Donald Ray Giles v. State ( 2019 )

AFFIRMED AS MODIFIED and Opinion Filed December 3, 2019
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00865-CR
DONALD RAY GILES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F16-24162-K
MEMORANDUM OPINION
Before Justices Pedersen, III, Reichek, and Carlyle
Opinion by Justice Carlyle
Donald Ray Giles appeals his conviction and sentence for capital murder. He contends: (1)
the evidence is legally insufficient to support his conviction; (2) the trial court erred by not
instructing the jury on the lesser included offenses of murder and manslaughter; (3) his trial
counsel was constitutionally ineffective; and (4) his mandatory sentence of life without parole is
unconstitutional. We affirm and, because the issues are settled in law, issue this memorandum
opinion. See TEX. R. APP. P. 47.4.
Background
Layth Fadhil runs a business from a warehouse unit adjacent to one formerly occupied by
Donald St. Claire. St. Claire, an elderly man with his own business, lived in the office portion of
his unit. Fadhil and St. Claire were friends, and Fadhil would often check on St. Claire to make
sure he was okay.
On July 3, 2016, Fadhil returned from a trip overseas. He drove to his unit the next morning
and immediately noticed “a terrible smell.” He walked over toward St. Claire’s unit and noticed
the smell got stronger. When he peeked inside St. Claire’s unit, he saw St. Claire’s dead body:
“[H]is cheeks [were] all swollen up. His body was like decomposed, and I [saw] puddles of blood
on the floor. That’s when I rushed back to my office, grabbed the phone, and called 911.”
When police officers arrived, they found St. Claire’s moderately decomposed body sitting
in a recliner. There was a large pool of blood on the floor in front of him, and it appeared his skull
had been crushed. An autopsy later confirmed St. Claire was killed by blunt-force trauma to the
head, and the medical examiner determined his death was a homicide. Officers found a
sledgehammer near St. Claire’s body, which Fadhil confirmed St. Claire kept in his unit. The
medical examiner concluded St. Claire’s injuries appeared consistent with a blow from a
sledgehammer, although he could not rule out other objects. The State did not present further
physical evidence linking St. Claire’s injuries to the sledgehammer found at the scene.
Police obtained surveillance footage covering all entrances and exits to and from St.
Claire’s unit. This footage showed only one person (later determined to be Giles) entering or
exiting St. Claire’s unit after St. Claire was last seen entering the unit alive on July 1 and before
his body was discovered on July 4. In fact, Giles was seen entering and exiting the unit multiple
times during that period, including a visit soon after St. Claire was last seen alive on July 1, two
visits later that night, and two more visits on the morning of July 4.
When interviewed by police, Giles admitted he was the person seen on the surveillance
footage entering and exiting St. Claire’s unit. He also admitted both that he entered St. Claire’s
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unit intending to steal and that he stole several items from the unit. But he insisted he did not kill
St. Claire.
Among the evidence admitted at this trial was the surveillance footage, the autopsy report,
and Giles’s police interview. The medical examiner also testified that St. Claire’s death was a
homicide. And he added that, based on St. Claire’s injuries, the killer used a relatively heavy object
to strike the elderly St. Claire in the head with tremendous force. A police detective further testified
that, after reviewing all of the surveillance footage, Giles was the only person who either entered
or exited St. Claire’s unit during the time frame in which St. Claire was killed. Thus, the State
argued, he is the only person who could have killed St. Claire.
Giles did not offer evidence of his own. Instead, his counsel conceded during closing
arguments that Giles burglarized St. Claire’s unit. He contended the State failed to prove Giles was
the person who killed St. Claire, asking the jury to convict him of burglary. The jury convicted
Giles of capital murder, and the trial court sentenced him to life in prison without parole.
The evidence was legally sufficient to support Giles’s conviction.
In his first two issues, Giles challenges the legal sufficiency of the evidence, arguing the
State failed to establish both his identity as the killer and his intent to kill St. Claire. When
evaluating the sufficiency of the evidence supporting a criminal conviction, “we consider the
combined and cumulative force of all admitted evidence in the light most favorable to the verdict
to determine whether, based on that evidence and the reasonable inferences therefrom, a jury was
rationally justified in finding guilt beyond a reasonable doubt.” Tate v. State, 500 S.W.3d 410, 413
(Tex. Crim. App. 2016) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). For purposes
of this inquiry, direct and circumstantial evidence are equally probative. Id.
