Christopher Dion Davis v. State ( 2002 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00063-CR ______________________________



CHRISTOPHER D. DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 102nd Judicial District Court Bowie County, Texas Trial Court No. 96F010-102

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Ross

O P I N I O N  

Christopher Davis appeals his conviction, on his plea of guilty, for assault on a public servant, enhanced by a prior felony conviction. The trial court assessed his punishment at fifteen years' imprisonment, which the trial court ordered to run consecutively with a sentence Davis was serving from a previous conviction. The trial court sentenced Davis on May 2, 1996.

Davis did not file a motion for new trial; therefore, his notice of appeal was due by June 1, 1996, or with a proper request for an extension, by June 16, 1996. Tex. R. App. P. 26.2(a)(1), 26.3. Davis filed a notice of appeal pro se on May 8, 2000, and again on March 18, 2002.

Therefore, because Davis did not file a timely notice of appeal, this Court lacks jurisdiction over this appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The appeal is dismissed for want of jurisdiction.

Donald R. Ross

Justice

Date Submitted: April 26, 2002

Date Decided: April 26, 2002

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center">Sixth Appellate District of Texas at Texarkana

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No. 06-02-00212-CR

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WARREN HUDSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 00F0393-005

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Before Morriss, C.J., Ross and Cornelius, *JJ.

Memorandum Opinion by Chief Justice Morriss

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*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION

            Warren Hudson was convicted of possession of cocaine in the amount of 400 grams or more. The jury assessed his punishment at forty years' imprisonment and a $5,000.00 fine. Hudson also has a pending appeal in a companion case, Hudson v. State, No. 06-02-00211-CR (Tex. App.—Texarkana 2004, no pet. h.). The two cases were tried together, and Hudson raised the same contentions in each appeal, save a few exceptions. He contends under this cause that the judgment of conviction is incorrect because of certain inconsistencies it contains and that it is therefore voidable. He also contends he received ineffective assistance of counsel due to his trial counsel's failure to file a motion for new trial and his failure to object to testimony concerning the street value of the cocaine seized.

Judgment of Conviction

            Hudson contends the trial court's judgment is voidable because of certain inconsistencies it contains. He points out that, on the second page of the judgment for possession of cocaine filed November 6, 2002, the verdict of the jury received by the court was as follows: "We, the jury, find the defendant, Warren Hudson, guilty of possession of a usable quantity of marijuana as charged in the indictment." Also on the second page of the judgment, it states that "the Defendant having previously elected to have the punishment assessed by the Judge . . . ." As Hudson points out, trial court cause number 00-F-0395-005 was for possession of cocaine, not marihuana, and Hudson had elected to have the jury, not the court, assess punishment. The judgment also reflects that the plea to the enhancement paragraph was not applicable. Hudson, in fact, pled true to the enhancement paragraph during the punishment phase of trial.

            The State contends the judgment was amended July 3, 2003, to accurately reflect the judgment against Hudson. While the judgment was styled as an amended judgment, we find that the judgment was in effect a nunc pro tunc judgment correcting the clerical errors of which Hudson complains. The Texas Rules of Appellate Procedure allow a trial court to modify, correct, or set aside judgments and orders through motions for new trial, motions to arrest judgment, and motions for judgment nunc pro tunc. Tex. R. App. P. 21–23. Rule 23 vests a trial court with the authority to correct mistakes or errors in a judgment or order after the expiration of the court's plenary power, via entry of a judgment nunc pro tunc. A judgment nunc pro tunc, which literally means "now for then," may not be used to correct "judicial" errors, i.e., those errors which are a product of judicial reasoning or determination. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994). Instead, nunc pro tunc orders may be used only to correct clerical errors in which no judicial reasoning contributed to their entry. See Alvarez v. State, 605 S.W.2d 615 (Tex. Crim. App. 1980) (holding erroneous recitation judgment entered in Criminal District Court Number Three could be corrected nunc pro tunc as clerical error to reflect judgment entered in Criminal District Court Number Two six months after entry of final judgment). It is readily apparent in this case that the errors of which Hudson complains were clerical errors done as a result of mistake or inadvertence. The nunc pro tunc judgment of the trial court correcting the clerical errors of the original judgment is valid. Hudson's first point of error is overruled.

