Elbert Jones v. State ( 2019 )

Affirmed and Opinion filed April 16, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00536-CR
ELBERT JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 16-CR-1973
OPINION
A jury convicted appellant, Elbert Jones, III, of family violence assault
enhanced with a prior conviction for family violence assault. See Tex. Penal Code
§ 22.01(b)(2). The State also alleged that appellant had been previously convicted
of two felony offenses. At the conclusion of the punishment phase of appellant’s
trial, the trial court found the two enhancement paragraphs in the indictment true
and assessed appellant’s punishment at thirty years in prison. See id. at § 12.42(d).
Appellant raises two issues on appeal. In his first issue, appellant argues that the
trial court abused its discretion when it admitted records from the State of Missouri
documenting his prior felony convictions into evidence. Appellant argues in his
second issue that he received ineffective assistance of counsel during the
punishment phase of his trial because his trial counsel offered no mitigating
evidence. We affirm.
BACKGROUND
Because appellant does not challenge the sufficiency of the evidence
supporting his family violence assault conviction, we include only those facts
necessary to address the two issues that he does raise in this appeal.
Appellant was the complainant’s source for synthetic marijuana. They
entered into an intimate relationship and began living together. According to the
complainant, they lived together for about a year. The complainant described her
relationship with appellant as “horrible, demeaning, very bad,” and she ended the
relationship as a result. The complainant moved to a different location but
appellant eventually found her. Appellant came to the rooming house where the
complainant lived, and he began yelling and banging on the door. The
complainant initially refused to open the door, but eventually she relented and
opened the door because the noise was “disturbing the peace of the neighborhood.”
When the complainant opened the door, appellant grabbed her by the throat and
told her he was going to kill her if she did not take him back. According to the
complainant, in addition to squeezing her throat so hard that she could barely
breathe, appellant hit her in the face and head. The complainant believed that she
was going to die. Appellant let the complainant go and fled the scene when
someone came around the corner. The complainant reported the incident to the
police and appellant was eventually arrested and charged with family violence
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assault. The State alleged that appellant had previously been convicted of family
violence assault in 2012. Appellant went to trial before a jury, which found him
guilty.
The case then proceeded to a bench trial on punishment. The State sought to
enhance appellant’s punishment by including two enhancement paragraphs in
appellant’s indictment. The enhancement paragraphs alleged that appellant had
been previously convicted of two felonies in Missouri.1 The State initially
reoffered all evidence that had been admitted during the guilt/innocence phase at
the beginning of the punishment phase of appellant’s trial. This evidence included
State’s Exhibit 6, which had been admitted without objection during the
guilt/innocence phase of appellant’s trial. Appellant once again did not object to
its admission. State’s Exhibit 6 is a fingerprint card for appellant that was taken
during appellant’s trial. It states that appellant’s date of birth is June 26, 1965.
The State then offered State’s Exhibit 7, a compilation of documents that it
referred to as “a certified pen packet from the state of Missouri,” into evidence.
State’s Exhibit 7 contains a total of thirteen pages, some of which are not relevant
to this appeal. Included in State’s Exhibit 7 is a document containing a set of
1
The first enhancement provides:
And it is further presented in and to said Court that, prior to the commission of the
aforesaid offense (hereinafter styled the primary offense), on the 18th day of
November, 1994, in cause number 941-0733 in the 22nd Judicial Circuit Court of
St. Louis, Missouri the defendant was finally convicted of the felony of Robbery
2nd Degree.
The second enhancement provides:
And it is further presented in and to said Court that, prior to the commission of the
primary offense, and after the conviction in cause number 941-0733 was final, the
defendant committed the felony offense of Stealing $500 or More and was finally
convicted on the 5th day of June, 2009, in cause number 07SL-CR06326 in the
21st Circuit Court of St. Louis County, Missouri.
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fingerprints taken November 28, 1994 from Elbert Jones, No. 511135. Appellant
objected to the admission of State’s Exhibit 7 because, in appellant’s view, the
State had not properly authenticated the exhibit and also because it was hearsay.
The trial court overruled appellant’s objections and admitted State’s Exhibit 7.