Giles’s identity-based challenge boils down to an assertion that, without physical evidence
linking him directly to St. Claire’s death, the State could not prove he was St. Claire’s killer. But
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physical evidence is not required to establish identity. See Earls v. State, 707 S.W.2d 82, 85 (Tex.
Crim. App. 1986) (“Evidence as to the identity of the perpetrator of an offense can be proved by
direct or circumstantial evidence.”); Carillo v. State, No. 05-09-00310-CR, 2010 WL 2951855, at
*5 (Tex. App.—Dallas July 29, 2010, no pet.) (mem. op., not designated for publication)
(“Although no physical evidence linked Carrillo to the offense, none was necessary.”); see also
Delacerda v. State, 425 S.W.3d 367, 382 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
(“Sufficient evidence can support a murder conviction even in the absence of physical evidence
such as DNA evidence, fingerprinting evidence, and the murder weapon; thus, such evidence is
not required to obtain a conviction.”).
The State presented the medical examiner’s undisputed testimony that St. Claire’s death
was a homicide. The State also presented the video evidence. When paired with Giles’ admission
to being the person seen entering and exiting St. Claire’s unit, this evidence gave strong support
for a rational juror to infer Giles is St. Claire’s killer.
We likewise reject Giles’s intent-based challenge. Giles correctly points out that the State
was required to prove he intentionally killed St. Claire. See TEX. PENAL CODE § 19.03(a)(2);
Demouchette v. State, 731 S.W.2d 75, 80 (Tex. Crim. App. 1986). But “specific intent to kill may
be inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably
apparent that death or serious bodily injury could not result.” Godsey v. State, 719 S.W.2d 578,
580–81 (Tex. Crim. App. 1986) (citations omitted). When “a deadly weapon is used in [a] deadly
manner, the inference is almost conclusive that [the perpetrator] intended to kill.” Id. A deadly
weapon is “anything that in the manner of its use or intended use is capable of causing death or
serious bodily injury.” PENAL § 1.07(a)(17)(B).
Here, the medical examiner testified St. Claire suffered a hinge fracture to his skull—a
“devastating injury” you ordinarily see in “traffic wreck situations.” In order to inflict such an
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injury, the medical examiner testified the killer must have struck St. Claire in the head with a
relatively heavy object, using a tremendous amount of force. Whatever object was used, according
to the examiner, was “pretty much by definition” a deadly weapon. We agree. See id.
Based on the medical examiner’s testimony, a rational jury could have found that Giles
struck St. Claire in the head with a heavy object, using an amount of force sufficient to severely
fracture his skull. The jury thus could infer beyond a reasonable doubt that Giles acted with the
specific intent to kill St. Claire. See id.; see also Fisher v. State, No. 05-07-01133-CR, 2008 WL
3020815, at *3 (Tex. App.—Dallas Aug. 6, 2008, not pet.) (not designated for publication)
(evidence was sufficient to infer specific intent where it showed defendant used an unspecified
“wooden object” to inflict blunt-force injuries resulting in death).
Giles admitted burglarizing St. Claire’s unit. A rational jury could have found that Giles
intentionally killed St. Claire in the course of that burglary. See PENAL § 19.03(a)(2). We therefore
conclude the evidence was legally sufficient to support Giles’s conviction for capital murder, and
we overrule Giles’s first two issues.
The trial court was not required to sua sponte instruct the jury on the lesser-included
offenses of murder and manslaughter.
In his third and fourth issues, Giles contends the trial court erred by not sua sponte
instructing the jury on the lesser-included offenses of murder and manslaughter. But “a jury
instruction on a lesser included offense is not ‘applicable to the case’ absent a request by the
defense for its inclusion in the jury charge, and the trial court does not have a duty to sua sponte
instruct the jury on a lesser included offense.” Gipson v. State, No. 05-16-01065-CR, 2017 WL
4247965, at *2 (Tex. App.—Dallas Sept. 25, 2017, no pet.) (mem. op., not designated for
publication) (citation omitted) (quoting Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App.
2010)). “A defendant who did not request an instruction on a lesser included offense waives his
right to complain on appeal that the trial court was required to give the instruction.” Id. Giles did
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not request an instruction on the lesser-included offenses of murder and manslaughter, and waived
his third and fourth issues.1 See id.
The record is insufficient to demonstrate ineffective assistance of counsel.
