Byron Keith Lee v. State ( 1995 )

Lee-BK v. State

IN THE

TENTH COURT OF APPEALS

No. 10-93-211-CR

     BYRON KEITH LEE,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 339th District Court

Harris County, Texas

Trial Court # 599128

O P I N I O N

      Appellant Lee appeals his conviction for delivery of cocaine, enhanced, for which he was sentenced to eighteen years in prison. On May 23, 1991, Officer Williams of the Houston Police Department was working undercover. He was in undercover dress and riding a bicycle. Williams saw Appellant standing in a yard with several others. He rode over to him and, after exchanging greetings, told Appellant he needed a "twenty" (street slang for twenty dollars worth of cocaine). Appellant told Williams to come into the yard, then went into the house. He returned minutes later carrying a ziplock bag of what appeared to be crack cocaine. Appellant handed one rock of cocaine from the bag to Williams. Williams paid and then rode off. He called the arrest team and Appellant was immediately arrested. The rock tested to be 213.4 milligrams of 97.5% pure cocaine. Appellant was indicted, convicted, and assessed a sentence of eighteen years.

      Appellant appeals on five points of error.

      Point one: "The trial court erred in denying Appellant's motion for continuance because of injury to defense counsel."

      Point two: "Appellant received ineffective assistance of counsel at trial because of trial counsel's injury at the time of jury selection."

      Point three: The trial court erred in denying Appellant's motion for a new trial because of the error in originally denying Appellant's motion for continuance."

      The offense was committed May 23, 1991. Trial counsel filed four motions for continuance, the first three of which were granted. The fourth motion, filed the morning of trial, requested continuance because trial counsel had dislocated her shoulder earlier that morning. The motion was heard by Judge Jimmy James and was denied. After jury selection, counsel re-urged her motion before Judge Guarino (who tried this case), who also denied the motion.

      Appellant filed a motion for new trial based on counsel's performance, at which counsel was the only witness. Counsel testified that when she awoke at 8:30 on the morning of trial, her shoulder dislocated. She said this was a common occurrence and that she had never sought medical treatment for the problem. This time, however, the pain was intense and lasted for thirty seconds to a minute before the shoulder "went back in." Counsel then dressed, drove to court, and prepared a typed motion for continuance listing her dislocated shoulder as reason for the continuance. The motion was time-stamped at 9:15 a.m.—forty-five minutes after counsel experienced the dislocation. Counsel testified she sought the continuance, not because of the pain, but because of the trauma she had suffered from the earlier dislocation.

      Voir dire did not start until 10:30 a.m., two hours after the dislocated shoulder had "gone back in," and counsel's own voir dire did not start until 11:30 a.m., three hours after the dislocation. Although she did not do so, counsel contends she should have challenged for cause a Mr. Schoville who had indicated "he could not acquit someone who had been previously convicted." After her testimony the trial judge, who had witnessed her performance throughout the trial, stated that counsel "very effectively and did very professionally represent the defendant," and denied Appellant's motion for a new trial.

      In Strickland v. Washington, 466 U.S. 668, the Supreme Court devised a two-part test for the analysis of claims of ineffectiveness of counsel. The defendant must first show that counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment. In making this finding, the appellate court employs a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. If the defendant demonstrates that counsel's performance was in fact deficient, the court must move to the second part of the two-part test, and evaluate whether the deficient performance was so serious as to deprive him of a fair trial.

      It is impossible to judge the validity of Appellant's claims of ineffectiveness in not challenging juror Schoville, as the appellate record does not include juror information cards, or the state's and defense's strike lists. We cannot determine whether counsel struck others similar to Mr. Schoville, or how Mr. Schoville compared to other jurors who were struck or seated. The appellate record must contain all matters essential to resolution of the points of error raised on appeal. Valenty v. State, 822 S.W.2d 805 (Tex. App.—Fort Worth); Skinner v. State, 837 S.W.2d 633 (Tex. Crim. App.).

      This record reflects that trial counsel conducted a thorough voir dire examination of the panel, vigorously cross-examined the State's witnesses, and made appropriate objections. Counsel was well prepared, familiar with the facts of the case, and we hold that the totality of counsel's representation reveals that she was not ineffective.

      The granting or denial of a motion for continuance is vested in the sound discretion of the trial court and reversal of a judgment is justified only when it is shown that the trial court has abused its discretion. Rosales v. State, 841 S.W.2d 368 (Tex. Crim. App.).

      Counsel testified she filed for a continuance not because of the pain she was suffering during trial, but because of trauma from the one-half minute to one minute painful episode which occurred hours prior to trial. This case had been pending twenty-six months, and had been delayed by counsel's prior motions for continuance. Counsel, despite her painful episode at 8:30 a.m., was able to dress, drive to court, and prepare a motion for continuance in only forty-five minutes after the dislocation.

      The trial judge did not abuse his discretion in denying the motion for continuance. Harris v. State, 516 S.W.2d 932 (Tex. Crim. App.); Gray v. State, 477 S.W.2d 635 (Tex. Crim. App.); Medrano v. State, 768 S.W.2d 502 (Tex. App.—El Paso).

      Points one, two, and three are overruled.

      Point Four: "The trial court erred in refusing to instruct the jury to disregard Officer Curry's testimony, in general terms about what is ``common' as to sellers of narcotics, in order to rebut the fact that the large quantity of crack cocaine allegedly on Appellant was not recovered at the time of arrest, over defense counsel's sustained objection as to relevancy."

      Officer Williams testified Appellant sold him a rock of cocaine out of a baggie containing 35 to 70 rocks of cocaine. Defense counsel made much of the fact that these rocks were never recovered, in her cross examination of both Officer Williams and Officer Curry.

      In response on redirect of Officer Curry, the State asked him:

QAre you familiar with the way transactions are done at street level?

AYes, sir.

QHow common is it on a buy bust operation to buy dope from somebody and they have their stuff there with them?

AYou run about a less than 50 percent chance of him having it on him.

QSo he would have his dope hidden somewhere else?

[DEFENSE COUNSEL]: Objection, relevancy.

THE COURT: Sustain the objection.

[DEFENSE COUNSEL]: Ask for the instruction to disregard it.

THE COURT: Denied. Go ahead.

      Tex. R. Crim. Evid. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

      The defense was trying to discredit Officer Williams' testimony by focusing on the fact that the police never recovered the baggie containing the additional rocks of cocaine. The State, in response, sought to show drug dealers did not keep cocaine on or near their person. Officer Curry never answered the question, thus the court could have determined that the jury needed no instruction.

      The trial court did not err in denying an instruction to disregard. In any event, any error was harmless. Tex. R. App. P. 81(b)(2).

      Point four is overruled.

      Point five: "The trial court erred in requiring Appellant to be sworn a second time before testifying after trial counsel asserted, in front of the jury, that he had already been sworn, thus demonstrating the trial court's opinion that Appellant was unworthy of belief before he was permitted to speak."

      Appellant was sworn with other witnesses early in the trial. After six defense witnesses had testified, defense counsel called Appellant:

THE COURT: Come up here, raise your right hand and be sworn.

[DEFENSE COUNSEL]: He was sworn earlier, Your Honor.

THE COURT: Well, I didn't see that. I want him sworn again. Come on around here. Have a seat and talk loud and clear so the jury can hear whatever you have to say, Mr. Lee. You may proceed counselor.

Counsel failed to preserve any error in failing to object. Tex. R. App. P. 52(a). In any event, any error was harmless. Id. 81(b)(2).

      Point five is overruled. The judgment of the court is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 15, 1995

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