The State then recalled Deputy Michael Bell of the Galveston County
Sheriff’s Department to testify.2 Deputy Bell testified that he compared appellant’s
known fingerprints on State’s Exhibit 6 with the fingerprints found in State’s
Exhibit 7 and he opined that the thumb prints on both exhibits “were produced by
the same finger.”
Soon thereafter, the trial court observed that State’s Exhibit 7 did not contain
judgments. The prosecutor then explained the content of State’s Exhibit 7. State’s
Exhibit 7 begins with an affidavit from the Department of Corrections for the State
of Missouri, and it is titled, “Certified Transcript of Serial Records.” The affidavit
provides that the exhibit relates to offender Elbert Jones, with a Missouri
Department of Corrections number of 511135. The affidavit then continues:
State of Missouri,
County of Callaway
I, Melissa Dews, hereby certify:
That I am the Corrections Records Officer I of the Fulton Reception-
Diagnostic Center, Missouri Department of Corrections, Division of
Adult Institutions of the State of Missouri situated at the County and
State aforesaid; that in my legal custody, as such Corrections Records
Officer I, are the original files and records of persons heretofore
committed to the Missouri Department of Corrections, Division of
Adult Institutions that the foregoing is a true and correct copy of the
record of:
2
Deputy Bell testified on his qualifications as a fingerprint expert with the Galveston
County Sheriff’s Department during the guilt/innocence phase of appellant’s trial. Appellant did
not object to Deputy Bell testifying as a fingerprint expert.
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Offender Name: Elbert Jones DOC#: #511135
As shown by the record books, in the Central Records of the Fulton
Reception Diagnostic Center, of the Missouri Department of
Corrections, Division of Adult Institutions.
Melissa Dews signed the affidavit and she identified herself as the Corrections
Records Officer I, for Fulton Reception-Diagnostic Center. Dews swore to the
affidavit before Christina Ostrander, a Missouri notary public, on August 10, 2016.
The affidavit includes Ostrander’s notary public seal for the State of Missouri and
the County of Callaway.
The second page of State’s Exhibit 7 includes Elbert Jones’ fingerprints and
signature. It also identifies Jones as a black male with Missouri Department of
Corrections number 511135. Page three of State’s Exhibit 7 includes Jones’s
photograph, which also shows his Missouri Department of Corrections number,
511135. Page three of the exhibit includes details of Jones’s description as well as
his date of birth—June 26, 1965.
Pages eight through ten of Exhibit 7, all styled “Department of Corrections
Adult Institutions Face Sheet,” contain the details of several of appellant’s
“PRESENT CONVICTIONS” listed as “Seq: 1” through “Seq: 9.” One of the
offenses, listed as “Seq: 3,” details appellant’s conviction in cause number 941-
0733 for the offense of “ROBBERY 2ND DEGREE,” with an offense date of
January 13, 1994. The exhibit states that appellant’s sentence for the offense was
ten years and that it was assessed on November 18, 1994 in St. Louis City. The
State argued that this conviction was consistent with the allegations set forth in the
First Enhancement Paragraph of appellant’s indictment in the present case.
The sixth page of Exhibit 7, also styled “Department of Corrections Adult
Institutions Face Sheet,” contains the details of another of appellant’s “PRESENT
CONVICTIONS.” Page six details appellant’s conviction in cause number 07SL-
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CR06326 for the offense of “STEALING 500 OR MORE,” with an offense date of
August 23, 2007, in St. Louis County. The sentence for the offense was four years.
The State argued that this conviction was consistent with the allegations set forth in
the Second Enhancement Paragraph of appellant’s indictment in the present case.3
After the State rested, the trial court asked appellant’s attorney if he wished
to put on any evidence. Appellant’s attorney replied that “we have no evidence to
put on.” Following closing arguments, the trial court sentenced appellant to thirty
years in prison. This appeal followed.
ANALYSIS
Appellant raises two issue on appeal. We address them in order.
I. The trial court did not abuse its discretion when it admitted State’s
Exhibit 7.
