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 2008-06

Elmer Robinson v. State ( 2008 )


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  •   Opinion issued June 5, 2008  



      



















      In The

    Court of Appeals

    For The

    First District of Texas



    NO. 01-04-00717-CR



    ELMER ROBINSON, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the 248th District Court

    Harris County, Texas

    Trial Court Cause No. 969154



    MEMORANDUM OPINION ON REMAND FROM

    THE COURT OF CRIMINAL APPEALS OF TEXAS  



    A jury convicted appellant, Elmer Robinson, of aggravated assault with a deadly weapon. Finding two felony enhancements true, the jury assessed punishment at confinement for 75 years. We previously held that the trial court did not abuse its discretion in denying appellant a hearing on his pro se motion for new trial, because he was represented by counsel when he filed that motion and he was not entitled to hybrid representation. Robinson v. State, No. 01-04-00717-CR, 2005 WL 1648185, at *2 (Tex. App.--Houston [1st Dist.] July 14, 2005), rev'd, 240 S.W.3d 919 (Tex. Crim. App. 2007). The Court of Criminal Appeals held that an appeal may be taken from a ruling on a pro se motion made by a defendant who has counsel. Robinson, 240 S.W.3d at 920-23. The Court of Criminal Appeals vacated our prior judgment and remanded the case to us. Id. at 923.

    On appeal, appellant complains of the denial of a hearing on his motion for a new trial and the denial of a mistrial after evidence of an extraneous offense was introduced. Appellant also requests that this court reform the trial court's judgment to reflect that appellant entered a plea of not true to the second enhancement paragraph.

    We modify the judgment and affirm as modified.

    BACKGROUND

    The Offense

    On the morning of November 22, 2003, after spending the night with friends, Debra Wiggins returned to the house she shared with appellant. Finding the front door to the home jammed, she climbed the fence and entered the backyard. She knew appellant would come to the backyard to "do what he do every morning." Shortly thereafter, appellant came to the backyard, where he and Wiggins began arguing, and a "tussle" ensued. At trial, Wiggins testified that appellant stabbed her in the neck with a knife. However, she testified that none of the knives admitted into evidence were used against her. According to Wiggins, appellant's live-in girlfriend, Tonya, ran down the street with the knife used to stab Wiggins, presumably to dispose of or hide it.

    Wiggins testified that she noticed blood shooting from her neck right away, and she tried to stop it with a towel. Appellant called 9-1-1, and an ambulance arrived. Wiggins testified that when the paramedics arrived, appellant was attempting to stop the bleeding. The police arrived after the paramedics. Two police officers who had responded to the 9-1-1 call testified at trial. One testified that appellant's shirt and pants were covered in blood, and the other testified that appellant's pants were soaked in blood. Appellant was arrested and charged with aggravated assault. Wiggins was hospitalized for a week.

    During the trial, Wiggins testified that what appellant does in the backyard is his work. When asked by the State what his work consisted of, Wiggins said, "Drugs." Appellant immediately objected, and the trial court called a bench conference. The court then instructed the jury to "disregard the last answer and not consider it for any purpose." Appellant promptly moved for a mistrial, but the trial court denied the motion.

    On June 17, 2004, the same day as his conviction, appellant filed a notice of appeal. Finding appellant indigent, the trial court signed an order on June 23, 2004, appointing appellate counsel. Appellant filed a motion for a new trial pro se, which was dated June 22, 2004, postmarked June 25, 2004, and received by the clerk on June 28, 2004.

    The Motion for New Trial

    Appellant's pro se motion for new trial alleged (a) ineffective assistance of counsel and (b) neglect of duty and official misconduct. As to his claims of ineffective assistance of counsel, appellant alleged that his attorney failed to: (1) adequately investigate and "prepare evidence favorable to defendant" in trial; (2) have expert witness testimony of Wiggins's wound compared to actual knives that were placed in evidence; (3) file fundamental pretrial motions, such as motions to discover or suppress evidence, or a motion in limine; (4) subpoena the paramedics who responded to the 9-1-1 call before the police arrived; (5) discuss defense strategy; (6) secure a discovery hearing; (7) object and request a limiting instruction regarding extraneous offenses committed by the defendant; (8) secure a magistrate reading, a probable cause hearing, due process, and a speedy trial; (9) object to admission of knives into evidence that were not the actual weapons allegedly used; (10) object to inadmissible evidence; and (11) adequately investigate and prepare evidence favorable to defendant for introduction at the punishment phase of trial. As to his claims of neglect of duty and official misconduct, appellant challenged: (1) the admission of extraneous offenses; (2) the commencement of trial on June 16, 2004, even though it had previously been reset to July 6, 2004; and (3) the lack of a pretrial hearing and announcement of "ready" by defense.

