Anthony Gustavo Chavez v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Anthony Gustavo Chavez

Appellant

Vs.                   No. 11-01-00002-CR B Appeal from Scurry County

State of Texas

Appellee

The jury convicted appellant of possession of a controlled substance in a correctional facility.  The jury found the enhancement paragraphs to be true and assessed his punishment at 60 years confinement.  In four points of error, appellant argues that the State made an impermissible jury argument, that the trial court erred in admitting evidence of appellant=s prior conviction for impeachment, that the trial court erred in denying his request for appointment of new trial counsel, and that he received ineffective assistance of counsel.  We affirm.

There is no challenge to the sufficiency of the evidence.  The record shows that appellant was an inmate in the Texas Department of Criminal Justice and that he was being held in administrative segregation for his safety.  Donald R. Pavlovsky, a correctional officer assigned to administrative segregation, testified that on May 24, 1999, he took appellant to the shower and then conducted a search of appellant=s cell.  While searching appellant=s cell, Officer Pavlovsky found a Acoax cable connector@ and a Amarks-a-lot.@  The cable connector and the marker both contained a Alatex looking balloon@ inside. Officers found a Agreen leafy substance@ inside of the latex balloon that was later determined to be marihuana.  The following day, Sergeant Darry Thompson went to appellant=s cell at appellant=s request. Appellant gave Sergeant Thompson some toilet paper that contained a Agreen leafy substance,@ which was also found to be marihuana.

Appellant testified at trial that he did possess marihuana in the correctional facility but that his possession was justified. Appellant stated that he was being threatened by gang members and that there were  two Ahits@ on his life.  One of the Ahits@ on his life was by a person who used the nickname ACrunch.@ Appellant testified that marihuana was used as part of a bartering system.   Appellant said that he possessed the marihuana to gain information and learn the identity of ACrunch.@  Appellant then intended to give ACrunch@ marihuana to persuade him to leave appellant alone.

In his first point of error, appellant argues that the trial court erred in overruling his objection to the State=s impermissible jury argument.   In the closing argument of the guilt/innocence phase of the trial, the State made the following argument:

If you buy into this claim of necessity, then what the Charge says you are doing is you are making him not subject to criminal prosecution.  Not subject to criminal prosecution for violating a law and possessing a controlled substance.  Let me tell you what you will be doing if you do say that he is not subject to criminal prosecution and that you will buy this when there=s not any corroboration of his claim at all.  He brings you no witnesses to even substantiate one single thing he says. Then you will be telling all inmates it=s okay, you can possess a controlled substance in the penitentiary and all you have to do is concoct a story that someone is out to get you; that you have a family member out in the free world somewhere who=s got this hit out on you because we haven=t heard any shred of evidence of any of his claims except from him.

So [all] any inmate has to do is come up with a story like that, and then they can possess contraband in the penitentiary because they might use that contraband to trade for information.  They can possess weapons in the penitentiary because of that necessity.  If they make up a story it=s a necessity I have to have this weapon then that=s okay, and they would not be subject to criminal prosecution.  They would be able to assault correctional officers and be able to say, I had to do it. Someone told me that if I didn=t assault that officer, they were going to kill me.

 A jury argument must fall within one of the four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Cr.App.2000). Appellant specifically argues that the prosecution=s closing argument injected new, harmful, and speculative facts into the case. 

Appellant=s trial counsel argued during his closing argument that appellant possessed the marihuana out of necessity to protect his life from Aimminent harm.@  Appellant=s trial counsel further argued that appellant=s possession of the marihuana was Aimmediately necessary@ to find out the identity of ACrunch.@  The State=s argument was in response to the argument of appellant=s trial counsel.  See Coble v. State, 871 S.W.2d 192 (Tex.Cr.App.1993), cert. den=d,  513 U.S. 829 (1994).  Appellant=s first point of error is overruled.

In his second point of error, appellant argues that the trial court erred in admitting a prior conviction used for impeachment. Appellant=s trial counsel objected to the admission of a March 13, 1986, conviction for aggravated robbery, citing TEX.R.EVID. 609.  Rule 609 provides in relevant part:

(a) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.           

(b) Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. 

The trial court found, after testimony from appellant, that it had not been more than ten years since appellant was released from confinement for that conviction.  The trial court further found that that conviction was not too remote to be used for impeachment.   Appellant specifically argues that the trial court did not conduct the Rule 609 balancing test to determine if the probative value was outweighed by the prejudicial effect.   However, the record demonstrates that the trial court did conduct the balancing test. The trial court stated:

And just for the record, let me also say that I have also, at the request of the Defense, weighed and determined that the probative value of convictions is not substantially outweighed by the prejudicial effect they may have in front of the jury and, therefore, for impeachment purposes you may offer them.

Appellant=s second point of error is overruled.

Appellant argues in his third point of error that the trial court erred in denying his pro se motion requesting new appointed counsel. Appellant argues that his trial counsel failed to communicate with him in a meaningful manner and that trial counsel divulged all the mitigating factors to the State which prejudiced his defense.

