifth point of error is overruled.

Jury Deliberations

Appellant’s remaining points of error challenge the trial court’s actions during jury deliberations.

Requiring Deliberations to Continue

The jury deliberated in this case from 2:50 to 5:20 p.m. on February 11,1997, and from 9:00 a.m. to 2:00 p.m. on February 12, during which a lunch break and other breaks were taken. At about 11:00 a.m. on February 12, the jury sent the trial court a note stating:

We, the jury, cannot reach a unanimous verdict. We have studied the evidence and had very thorough discussions, and very open discussions and each juror firmly believes that additional discussions will not resolve the matter. We have taken numerous votes and each time there was a significant split in the vote. Discussions subsequent to requesting testimony have indicated that the [previously] requested testimony would not change anyone’s opinion.

The court thereafter said the following to the jury:

Relative to your note, if you don’t want the testimony read, then I certainly have no right to insist that you read it; however, I’m not going to, at this time, discharge this jury. As I told you yesterday — and I take the same position now — I don’t want anybody to be forced to do anything and I don’t want to do anything that violates anybody’s conscience. But on the other hand, I certainly — you need to reexamine your positions. And if you can reach a verdict, why, we want you to do that. As I told you, if you don’t do it, then I’ve got to send over for another panel, and we go through the same process again. There is going to be some jury somewhere down the line that’s going to make a determination of guilt or innocence in this case based upon the testimony.

Appellant’s sixth point of error contends that the trial judge abused his discretion by giving the above supplemental instruction to the jury urging them to reach a verdict. Appellant does not challenge the content of the instruction but complains only that giving any such instruction was unnecessary and coercive because the jury was willing and able to continue deliberating and attempting to reach a verdict on their own. However, because the jury’s note to the court conveyed precisely the opposite sentiment and had not been withdrawn by the jury, we do not agree with appellant that giving an instruction urging them to reach a verdict was unreasonable. Accordingly, appellant’s sixth point of error is overruled.

Appellant’s eighth point of error contends that the trial court abused its discretion by ordering the jury to continue deliberating after the jurors communicated their inability to reach a verdict.⁹ After a case is submitted to the jury, the court may, in its discretion, discharge the jury where it has been kept together for such time as to render it altogether improbable that it can agree. Tex.Cobe CRiM. PROC. Ann. art. 36.31 (Vernon 1981). However, there is no limit on the length of time a jury may deliberate. Guidry v. State, 9 S.W.3d 133, 155 (Tex.Crim.App.1999). Thus, reversal is mandated only if the record reveals that the trial court abused its discretion by holding the jury for deliberations. Jackson v. State, 17 S.W.3d 664, 676 (Tex.Crim.App.2000).

As noted above, the jury deliberated in this case for, at most, an elapsed time of 7.5 hours during which a lunch break and other breaks were taken. The only indication in the record of an impasse is the note (quoted above) that the jury sent to the trial judge at 11:00 a.m. on February 12. In reply to that note, the trial court gave the supplemental instruction quoted above. After taking a lunch break, the jury returned a verdict at 2:00 that afternoon.

Appellant has not cited a case in which a conviction has actually been reversed for requiring a jury to deliberate too long and thus illustrating circumstances in which a trial court’s conduct has been unreasonable in that regard. In this case, the length of time the jury spent deliberating was certainly not excessive in relation to the seriousness of the felony charge appellant was facing. Nor do the circumstances otherwise suggest that it was altogether improbable that the jury could agree when it reported its first and only deadlock after, at most, 4.5 hours of deliberations. Accordingly, appellant’s eighth point of error is overruled.

Soliciting Numerical Division

Appellant’s seventh point of error argues that the trial court erred in asking the jury, during their deliberations, how they were divided: “How do you stand? Twelve ... to two?.... Six to six, or nine to three, or eight to four? Not any particular for or against. But have you taken a vote?.... What’s the last vote?” The jury foreman replied, “We were pretty well split down the middle.”

