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Josef Tyree Merced v. State ( 2008 )


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    In The

    Court of Appeals

    Sixth Appellate District of Texas at Texarkana



    ______________________________



    No. 06-07-00064-CR

    ______________________________





    JOSEF TYREE MERCED, Appellant



    V.



    THE STATE OF TEXAS, Appellee





    On Appeal from the County Court at Law No. 2

    Gregg County, Texas

    Trial Court No. 35044-A









    Before Morriss, C.J., Carter and Moseley, JJ.

    Memorandum Opinion by Justice Carter



    MEMORANDUM OPINION



    Josef Tyree Merced appeals his conviction for murder. See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). Merced's sole point of error alleges his trial counsel provided ineffective assistance. We overrule this issue and affirm his conviction.

    The Sixth Amendment to our Federal Constitution guarantees the accused in a criminal case the right to counsel. See U.S. Const. amend. VI; Powell v. Alabama, 287 U.S. 45 (1932). Implicit in this constitutional guarantee is the right to a competent and functioning counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984); United States v. Cronic, 466 U.S. 648, 654 (1984). If an accused's counsel provides incompetent and ineffective assistance at trial, and if it can be said that such ineffective assistance rises to the level of a due process violation, then such failings undermine our faith in the outcome of the accused's trial. See Strickland, 466 U.S. at 685; Cronic, 466 U.S. at 654.

    To prevail on a claim of ineffective assistance, the appellant must demonstrate first "that his counsel's conduct was objectively deficient." Ex parte McFarland, 163 S.W.3d 743, 753 (Tex. Crim. App. 2005) (citing Cronic, 466 U.S. at 658). "In assessing this, we look to see if counsel was acting as 'a reasonably competent attorney' would under the circumstances." Id. (citing Strickland, 466 U.S. at 687). The appellant has the burden of proof on appeal, and he or she "must overcome a 'strong presumption that counsel's performance fell within the wide range of reasonable professional assistance.'" Id. (citing Strickland, 466 U.S. at 689). In essence, the appellant must show that the trial attorney made errors that are "so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland, 466 U.S. at 687.

    There are many problems attendant to raising a claim of ineffective assistance on direct appeal. As we recently observed,

    When, as here, ineffective assistance is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); cf. Massaro v. United States, 538 U.S. 500, 504-05 (2003). Nonetheless, some claims may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record." Massaro, 538 U.S. at 508; Freeman, 125 S.W.3d at 506; see also Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 814 n.6 (Tex. Crim. App. 1999). "[W]hen no reasonable trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as she did." Andrews, 159 S.W.3d at 102. A claim of ineffective assistance of counsel, on an undeveloped record on direct appeal, should, nonetheless, "be entertained and upheld if supported by the record."



    Fuller v. State, 224 S.W.3d 823, 828-29 (Tex. App.--Texarkana 2007, no pet.) (footnote omitted); see also Oldham v. State, 977 S.W.2d 354, 360 (Tex. Crim. App. 1998). If the record on direct appeal is inadequate, habeas corpus is the more appropriate avenue for developing the record on this issue. Moore v. State, 227 S.W.3d 421, 426 n.1 (Tex. App.--Texarkana 2007, pet. ref'd). Moreover, if the appellate court can imagine a strategic motive to explain the ineffective assistance claim, then the reviewing court may not sustain the appellant's point of error. Freeman, 125 S.W.3d at 511 (citing Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002)).

    Merced contends he received ineffective assistance because his trial counsel neither challenged the admissibility of Merced's videotaped statement nor moved to suppress the State's remaining evidence.

    First, Merced's appellate counsel characterizes the videotaped statement now at issue as showing the detective who conducted the custodial interrogation of Merced as "making repeated accusations and blatant lies to the Appellant." Merced nevertheless believes counsel's failure to seek suppression of such a statement results in constitutionally ineffective assistance. We disagree.

    It would not have been an unreasonable trial tactic for Merced's trial counsel to affirmatively want such evidence admitted at trial. This is because a reasonable and common defensive strategy is to discredit the State's case by demonstrating that the State's witnesses are not credible. If the videotape convinced the jury that the police officers were lying to or misleading the defendant, it might have seriously damaged the credibility of the State's evidence. Accordingly, because we can perceive a strategic reason to explain trial counsel's acquiescence to the admission of the videotape, the record on appeal will not support Merced's claim of ineffective assistance on this basis.

    Second, with respect to the allegation of receiving ineffective assistance because trial counsel did not file a motion to suppress, Merced has not affirmatively demonstrated that the record would have required the suppression of any of the State's evidence. As such, it is plausible that counsel had reviewed the State's evidence, and (having been an attorney with substantial practice before this particular trial court) made the professional judgment that the trial court hearing the case would have been unlikely to grant any motion to suppress based on the discrete facts known by counsel and the current state of the law. Accordingly, because we can conceive a justification for trial counsel's alleged failure, the appellate record will not support a reversal based on Merced's allegations of ineffective assistance.