The trial court has discretion to determine whether counsel should be allowed to withdraw from a case.  King v. State, 29 S.W.3d 556, 566 (Tex.Cr.App.2000); Green v. State, 840 S.W.2d 394, 408 (Tex.Cr.App.1992), cert. den=d, 507 U.S. 1020 (1993). Personality conflicts and disagreements concerning trial strategy are typically not valid grounds for withdrawal. King v. State, supra.  A trial court has no duty to search for counsel agreeable to the defendant.  King v. State, supra.   The burden is on the defendant to show that he is entitled to change of counsel. Webb v. State, 533 S.W.2d 780, 784 (Tex.Cr.App.1976).

            Appellant=s trial counsel testified at a hearing on the motion requesting new appointed counsel that he discussed appellant=s case with the State in negotiating a plea bargain.  After the plea negotiations, the State offered appellant a plea bargain agreement in which he would receive 30 years confinement.  Appellant rejected this offer.  Appellant has not shown that the trial court abused its discretion in denying his request for new counsel.  Appellant=s third point of error is overruled.

Appellant argues in his fourth point of error that he received ineffective assistance of counsel.  In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).  We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991).

Appellant first contends that his trial counsel was ineffective because he failed to make a proper objection to the State=s improper jury argument during the punishment phase of the trial.  The State argued that the jury should send appellant a message by its sentence that the community is Afed up@ with his behavior.   The State also argued that the jury would be sending a message to the other inmates and to prison employees that the employees would be protected.  The State=s argument was a permissible plea for law enforcement.  Borjan v. State, 787 S.W.2d 53 (Tex.Cr.App.1990).  Appellant=s trial counsel was not ineffective in failing to object to the argument.

Appellant also argues that,  during its jury argument at punishment, the State commented on his failure to testify at the punishment phase of trial.  Appellant complains about the following:  A[i]n helping you determine what the appropriate penalty is sometimes it=s  - it=s a help to think about who you did not hear from.@ However, in reviewing the State=s entire jury argument, the State went on to address several people whom appellant did not call to testify on his behalf at punishment, such as a teacher, a work supervisor, or a priest. Appellant=s trial counsel was not ineffective in failing to object to the State=s argument.

Appellant next complains  that his trial counsel was ineffective in failing to object to the pen packet which contained impermissible information about the underlying facts of his prior offenses and in failing to object to the State=s closing argument referring to the pen packets.  During closing argument at the punishment phase of the trial, the State asked the jury to A[t]ake a look at the Pen packets that are there...and you will see that [appellant] threatened someone with scissors if they did not give him money.@  The record shows that the indictment from appellant=s previous conviction was admitted as part of the pen packet.  The indictment alleged that appellant, while in the course of committing theft of property, used and exhibited a deadly weapon, scissors.  The indictment in a prior final conviction is admissible at the punishment phase of a trial.  Fairris v. State, 515 S.W.2d 921 (Tex.Cr.App.1974); Levy v. State, 860 S.W.2d 211(Tex.App. ‑ Texarkana 1993, pet=n ref=d).  Appellant=s trial counsel was not ineffective in failing to object to the admission of the pen packet and in failing to object  to the State=s closing argument referring to the properly admitted evidence.

Appellant contends that his trial counsel was ineffective because he failed to preserve error by using a peremptory strike after the trial court=s denial of his challenge for cause of a venire member who ultimately was a member of the jury.  During voir dire, a venire member stated that she worked for Western Texas College and that she taught classes at the prison.  When questioned by the State, the venire member stated that she would be able to follow her oath and the law and that she would be a fair and impartial juror. Appellant=s trial counsel asked if her job would affect her serving on  the jury, and the venire member stated that she Awould like to think it wouldn=t.@  She went on to say that she would prefer not to serve because she had some safety concerns.   While making his challenge for cause, appellant=s trial counsel stated that he thought the venire member would be an Aexcellent juror@ and would Amore than likely tend to favor [appellant] over the State based on what she said.@ Appellant has not overcome the presumption that his trial counsel=s decision not to use a peremptory strike was sound trial strategy.

Appellant also alleges that his trial counsel was ineffective because trial counsel did not adequately question the jury panel during voir dire and because trial counsel told the jury panel prejudicial information during voir dire.  Appellant was charged with possession of a controlled substance in a correctional facility.  Appellant=s trial counsel told the jury panel at the outset of his voir dire that, because of the charged offense, the jury panel would know that appellant had been convicted of a crime and that, Aif you have a problem with that, now is the time to ask questions.@ Appellant=s trial counsel went on to question the jury panel on several different pertinent areas. Appellant has not shown that his trial counsel was ineffective in conducting his voir dire examination.

Finally, appellant complains that his trial counsel=s overall representation undermines confidence in the outcome of the trial.  After reviewing the record, we find that appellant has not shown that his trial counsel=s performance fell below an objective standard of reasonableness.  Appellant=s fourth point of error is overruled. 

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

September 19, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.