Appellant contends that, under federal case law, the trial court’s asking the numerical division of the jury was coercive and thereby deprived appellant of a fair trial, particularly in the context of the subsequent jury deadlock and supplemental instruction, discussed above. See Brasfield v. United States, 272 U.S. 448, 449-50, 47 S.Ct. 135, 71 L.Ed. 345 (1926) (reversing conviction where trial judge inquired and was informed how jury was divided numerically, without indication of which number favored conviction, and despite that defense counsel made no objection). However, the Court of Criminal Appeals has expressly declined to follow such a contention:

Nevertheless, appellant insists the trial court committed error when it furnished the Allen charge while cognizant of the numerical division of the deadlocked jury. See United States v. Sae-Chua, 725 F.2d 530 (9th Cir.1984). In the instant case, in the period of deliberation prior to the Allen charge, the jury foreperson had informed the trial court [without being asked] of the numerical division of the jury. Appellant contends that under federal case law, the possession of such information makes an Allen charge coercive. Appellant’s reliance upon Sae-Chua is misplaced. In Sae-Chua the Ninth Circuit, citing [Brasfield ] found reversible error when the trial court polled a deadlocked jury regarding the likelihood further deliberations would have in achieving a verdict.... Brasfield created a prophylactic rule forbidding the federal trial courts from questioning their juries regarding numerical division. Id. However, such a prophylactic rule is based upon the U.S. Supreme Court’s exercise of supervisory powers and not upon any notion of constitutional infraction. Lowenfield v. Phelps, 484 U.S. at 239-249 n. 3, 108 S.Ct. 546,.... The prophylactic rule present in Brasfield and Sae-Chua, supra, simply has no application to this state proceeding or this Court’s holding.

We are mindful that in some contexts, a trial court might engender coercion by actively identifying jurors with minority viewpoints and tacitly instructing them to reexamine their perspectives.. However, in the case at bar, the trial court did not probe the jury or attempt to identify the minority jurors. The trial court’s information as to numeric division was an unsolicited and extraneous reference in a note from the jury. In this context we find the Allen charge to be noncoercive.

Howard v. State, 941 S.W.2d 102, 124 (Tex.Crim.App.1996). In light of Howard, the trial court’s inquiry into the jury’s numerical division, even if inappropriate, was not reversible error. Accordingly, appellant’s seventh point of error is overruled.

Cumulative Error

Appellant’s ninth point of error contends that the overall combination of the foregoing actions by the trial court during jury deliberations had a coercive effect on those deliberations and thereby deprived appellant of a fair trial. As noted previously, although a number of errors could be found harmful in their cumulative effect, non-errors may not, in their cumulative effect, produce error. Chamberlain, 998 S.W.2d at 238. Because appellant has demonstrated no error by the trial court, there can be no cumulative error or harm. Therefore, appellant’s ninth point of error is overruled, and the judgment of the trial court is affirmed.

Justices YATES, ANDERSON, HUDSON, FOWLER, and FROST join in the Majority Opinion.

Senior Justice WITTIG filed a Concurring and Dissenting Opinion.

Former Judge BAIRD filed a Dissenting Opinion, in which Senior Chief Justice MURPHY and Former Justice AMIDEI join.

1 . Appellant was convicted by a jury and sentenced by the trial court to ten years confinement.

2 . Thus, the presumption that an attorney's actions were sound trial strategy ordinarily cannot be overcome absent evidence in the record of the attorney's reasons for his conduct. Busby v. State, 990 S.W.2d 263, 268-69 (Tex.Crim.App.1999).

3 .Although appellant does not frame them as such, his points of error asserting ineffective assistance of counsel are, in effect, a challenge to the denial of his motion for new trial because the new trial proceeding is where the issue was presented to and ruled upon by the trial court and because appellant otherwise lacked a sufficient record to present that challenge for the first time on appeal.

4 . Hearn is referred to as both Rita and Rhoda Hearn in the trial record and as Rita Hearn in the briefs before us.