    Appellant's motion for new trial requested a hearing. It was verified by an unsworn declaration by appellant that appeared at the end of the document, in which he declared "under penalty of perjury that the forgoing [sic] is true and correct." (1) The trial court circled "denied" and signed the order that accompanied appellant's pro se motion for new trial. The court did not hold a hearing.

    Procedural History

    On appeal to this Court, appellant argued that the trial court abused its discretion by refusing to hold a hearing on his motion for new trial. (2) We held that, because appellant was represented by counsel, he was not entitled to hybrid representation and the trial court did not abuse its discretion in denying appellant's motion without a hearing. Robinson, 2005 WL 1648185 at *2.

    On discretionary review, the Court of Criminal Appeals explained that, because a defendant has no right to hybrid representation, "a trial court is free to disregard any pro se motions presented by a defendant who is represented by counsel." Robinson, 240 S.W.3d at 922. The Court further stated, "However, once a trial court actually rules on a pro se (or any) motion, we see no reason why that decision should be insulated from review on appeal." Id. In this case, the Court observed, the record did not show whether the court intended to rule on appellant's pro se motion or to "simply dispose of the appellant's motion by 'denying' it." Id.

    Unfortunately it is unclear from the record exactly which of those two options the trial court intended by making this simple circle and signing its name. It would obviously be better in the future if trial courts made it clear in the record exactly which of the two options they choose, but that is not the situation before us in this case.



    Rather than guess at the trial court's intention, however, we think a better solution would be to determine it. Therefore, we will remand the case to the Court of Appeals so that it may undertake to determine if the notation on the appellant's pro se motion for new trial is a ruling on the merits, or if the trial court intended to disregard the motion since the appellant was represented by counsel.



    Id. at 923. The Court remanded the case to us to determine whether the court intended to rule on appellant's pro se motion for new trial. Id. We are not able to determine the intent of the trial court from this record. Nor are we legally authorized to abate this case so that the trial court may tell us what it intended. Tex. R. App. P. 44.4 (remand permitted to remedy "erroneous action or failure or refusal to act"). If the trial court did not intend to rule on appellant's motion for new trial, then no issue is properly presented for our review, and we would overrule appellant's first issue. If the trial court did intend to rule on appellant's motion for new trial, then the issue is reviewable. Therefore, in the interest of judicial economy, we will assume without deciding that the trial court did intend to rule on appellant's motion, and we will determine whether appellant was entitled to a hearing on his motion for new trial.

    DISCUSSION

    Standard of Review

    Courts of appeals apply an abuse-of-discretion standard when reviewing a trial court's denial of a hearing on a motion for a new trial or a denial of a motion for mistrial. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (denial of motion for mistrial); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993) (denial of hearing on motion for new trial). When applying the standard, we must uphold the trial court's ruling if it lies within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In other words, viewing the evidence in the light most favorable to the ruling, we reverse only if the trial court's decision is arbitrary and unreasonable. Buerger v. State, 60 S.W.3d 358, 361 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd).

    Hearing on Motion for New Trial

    In his first issue, appellant contends that the trial court abused its discretion by refusing to hold a hearing on his motion for new trial. A motion for new trial must be: (1) timely filed, (2) properly presented, and (3) adequately verified or accompanied by an affidavit or unsworn declaration by an inmate. See Tex. R. App. P. 21.4, 21.6; Tex. Civ. Prac. & Rem. Code Ann. §§ 132.001-.003 (Vernon 2005); Owens v. State, 763 S.W.2d 489, 491 (Tex. App.--Dallas 1988, pet. ref'd).

    A defendant does not have an absolute right to a hearing on a motion for new trial. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). However, a defendant is entitled to a hearing on his motion for new trial if his motion and accompanying affidavit(s) "raise matters that are not determinable from the record that could entitle the accused to relief." Id. The motion and affidavit need not establish a prima facie case for a new trial; rather, they must merely reflect that reasonable grounds exist for holding that relief could be granted. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). An affidavit that is conclusory and unsupported by facts is not sufficient to put the trial court on notice that reasonable grounds for relief exist. Id.