    We affirm the trial court's judgment.





    Jack Carter

    Justice



    Date Submitted: February 6, 2008

    Date Decided: February 29, 2008



    Do Not Publish

    who arrived on the scene were Paul Hickey and Paul Penick of the Longview Police Department. Hickey and Penick took Sullivan into custody.

    The Stovalls identified Sullivan in open court as the person who was stealing the A.T.V. and who assaulted them both. The Stovalls also testified that they had not given Sullivan permission to take the A.T.V. Hickey and Penick identified Sullivan as the person they took into custody; Hickey also testified Sullivan had tried to escape after being placed in handcuffs, but Hickey tackled Sullivan before he could get away. Finally, both Hickey and Penick identified the Stovalls' shotguns as deadly weapons capable of causing death or serious bodily injury, even if used as a club. Sullivan sponsored no rebuttal evidence or testimony.

    Viewing the evidence in the light most favorable to the jury's verdict, the State's evidence satisfied each essential element of the charged crime. The record is clear that Sullivan assaulted both Jeremy and Robert during the course of committing or attempting to commit a theft or in an effort to flee from the scene. Sullivan used Jeremy's gun, which the officers identified as a deadly weapon, to injure Jeremy. The evidence rationally supports the conclusion that the theft had not been fully completed, as the Stovalls were able to interrupt the theft before Sullivan could escape the Stovalls' property (which sat approximately 300 feet from the roadway) with the A.T.V. Accordingly, we conclude the jury's verdict is supported by legally sufficient evidence.

    Similarly, we believe that, when looking at all the evidence in a neutral light, the jury could have rationally concluded the State had met its burden of proving the essential elements of the crime beyond a reasonable doubt. We find nothing about the jury's "guilty" verdict to be manifestly unjust, nor is it contradicted by the great weight and preponderance of the evidence. Accordingly, the evidence is factually sufficient to support Sullivan's conviction.

    We overrule Sullivan's challenge to the sufficiency of the evidence.

    (2) Sullivan Was Not Entitled to a Jury Charge on the Lesser-Included Offense of Theft

    Sullivan also contends the trial court erred by refusing to submit a requested lesser-included offense jury instruction on the offense of theft. During the charge conference, (2) Sullivan asked for a jury instruction that would permit the jury to find him guilty of theft of property valued at more than $1,500.00, but less than $20,000.00, (3) rather than aggravated robbery. The trial court overruled Sullivan's request, commenting,

    The definition of "in the course of committing theft" means conduct that occurs in an attempt to commit, during the commission or in immediate flight after the attempt of the commission. It doesn't make any difference whether the theft was complete or not. This is going to be immediate flight for sure.

    To determine whether a charge on a lesser-included offense should be given, we apply a two-step test. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002); see Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. [Panel Op.] 1981) (plurality opinion). The first step is to decide whether the offense is a lesser-included offense of the offense charged. See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Mathis, 67 S.W.3d at 925. The second step of the test requires us to evaluate the evidence to determine whether there is some evidence that would permit a jury rationally to find that the defendant is guilty only of the lesser offense. Mathis, 67 S.W.3d at 925; Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). Further, the evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Wesbrook, 29 S.W.3d at 113 (citing Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997)). "[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warranted." Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).

    Theft can be a lesser offense of aggravated robbery. Id. at 23. As we have noted, "in the course of committing theft" includes "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Tex. Penal Code Ann. § 29.01(1) (Vernon 2003). From the record before us, we cannot say there is any evidence that Sullivan is guilty of only theft, because all the evidence indicates Sullivan's assault of Jeremy, using the stock end of the .410 gauge shotgun, occurred while Sullivan was either committing the theft, attempting that theft, or attempting to flee from the scene of the crime. There is no evidence in the record that Sullivan had completed the theft, fled the scene of the crime, and thereafter returned to commit a separate assault. All the evidence in the record leads to but a single conclusion: Sullivan assaulted Jeremy with the gun "in the course of committing theft." Accordingly, the trial court properly overruled Sullivan's requested jury instruction.

    (3) Sullivan's Sentence Is Not Disproportionate

    Sullivan finally contends his sentence of imprisonment for life is disproportionate to his crime, citing Solem v. Helm, 463 U.S. 277 (1983). (4) The State counters that this punishment was within the range provided by the Legislature and is, therefore, acceptable.

    Texas courts have traditionally held that, as long as the punishment assessed is within the range prescribed by the Legislature in a valid statute, the punishment is not excessive, cruel, or unusual. See, e.g., Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Here, Grimes' sentence falls within the applicable range of 180 days to two years. See Tex. Penal Code Ann. § 12.35 (Vernon 2003).