In his fifth and sixth issues, Giles asserts his trial counsel was constitutionally ineffective
under the principles established in Strickland v. Washington, 466 U.S. 668 (1984), and United
States v. Cronic, 466 U.S. 648 (1984). To successfully assert a claim under Strickland, Giles must
show by a preponderance of the evidence both that his counsel’s representation fell below an
objective standard of reasonableness and that he suffered prejudice as a result. Strickland, 466 U.S.
at 687; Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). To demonstrate such
prejudice, Giles must show “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694; Perez,
310 S.W.3d at 893.
Ineffective assistance can nevertheless be presumed prejudicial under Cronic where
“counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Cronic,
466 U.S. at 659. For this presumption to apply, counsel’s failure to test the prosecution’s case must
be “complete.” Bell v. Cone, 535 U.S. 685, 697 (2002). This standard distinguishes between
shoddy representation and no defense at all. In re K.B., No. 05-19-00700-CV, 2019 WL 5485320,
at *6 (Tex. App.—Dallas Oct. 25, 2019, no pet. h.) (mem. op.). “Bad lawyering, regardless of how
bad, does not justify applying Cronic.” Id. (quoting In re S.B., No. 02-18-00310-CV, 2019 WL
1388760, at *15 (Tex. App.—Fort Worth Mar. 28, 2019, pet. denied) (mem. op.)). The defendant
must “establish that counsel was not merely incompetent but inert.” In re K.B., 2019 WL 5485320,
1
Even if Giles had not waived the issues, there is no affirmative evidence indicating Giles was guilty of only murder or manslaughter. See
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012) (explaining that to be entitled to an instruction on a lesser-included offense, there
must be evidence “directly germane to the lesser-included offense . . . ris[ing] to a level that a rational jury could find that if Appellant is guilty, he
is guilty only of the lesser-included offense” and adding that “[m]eeting this threshold requires more than mere speculation—it requires affirmative
evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense”).
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at *6 (quoting In re S.B., 2019 WL 1388760, at *15). Cronic claims are epitomized by the inert or
potted-plant lawyer who, although physically and mentally present in the courtroom, fails to
provide—or is prevented from providing—any meaningful assistance. Ex parte McFarland, 163
S.W.3d 743, 752 (Tex. Crim. App. 2005).
Giles asserts Cronic should apply here because his trial counsel “wholly failed to subject
the State’s case to meaningful adversarial testing.” Yet Giles acknowledges his counsel: (1) filed
an omnibus pre-trial motion; (2) argued that motion and obtained rulings before trial; (3) made
objections to the State’s evidence (some of which, we note, were sustained); (4) cross-examined
all but one of the State’s witnesses; and (5) filed a motion for new trial. The record reveals Giles’s
counsel reviewed discovery, actively participated in jury selection, moved for an instructed verdict
of acquittal at the appropriate time, admonished Giles about his right to remain silent or testify, 2
and made appropriate arguments to the jury. Regardless of whether Giles’s counsel was effective
in each of those pursuits, he was not “inert.” See Ex parte McFarland, 163 S.W.3d at 752; In re
K.B., 2019 WL 5485320, at *6. Cronic does not apply.
As for the Strickland claim, there is a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; Perez,
310 S.W.3d at 893. And if there is no record of trial counsel’s explanation for the conduct in
question, we “assume a strategic motive if any can be imagined and find counsel’s performance
deficient only if the conduct was so outrageous that no competent attorney would have engaged in
it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). For this reason, a direct
appeal—where the record is generally undeveloped on these issues—rarely provides the proper
vehicle for asserting a Strickland claim, which must be firmly grounded in and affirmatively
demonstrated by the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
2
As we discuss later, Giles’s counsel appears to have incorrectly explained the range of punishment during that admonishment.
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Here, the record is insufficient to fairly evaluate whether either prong could be satisfied.
Giles contends:
The record is devoid of any evidence that trial counsel investigated
Appellant’s case or attempted to meaningfully test the State’s evidence. There is no
evidence that he hired an investigator, that he explored any prior relationship
between Appellant and the complainant, that he tested any aspect of the video
surveillance footage by expert or chain of custody, or that he attempted to ascertain
any timeline related to the decomposition of complainant’s body.
This complaint encapsulates the reasons courts generally wait to decide ineffectiveness issues until
after the parties have engaged in the record-creating work that is the subject of habeas. We can
imagine strategic motives for avoiding each of these topics in the trial. See Andrews, 159 S.W.3d
at 101. Because the record does not affirmatively establish both deficient performance and
prejudice, we overrule these complaints. See Strickland, 466 U.S. at 687; Perez, 310 S.W.3d at
892–93.