    Here, the motion for new trial was timely filed, less than a week after appellant's conviction. It included a request for a hearing. It appears to have been presented to the trial court, which circled "denied" and signed the order. Although there was no affidavit attached, the motion was verified by way of an unsworn declaration by appellant that appeared at the end of the document, in which appellant declared "under penalty of perjury that the forgoing [sic] is true and correct." See Tex. Civ. Prac. & Rem. Code Ann. §§ 132.002-.003. Appellant's motion for new trial alleged ineffective assistance of counsel and "neglect of duty and official misconduct." To determine whether appellant was entitled to a hearing on his motion, we address each contention individually to determine whether it raises matters not determinable from the record upon which appellant could be entitled to relief.

    Neglect of Duty and Official Misconduct  

    With respect to his claims of neglect of duty and official misconduct, appellant challenged: (1) the admission of extraneous offenses; (2) the commencement of trial on June 16, 2004, even though the trial had previously been reset to July 6, 2004; and (3) the commencement of trial without a pretrial hearing and announcement of "ready" by defense.

    Appellant's argument about the admission of "extraneous offenses" appears to relate to admission of Wiggins's testimony that appellant sold drugs. When Wiggins testified that appellant's work was "drugs," appellant's attorney objected, and the trial court instructed the jury to disregard. Appellant's counsel also moved for a mistrial, which the court denied. Appellant challenged the court's denial of his motion for mistrial on appeal, and we address that issue below. Because appellant's complaint about the admission of this extraneous offense is determinable from the record, this allegation in his motion for new trial did not warrant a hearing. See Rozell, 176 S.W.3d at 230.  

    Appellant also complains that his case had been reset to July 6, 2004, but the case actually went to trial on June 16, 2004, and the trial court allowed the trial to begin without any pretrial hearings or announcement of "ready" by defendant. The record reflects no motion for continuance by the defense. Because appellant's allegations are conclusory and unsupported by facts which suggest that appellant was deprived of a fair trial or otherwise harmed, these allegations do not reflect that reasonable grounds exist for holding that relief could be granted. As to this part of the motion for new trial, the trial court did not abuse its discretion in denying a hearing. See Jordan, 883 S.W.2d at 665 (conclusory affidavit not sufficient to alert trial court that reasonable grounds for relief exist).

    Ineffective Assistance of Counsel

    As to his claims of ineffective assistance of counsel, appellant makes a number of conclusory allegations, none of which is supported by facts. For example, he states that counsel failed to secure a magistrate reading, a probable cause hearing, due process, and a speedy trial, without any factual support for those propositions. He complains that counsel failed to object to inadmissible evidence without specifying what evidence was inadmissible. He asserts that counsel failed to have expert witness testimony of Wiggins's wound compared to the actual knives that were placed in evidence, but he provides no factual support that such expert testimony could or does exist or what it would show. (3) He also alleges that counsel failed to investigate, conduct discovery, and obtain pretrial hearings. But he does not say why counsel's investigation was deficient, or what further investigation would have revealed. See Jordan, 883 S.W.2d at 665.

    Appellant alleges that counsel failed to object to the introduction of extraneous offenses against him, without identifying any specific extraneous offense. The record shows that counsel did, indeed, object to testimony that appellant sold drugs. When the trial court instructed the jury to disregard, counsel moved for a mistrial, the denial of which we address below. See infra.

    Appellant also complains that counsel failed to "subpoena witnesses that was [sic] on site before police arrive [sic], i.e., paramedics who witnessed victim laying in appellant's lap!" He asserted that the paramedics "could testify that "victim's head was laying [sic] on defendant's lap, accounting for the blood stains on defendant's pants." But the paramedics arrived after the assault, and they could not have offered testimony about whether or not appellant committed the offense. Even Wiggins testified that appellant attempted to stop the bleeding. This testimony does not support appellant's argument that his trial counsel was ineffective because it does not show how the outcome at trial would have been different if the paramedics had testified. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984) (holding that defendant alleging ineffective assistance of counsel must demonstrate: (1) counsel's performance failed to constitute reasonably effective assistance by falling below objective standard of reasonableness under prevailing professional norms and (2) there is reasonable probability that, but for counsel's deficient performance, result of proceeding would have been different). Therefore, the lack of the paramedics' testimony is not a matter upon which appellant could be entitled to relief, i.e., a new trial, and the court did not err in failing to grant a hearing based on this allegation. See Rozell v. State, 176 S.W.3d 230 (holding that defendant not entitled to hearing on motion for new trial unless he properly raises matters not determinable from the record, upon which he could be entitled to relief).