Appellant contends in his first issue that the trial court abused its discretion
when it admitted State’s Exhibit 7 during the punishment phase of his trial because
the State failed to establish the authenticity of the documents contained in the
exhibit.4
3
At this point, appellant renewed his authenticity and hearsay objections. While
recognizing that the trial court had “already ruled on it,” appellant’s attorney went on to raise a
new objection, contending that the State had not “properly proved up the foreign law in the state
of Missouri.” While the trial court overruled appellant’s objection, we conclude that, to the
extent appellant argues on appeal that the trial court abused its discretion when it admitted
State’s Exhibit 7 because the State failed to offer “proof of Missouri’s evidentiary requirements,”
we need not address it because the exhibit had already been admitted prior to the time appellant
objected based on the State’s alleged failure to prove Missouri law. Tex. R. App. P.
33.1(a)(1)(A); see Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999) (stating that an
objection to admission of evidence must be made as soon as the grounds for complaint should be
apparent and the fact “that subsequent events may cause a ground for complaint to become more
apparent does not render timely an otherwise untimely complaint.”) (emphasis in original).
4
While appellant timely lodged a hearsay objection to the admission of State’s Exhibit 7,
he has not included any argument in his appellate brief addressing that contention, accordingly, it
is waived. See Tex. R. App. P. 38.1(i).
6
A. Standard of review and applicable law
Under the Texas Penal Code, if, during the punishment phase of trial, the
State proves that the defendant has been previously finally convicted of two felony
offenses, then the defendant’s minimum punishment is enhanced to 25 years
confinement. Tex. Penal Code § 12.42(d). To establish that a defendant has been
convicted of a prior offense, the State must prove beyond a reasonable doubt that
(1) a prior conviction exists, and (2) the defendant is linked to that conviction.
Flowers v. State, 220 S.W.3d 919, 921–22 (Tex. Crim. App. 2007). No specific
document or mode of proof is required to prove these two elements. There is no
“best evidence” rule in Texas that requires the fact of a prior conviction be proven
with any document, much less any specific document. Id. While evidence of a
certified copy of a final judgment and sentence may be a preferred and convenient
means, the State may prove both of these elements in a number of different ways,
including (1) the defendant’s admission or stipulation, (2) testimony by a person
who was present when the person was convicted of the specified crime and can
identify the defendant as that person, or (3) documentary proof (such as a
judgment) that contains sufficient information to establish both the existence of a
prior conviction and the defendant’s identity as the person convicted. Id. at 922.
Authentication of evidence is a condition precedent to its admissibility. See
Tex. R. Evid. 901(a); Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App.
2012). The proponent of the evidence must “make a threshold showing that would
be ‘sufficient to support a finding that the matter in question is what its proponent
claims.’” Tienda, 358 S.W.3d at 638 (quoting Tex. R. Evid. 901(a)); Reed v. State,
811 S.W.2d 582, 586 (Tex. Crim. App. 1991); see also Druery v. State, 225
S.W.3d 491, 502 (Tex. Crim. App. 2007). Rule of Evidence 901 does not erect a
high hurdle, and that hurdle may be cleared through the use of circumstantial
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evidence. Campbell v. State, 382 S.W.3d 545, 549 (Tex. App.—Austin 2012, no
pet.). The proponent of the evidence does not need “to rule out all possibilities
inconsistent with authenticity, or prove beyond any doubt that the evidence is what
it purports to be.” Campbell, 382 S.W.3d at 549. The proponent must only
produce sufficient evidence that a reasonable fact finder could properly find
genuineness. Tienda, 358 S.W.3d at 638.
Rules of Evidence 901 and 902 govern the authentication requirement. Rule
of Evidence 901(b) provides an illustrative, though not exhaustive, list of examples
of extrinsic evidence that satisfies the requirement of authentication. See Tex. R.
Evid. 901(b)(1)–(10); Reed, 811 S.W.2d at 586. Rule 902 identifies certain
evidence as self-authenticating and dispenses with Rule 901’s requirement of
extrinsic evidence of authenticity for that evidence. See Tex. R. Evid. 902(1)–(10).
A document may be authenticated under either Texas Rule of Evidence 901 or 902
and need not be authenticated under both. See Reed, 811 S.W.2d at 586; Haas v.