Ineffective Assistance of Counsel

            Hudson contends he was denied his constitutional right to effective assistance of counsel. He contends defense counsel was deficient in his failing to file a motion for new trial to correct the voidable judgment discussed above and failing to object to testimony regarding the street value of the cocaine seized.

            Hudson contends defense counsel should have filed a motion for new trial to correct the voidable judgment. When a motion for new trial is not filed in a case, there is a rebuttable presumption the defendant was counseled by his attorney regarding the merits of the motion, and ultimately rejected the option. Oldham v. State , 977 S.W.2d 354, 362–63 (Tex. Crim. App. 1998). This presumption will not be rebutted when there is nothing in the record to suggest otherwise. Smith v. State, 17 S.W.3d 660, 662–63 (Tex. Crim. App. 2000) (presumption not rebutted where defendant filed pro se notice of appeal alleging counsel was ineffective and defendant subsequently appeared without counsel to sign pauper's oath and request new counsel); Oldham, 977 S.W.2d at 363 (presumption not rebutted where defendant filed pro se notice of appeal and affidavit of indigency on twenty-eighth day after sentencing and, on twenty-ninth day, notation made in court document stating appellate attorney "to be determined"). No evidence exists in the record to rebut the presumption that Hudson was counseled on his right to file a motion for new trial, and ultimately rejected that option. In addition, no harm is shown because a nunc pro tunc judgment was filed accurately reflecting the judgment and facts in the case.

            Hudson also contends he received ineffective assistance of counsel because of defense counsel's failure to object to testimony regarding the street value of the cocaine seized. During direct examination, Officer Mark Henry testified that, if the cocaine was purchased in one lump sum, the street value was approximately $16,000.00, but if broken down further, the street value could approach $100,000.00. Generally, testimony concerning the price or value of a controlled substance is admissible. See Thibeadeau v. State, 739 S.W.2d 482, 485 (Tex. App.—Beaumont 1987), vacated on other grounds, 761 S.W.2d 22 (Tex. Crim. App. 1988) (stating value of cocaine admissible evidence); Kemner v. State, 589 S.W.2d 403, 406 (Tex. Crim. App. 1979) (holding testimony regarding value of marihuana recovered from appellant not reversible error); Martin v. State, 823 S.W.2d 726, 728 (Tex. App.—Waco 1992, pet. ref'd) (finding value of marihuana admissible). Such testimony realistically conveys to the fact-finder the amount of the contraband and its effects on persons in terms that are understandable. Kemner, 589 S.W.2d at 406.

            Hudson cites Cabrales v. State, 932 S.W.2d 653, 658 (Tex. App.—Houston [14th Dist.] 1996, no pet.), for the proposition that defense counsel should have objected to the testimony regarding the value of the cocaine on relevance grounds. That case is distinguishable from the case at hand. In Cabrales, the defendant was indicted for possession of powdered cocaine. Id. However, a police officer testified to the value and method of manufacturing crack cocaine, which the court found irrelevant in the defendant's case. Id. at 658–59 (citing Castiblanco-Gomez v. State, 882 S.W.2d 564, 568 (Tex. App.—Houston [1st Dist.] 1994, no pet.)). In this case, Officer Henry did not testify to the value or method of manufacturing crack cocaine. He testified only to the value of the powdered cocaine in the amount seized from Hudson, which is generally admissible and relevant to the case. Therefore, defense counsel's failure to object was not error or below the objective standard of reasonableness.

            In addition, for the reasons stated in our opinion in cause number 06-02-00211-CR, decided

this date, we likewise find Hudson's other contentions in this appeal to be without merit.

            We affirm the judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          January 22, 2004

Date Decided:             February 5, 2004

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