    That does not end the inquiry. A prohibition against grossly disproportionate punishment survives under the Eighth Amendment to the United States Constitution apart from any consideration of whether the punishment assessed is within the range established by the Legislature. U.S. Const. amend. VIII; see Solem, 463 U.S. at 290; Harmelin v. Michigan, 501 U.S. 957 (1991) (Scalia, J., plurality op.); Dunn v. State, 997 S.W.2d 885, 892 (Tex. App.--Waco 1999, pet. ref'd); Jackson v. State, 989 S.W.2d 842, 845 (Tex. App.--Texarkana 1999, no pet.); Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.--Dallas 1994, pet. ref'd).

    Solem had suggested, as a three-part test, that an appellate court consider: (1) the gravity of the offense compared with the harshness of the penalty; (2) the sentences imposed for similar crimes in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. See Solem, 463 U.S. at 292. Harmelin at least raised questions about the viability of the Solem three-part test. In fact, it was subsequently held that proportionality survived Harmelin, but that the Solem three-part test did not. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Dunn, 997 S.W.2d at 892; Lackey, 881 S.W.2d at 420-21. In light of Harmelin, the test has been reformulated as an initial threshold comparison of the gravity of the offense with the severity of the sentence, and then, only if that initial comparison created an inference that the sentence was grossly disproportionate to the offense should there be a consideration of the other two Solem factors--(1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder, 954 F.2d at 316; Mullins v. State, No. 06-06-00044-CR, 2006 Tex. App. LEXIS 10072, at *3 (Tex. App.--Texarkana Nov. 21, 2006, no pet. h.); Dunn, 997 S.W.2d at 892; Lackey, 881 S.W.2d at 420-21.

    In this case, we cannot say the severity of the sentence is grossly disproportionate to the gravity of the offense. First, Robert and Jeremy both testified that, once Sullivan took Robert's gun, he tried to aim and fire it at the Stovalls. Second, Robert suffered a torn ACL as a result of the struggle with Sullivan--an injury requiring Robert to undergo surgery to repair the damage. Third, Sullivan admitted to using drugs during the evening before trying to steal the A.T.V., and Hickey testified that he thought Sullivan was still under the influence of methamphetamine at the time of the arrest. Fourth, Sullivan's parole officer testified that Sullivan had been released from prison approximately four months before committing the crime for which he was being tried.

    Finally, and most persuasively, the State introduced evidence that Sullivan had been previously charged and convicted of resisting arrest, burglaries of buildings, and felony theft. There was additional evidence that Sullivan had another burglary charge, but that charge was dismissed in exchange for Sullivan's guilty plea to another 1997 theft charge. (5) For one of the burglary convictions, Sullivan had been sentenced to twenty years' imprisonment July 17, 1992, by the same trial judge before whom the current trial was proceeding; yet before Sullivan had satisfied the remainder of that sentence while on parole, he had committed several new felonies, including the current aggravated robbery offense. In all, Sullivan stood convicted of six different crimes.

    Given the specific facts regarding the severity of Robert's injuries as a result of being assaulted, the testimony from both Stovalls that Sullivan tried to fire one of the guns at them, and Sullivan's extensive criminal history including several new crimes committed while on parole, we cannot say a life sentence is grossly disproportionate. Accordingly, we need not compare the sentence assessed by the jury in the case with sentences imposed by juries in this or other jurisdictions. We overrule Sullivan's final point of error.

    Finding no reversible error in the court below, we affirm the trial court's judgment.



    Josh R. Morriss, III

    Chief Justice



    Date Submitted: January 24, 2007

    Date Decided: January 25, 2007



    Do Not Publish

    1. There is no indication in the record before us that this person was ever identified or located.

    2. See Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon 2006) (requested special charges).

    3. Such an offense is classified as a state-jail felony, which carries a lesser punishment than aggravated robbery. See Tex. Penal Code Ann. § 31.03(a) (Vernon 2003), § 31.03(e)(4)(A) (Vernon Supp. 2006).

    4. Sullivan did not object to the sentence on the ground it was disproportionate to the crime, or on any other ground, at the time it was imposed. His motion for new trial, however, contains a contention that the sentence was disproportionate to the offense. A motion for new trial is an appropriate way to preserve this type of claim for review. See Williamson v. State, 175 S.W.3d 522, 523-24 (Tex. App.--Texarkana 2005, no pet.); Delacruz v. State, 167 S.W.3d 904 (Tex. App.--Texarkana 2005, no pet.).

    5. As part of the plea agreement paperwork in connection with the 1997 crime, Sullivan made a judicial admission that he committed the alleged burglary, but acknowledged the State would not prosecute him for that crime in exchange for his guilty plea in a companion case.