State, 494 S.W.3d 819, 823 (Tex. App.—Houston [14th Dist.] 2016, no pet.). In
addition, meeting the requirements of one part of Rule 902 establishes the
documents are self-authenticated.
We review a trial court’s decision to admit evidence over an authentication
objection for an abuse of discretion. Tienda, 358 S.W.3d at 638; Hunter v. State,
513 S.W.3d 638, 640 (Tex. App.—Houston [14th Dist.] 2016, no pet.). If the trial
court’s ruling is within the zone of reasonable disagreement, we will not interfere.
Tienda, 358 S.W.3d at 638; Hunter, 513 S.W.3d at 640; Turnbull v. State, No. 03-
11-00118-CR, 2013 WL 5925543, at *3 (Tex. App.—Austin Oct. 24, 2013, pet.
ref’d) (mem. op., not designated for publication).
B. State’s Exhibit 7 was self-authenticating pursuant to Texas Rule
of Evidence 902(4).
8
In his first issue appellant contends that the trial court abused its discretion
when it admitted State’s Exhibit 7 because, in his view, the Missouri pen packet
did not meet the self-authentication requirements found in three parts of Texas
Rule of Evidence 902. Specifically, appellant asserts that State’s Exhibit 7 did not
meet the requirements found in Rule 902(1) addressing domestic public records
that are sealed and signed; Rule 902(2) addressing domestic public documents that
are not sealed but are signed and certified; nor Rule 902(10)(B) addressing
business records accompanied by an affidavit. We need not consider whether
State’s Exhibit 7 meets the requirements in those sections of Rule 902 because we
conclude that it meets the requirements for self-authentication found in Rule
902(4) of the Texas Rules of Evidence.
Rule 902 allows for self-authentication of copies of “an official record–or a
copy of a document that was recorded or filed in a public office as authorized by
law” if the copy is certified as correct by the custodian or another person
authorized to make the certification. Tex. R. Evid. 902(4). The evidence rules
define “record” to include “a memorandum, report, or data compilation.” Tex. R.
Evid. 101(h)(4).
Here, State’s Exhibit 7 is a report or a data compilation of appellant’s prior
convictions in the State of Missouri. The information found in State’s Exhibit 7
was provided by Melissa Dews, Corrections Records Officer I at the Missouri
Department of Corrections. Dews swore that she had “legal custody” of “the
original files and records of persons” committed to the Missouri Department of
Corrections Fulton Reception Diagnostic Center. As a result, she is a “custodian”
of those records as envisaged by Rule 902(4). Dews further swore that the pages
contained in the exhibit constituted a “true and correct copy of the record of”
appellant. Finally, Dews swore that this record was kept in the “record books” of
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the Missouri Department of Corrections. As mentioned above, Dews’ affidavit
was signed and stamped by a Missouri notary public. We conclude State’s Exhibit
7 meets the requirements of Rule 902(4) and is self-authenticating pursuant to that
rule.5 See Flowers, 220 S.W.3d at 922–23 (stating that, in case involving prior
Texas conviction, “a computer-generated compilation of information setting out
the specifics of a criminal conviction that is certified as correct by the county or
district clerk of the court in which the conviction was obtained is admissible under
rule 902.”). Because State’s Exhibit 7 was self-authenticating, we hold that the
trial court did not abuse its discretion when it overruled appellant’s authenticity
objection. We overrule appellant’s first issue.
II. Appellant has not shown that he received ineffective assistance of
counsel.
Appellant argues in his second issue that his trial counsel rendered
ineffective assistance of counsel because he did not offer mitigating evidence
during the punishment phase of his trial.
A. Standard of review and applicable law
In reviewing claims of ineffective assistance of counsel, we apply a two-part
test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective
assistance of counsel, an appellant must prove by a preponderance of the evidence
that: (1) his trial counsel’s representation was deficient in that it fell below the
5
Appellant relies on Banks v. State in support of his argument that the trial court abused
its discretion when it admitted State’s Exhibit 7. 158 S.W.3d 649 (Tex. App.—Houston [14th
Dist.] 2005, pet. ref’d). We conclude that Banks does not control the outcome here because in
Banks, unlike here, the exhibit at issue did “not contain any certification by an Illinois official.”