Further, Giles complains his counsel did not file any “substantive motions,” request
discovery under the Michael Morton Act, or conduct pre-trial hearings. But he does not specify
which motions, hearings, or discovery requests counsel should have pursued, nor does he explain
how any of those pursuits would have affected the outcome of the trial. See Arevalo v. State, No.
05-18-00126-CR, 2019 WL 3886650, at *9 (Tex. App.—Dallas Aug. 19, 2019, no pet. h.) (mem.
op., not designated for publication) (rejecting similar arguments concerning pretrial motions and
discovery). Counsel did file an omnibus pretrial motion, and the trial court granted nearly all of
the relief requested in that motion. And the record shows Appellant’s counsel told the trial court
he had discussed discovery extensively with the prosecution, adding that “the State . . . has
tendered a ton of materials for discovery, videos, photographs, [and] reports,” and “I believe that
I have seen everything that [the State] has.” The State affirmatively represented to the trial court
that it had turned everything it had over to the defense. On this record, these complaints show
neither deficient performance nor prejudice.
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Giles also complains his “[c]ounsel actively misadvised [him] about the penalty range
when [he] was deciding whether to testify.” This complaint stems from an isolated comment
counsel made while he was admonishing Giles on the record about his right to testify: “I told you
that this is a -- obviously, a capital murder trial, and the result of this case is the most severe, an
imposition of a sentence of death. So it’s one of those decisions that has to be taken very seriously.”
Although the State did not seek the death penalty in Giles’s case, the record is insufficient to show
deficient performance for the over-warning or prejudice therefrom. Counsel referred to his and
Giles’s discussions regarding the decision to testify “over the last several months,” and that Giles
had “gone back and forth” on that decision. Giles indicated no disagreement with any of this and
stated he did not “want to testify,” though he indicated his counsel had not stated his exact reason
for not wanting to testify. The record contains no indications of what maximum-punishment advice
counsel may have previously given Giles.
From this record, we cannot sufficiently credit Mr. Giles’s appellate issue claiming, in
substance, that he was making his decision whether to testify in real time while his lawyer put the
required warnings and advice on the record. If anything, the record indicates Giles had been
considering the issue for months, as he should have been doing, and as effective counsel would
have urged him to have done. Also, during jury selection, the prosecutor, the defense lawyer, and
the court all said this was not a death penalty case. See TEX. PEN. CODE § 12.31(b) (requiring this
disclosure). The statement that the punishment for capital murder could be death when the State
did not seek the death penalty did not sufficiently prejudice Giles here, though a developed record
on habeas may demonstrate otherwise.
Finally, considering the cumulative effect of counsel’s performance, and finding a record
insufficient to support deficient performance or prejudice, we overrule Giles’s fifth and sixth
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issues. See Thompson, 9 S.W.3d at 813–14 & n.6; Ex Parte Welborn, 785 S.W.2d 391, 393, 396
(Tex. Crim. App. 1990).
Giles did not preserve an objection to the constitutionality of his sentence.
In his final issue, Giles contends his sentence of mandatory life without parole is
unconstitutional. We need not address this issue because it was not preserved through a timely
request, objection, or motion in the trial court. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State,
135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.) (citing Rhoades v. State, 934 S.W.2d 113,
120 (Tex. Crim. App. 1996)).
The judgment should be modified to reflect the correct offense of conviction.
We note that the trial court’s judgment states the offense of conviction as “CAPITAL
MURDER TERRORISTIC THREAT.” The indictment charges Giles with murder in the course
of committing burglary. See PENAL § 19.03(a)(2). The court’s charge matches the indictment.
Therefore, we modify the judgment to remove reference to “TERRORISTIC THREAT” and add
reference to “BURGLARY” as the predicate crime for capital murder. See TEX. R. APP. P. 43.2(b);
Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526,
529–30 (Tex. App.—Dallas 1991, pet. ref’d).
Having overruled each of Giles’s issues, we affirm as modified.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180865F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DONALD RAY GILES, Appellant On Appeal from the Criminal District Court
No. 4, Dallas County, Texas
No. 05-18-00865-CR V. Trial Court Cause No. F16-24162-K.
Opinion delivered by Justice Carlyle.
THE STATE OF TEXAS, Appellee Justices Pedersen, III and Reichek
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
Reference to "TERRORISTIC THREAT" in the description of the offense of
conviction is removed and replaced with "BURGLARY."
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 3rd day of December, 2019.
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