5 . See Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App.1986) ("Counsel’s failure to call such witnesses would be 'irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony.’ ”). The dissent relies in part on the affidavits of three jurors which speculate (in substantially identical language) that the outcome of the case would have been different if additional witnesses had been presented to corroborate appellant’s whereabouts at the time the robbery was committed and that appellant was harmed by his counsel’s failure to do so. Obviously, if any such corroborating testimony had been elicited from Hearn at the hearing, no such juror affidavits would have been necessary to establish its materiality-

6 .Appellant’s brief contains a statement that Hearn "had seen a group of young African American males who matched the complaining witness’s identification of the robbers enter the complaining witness’s apartment shortly before the robbery. Ms. Hearn’s observations corroborated Appellant’s girlfriend’s statement that this group did not include Appellant.” However, no citation to the record is provided with this statement, nor can we find any support in the record of the hearing for it.

Similarly, footnote 3 of our former majority opinion in this case states, in part, "Trial counsel testified without objection and related the substance of his interviews with Hearn and what he expected her testimony would have been had she testified at trial.” Again, we find nothing in the record of the hearing remotely supporting this statement. The dissent would thus mandate a new trial on less of a showing than would even have been required to preserve error on the denial of a motion for continuance or writ of attachment. See Erwin v. State, 729 S.W.2d 709, 714 (Tex.Crim.App.1987) (noting that party requesting writ of attachment must show what the witness would have testified to); Hardin v. State, 471 S.W.2d 60, 62 (Tex.Crim.App.1971) (noting that defendant seeking continuance or attachment must offer a sworn statement saying what the witness would have testified to).

Although not mentioned in appellant’s brief, the dissent also cites passages from Germany’s trial testimony to show where Hearn had been located during the robbery such that she could corroborate appellant’s alibi. However, Germany testified at trial on February 11, 1998, and the hearing was conducted, and the motion denied, on April 27, 1998. Therefore, the dissent would, in effect, hold that the trial court abused its discretion by basing its denial of the motion for new trial solely on the evidence presented at the hearing and not also sua sponte reminding itself of and remembering remote details of Germany’s trial testimony which it had heard over ten weeks earlier during a four day trial and which were not even alluded to at the hearing. On the contraiy, it is neither the trial court’s role to search for additional evidence to support a party's motion for new trial, nor the appellate court’s role to search for additional arguments or evidence to support an appellant’s brief.

7 . This case is thus also distinguishable from those such as Butler, Everage, and Shelton, cited by appellant or the dissent, where evidence of the specific beneficial facts to which the absent witness could have testified was not only developed, but was provided by that witness (i.e., rather than someone else). See Butler, 716 S.W.2d at 51-52, 55-56; Everage v. State, 893 S.W.2d 219, 222 (Tex.App.—Houston [1st Dist.] 1995, pet. ref’d); Shelton v. State, 841 S.W.2d 526, 527 (Tex.App.—Fort Worth 1992, no pet.). Because it is not necessary to our disposition of this case, we do not address whether a new trial could ever be mandated due to a failure to present a witness where neither an affidavit nor testimony from that witness is provided to show what the witness would actually say if placed under oath. However, we note that no other witness is competent to testify about what an absent witness would actually testify if placed under oath (or cross-examined); and, thus, overturning the entire first trial and conducting a new one in such a case would risk that the .missing witness, when placed under oath, could provide no testimony favorable to the defense and that other witnesses who testified at the first trial might not again be available or be less able to remember important facts.

8 . See, e.g., Wesbrook v. State, 29 S.W.3d 103, 116 (Tex.Crim.App.2000) (holding that, where the jury has been instructed to disregard it, even a prosecutor’s comment inviting the jury to speculate on the existence of evidence not presented does not warrant reversal unless it is offensive or flagrant), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001).

9 . In that appellant’s sixth and eighth points of error take contrary positions as to whether the jury had indicated an inability to reach a verdict, we interpret these points as being presented in the alternative.