Id. at 653. While the court in Banks did also point out the lack of a seal as a basis for concluding
the State did not meet the self-authentication requirements of Rule 902 in that case, Rule 902(4)
does not require a seal. Tex. R. Evid. 902(4).
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standard of prevailing professional norms; and (2) there is a reasonable probability
that, but for counsel’s deficiency, the result of the trial would have been different.
Id.An accused is entitled to reasonably effective assistance of counsel. King v.
State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Bradley v. State, 359 S.W.3d
912, 916 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). Reasonably effective
assistance of counsel does not mean error-free representation, however. Ex parte
Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). Isolated instances in the
record reflecting errors of omission or commission do not render counsel’s
performance ineffective, nor can ineffective assistance of counsel be established by
isolating one portion of trial counsel’s performance for examination. Wert v. State,
383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Therefore,
when evaluating a claim of ineffective assistance, we consider the totality of the
representation and the particular circumstances of the case. Lopez v. State, 343
S.W.3d 137, 143 (Tex. Crim. App. 2011); Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999).
There is a strong presumption that trial counsel’s actions and decisions were
reasonably professional and were motivated by sound trial strategy. Salinas, 163
S.W.3d at 740. It is not sufficient that an appellant show, with the benefit of
hindsight, that his counsel’s actions or omissions during trial were merely of
questionable competence. Lopez, 343 S.W.3d at 143. Instead, for an appellate
court to conclude that counsel was ineffective, counsel’s deficiency must be
affirmatively demonstrated in the trial record and the court must not engage in
retrospective speculation. Id. at 142. When such direct evidence is not available,
we will assume trial counsel had a strategy if any reasonably sound strategic
motivation can be imagined. Id. at 143.
11
Trial counsel ordinarily should be afforded an opportunity to explain her
actions before being denounced as ineffective. Menefield v. State, 363 S.W.3d
591, 593 (Tex. Crim. App. 2012). Unless trial counsel has had an opportunity to
give specific explanations for his decisions, a record on direct appeal will rarely
contain sufficient information to evaluate an ineffective-assistance claim. Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When no reasonable trial
strategy could justify trial counsel’s conduct, however, trial counsel’s performance
falls below an objective standard of reasonableness as a matter of law, regardless
of whether the record adequately reflects trial counsel’s subjective reasons for
acting as he did. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
In other words, when trial counsel has not had an opportunity to explain his actions
or inactions, an appellate court cannot find deficient performance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
B. Appellant has not established that his trial counsel performed
deficiently.
In the present case, the trial court asked appellant’s attorney if he wished to
put on any evidence. Appellant’s attorney replied that “we have no evidence to put
on.” Appellant contends on appeal that this failure to offer mitigating evidence
establishes that his attorney performed deficiently. No motion for new trial was
filed, therefore the record is silent on why appellant’s trial counsel did not offer
mitigating evidence. When the record is silent as to trial counsel’s strategy, we
will not conclude the defendant received ineffective assistance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed, 187 S.W.3d at 392; see Garcia v. State, 57 S.W.3d
436, 440 (Tex. Crim. App. 2001). We conclude that this case does not present
such a situation.
12
We cannot assume from the fact that appellant’s trial counsel did not present
evidence during the punishment phase of appellant’s trial, that his trial counsel did
not use sound trial strategy in taking that course, because the record does not show
whether trial counsel intentionally declined to present such evidence. See Bone, 77
S.W.3d at 834 n.21 (“Neither the court of appeals nor this Court has any idea
whether such evidence existed, whether it would be favorable, or whether counsel
intentionally declined to” introduce it.). We may not assume a lack of sound trial
strategy where the record is silent regarding trial counsel’s strategy. See id. at
836 (“A vague, inarticulate sense that counsel could have provided a better defense
is not a legal basis for finding counsel constitutionally incompetent . . . . [A]
defendant must prove, by a preponderance of the evidence, that there is, in fact, no
plausible professional reason for a specific act or omission.”). Accordingly, we
conclude that appellant has failed to satisfy the first prong of Strickland. We
overrule appellant’s second issue.
CONCLUSION
Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Christopher, Zimmerer, and Hassan.
Publish — TEX. R. APP. P. 47.2(b).
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