    Appellant further states that counsel failed to object to the admission of two knives that were not the actual weapons allegedly used. The record shows that appellant's attorney took the offering witness on voir dire, but failed or declined to object to the admission of the knives. The record is silent as to whether this was trial strategy or an error. However, Wiggins, clearly testified that neither knife was the weapon used against her. Although counsel's motivation for not objecting to the admission of this evidence is not determinable from the record, this allegation does not raise a matter upon which appellant could be entitled to relief. Id.

    We conclude that appellant's motion was conclusory in nature and not supported by factual allegations, and that it did not raise matters not determinable from the record upon which appellant could have been entitled to relief. We hold that the trial court did not abuse its discretion by denying appellant a hearing on his motion for new trial. We overrule appellant's first issue.

    Motion for Mistrial

    In his second issue, appellant complains that the trial court abused its discretion by not granting a mistrial after the State improperly introduced evidence of an extraneous offense. When, in response to the State's question, Wiggins testified that appellant's work was drugs, appellant's trial counsel immediately objected. The trial court conducted a bench conference off the record and then instructed the jury to disregard the witness's previous statement for all purposes.

    "Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses." Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). We presume that the instruction to disregard will be obeyed by the jury. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987). But an exception exists when a prosecutor makes a reference clearly calculated to inflame the minds of the jury or creates a harmful impression that is impossible to remove from a juror's mind. Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998).

    Appellant argues that the prosecutor intentionally elicited the improper testimony regarding the extraneous offense as an "underhanded ruse" to "[throw] a skunk into the jury box." Appellant further asserts that this testimony was clearly calculated to inflame the minds of the jury. Nothing in the record supports appellant's assertion. After the trial court's instruction to disregard Wiggins's testimony that appellant's work was drugs, there was no further mention of appellant's work or drugs at the trial.

    Because the trial court immediately instructed the jury to disregard Wiggins's reference to appellant's involvement with drugs and not to consider it for any purpose, and because we presume that the jury obeyed the trial court's instructions, we hold that the trial court did not abuse its discretion in denying the motion for mistrial. We overrule appellant's second issue.

    Reformation of Judgment

    In his third issue, appellant complains that the judgment should be reformed to reflect accurately his plea of "not true" to the second enhancement paragraph. Although the trial court's judgment indicates that appellant pleaded "true" to the second enhancement paragraph, the reporter's record and the court's charge to the jury reflects that appellant pleaded "not true." The State joins appellant in requesting that we sustain appellant's third issue.

    "An appellate court has the power to correct and reform a trial court judgment 'to make the record speak the truth when it has the necessary data and information to do so'. . . ." Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.--Dallas 1991, pet. ref'd)); see also Tex. R. App. P. 43.2(b).

    Because the record supports appellant's contention that the judgment does not accurately reflect his plea to the second enhancement paragraph, we sustain appellant's third issue. CONCLUSION

    We modify the trial court's judgment to show that appellant pleaded "not true" to the second enhancement paragraph. We affirm the judgment as modified.







    Sam Nuchia

    Justice



    Panel consists of Justices Nuchia, Keyes, and Bland.



    Do not publish. Tex. R. App. P. 47.2(b).





    1. The Civil Practice and Remedies Code provides that an unsworn declaration made by an inmate, in accordance with the form set out by statute, may be used in lieu of an affidavit or verification. Tex. Civ. Prac. & Rem. Code Ann. §§ 132.001-.003 (Vernon 2005).

    2. Appellant raised three issues on appeal: (1) the denial of a hearing on his motion for new trial; (2) the denial of his motion for mistrial; and (3) the need for reformation of the judgment. We initially addressed all three issues, but the Court of Criminal appeals reversed our decision based on our analysis of appellant's first issue only. Because the Court of Criminal Appeals vacated our prior judgment, we address all three issues again, in this memorandum opinion.

    3. This allegation is especially dubious in light of Wiggins's testimony that neither knife was the weapon used against her.