Terry Hubbard v. State ( 2010 )

Opinion issued August 12, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00210-CR

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Terry Hubbard, Appellant

V.

State of Texas, Appellee

On Appeal from the 273rd District Court

Shelby County, Texas

Trial Court Case No. 08CR-17,456A

MEMORANDUM OPINION

          The State charged Terry Hubbard with aggravated robbery as a habitual offender.  After trial, a jury found Hubbard guilty and assessed a sentence of life in prison—a punishment within the legislatively prescribed range for habitual offenders convicted of aggravated robbery.[1]  In three issues, Hubbard contends that (1) the trial court erred in failing to grant him a continuance due to an absent witness, (2) the trial court erred in refusing to submit a jury instruction on the significance of cross-racial identification; and (3) the sentence determined by the jury and imposed by the trial court violates the prohibition against cruel and unusual punishment under the Eighth Amendment of the United States Constitution.  We conclude that the trial court did not abuse its discretion in denying Hubbard’s motion for a continuance, that it did not err in refusing to submit the requested jury instruction, and that the sentence imposed does not violate the Eighth Amendment.  We therefore affirm.

Background

          On January 26, 2008, Moises Ramirez contacted his co-worker, Chris Robertson, about buying some stereo equipment.  Robertson expressed interest and invited Ramirez to his home to facilitate the purchase.  When Ramirez drove up to Robertson’s home, he encountered Robertson walking down the street with another man.  Robertson and the other man got into Ramirez’s car and gave him directions to the location of the stereo equipment.

During the drive, the man traveling with Robertson pulled out a gun.  He demanded money from Ramirez, and Ramirez gave the man his wallet.  The man passed the wallet to Robertson.  When Robertson could not find the $500 that Ramirez had agreed to pay for the stereo equipment, Ramirez told the men where they could find the money.  After Ramirez divulged the money’s location, the men forced Ramirez from his truck.

          Robertson put Ramirez’s truck in reverse and tried to back down the street but collided with a tree.  Robertson and the gunman left the truck, and the gunman fled on foot. Ramirez reported the incident to the police.  During the investigation, the police showed Ramirez a photo lineup including a photo of Hubbard, whom Ramirez identified as the gunman accompanying Robertson.

Robertson made a phone call to Ramirez after he learned that police officers had visited Ramirez’s home.  Robertson decided to cooperate with the police and implicated Hubbard in the robbery.  Further investigation revealed that Hubbard had been previously convicted of several offenses, most recently as a habitual offender. As a result, the police charged Hubbard with aggravated robbery as a habitual offender. 

          At trial, Ramirez identified Hubbard as the man who entered his truck with Robertson.  Robertson similarly testified that Hubbard, whom he had known for several years, was with him on the day of the robbery and had pulled a gun on Ramirez.  Robertson conceded his criminal past, current probation, and the likelihood that he would go to jail if he were convicted for his involvement in the robbery.  Ramirez also admitted his illegal immigration status.  

          At trial, Hubbard’s grandmother testified that Hubbard was at home with her on the day of the robbery.  Her testimony conflicted with that of the State’s witnesses.  After Hubbard’s grandmother testified, defense counsel indicated that he intended to call Hubbard’s girlfriend, Ami Murphy, as the only other witness.  Defense counsel had Murphy served with a subpoena before trial.  The day before trial began, however, Hubbard discovered that Murphy was missing.  On the first day of trial, he obtained a writ of attachment.  After hearing Hubbard’s motion for continuance, the trial court proceeded while police officers attempted to serve the writ.  At the close of the defense case, the court denied the continuance, but ruled that it would allow Murphy to testify if she was found before the State finished its rebuttal.  After the State’s rebuttal, the trial court called a brief recess.  The defense had no success in locating Murphy.  Following the recess, the trial court read the charge to the jury and counsel made their closing arguments.

          At several points during the trial, defense counsel discussed the issue of cross-racial identification.  During voir dire, counsel stated:

Defense counsel:   But I do want to talk to y’all about eyewitness testimony; especially what we call cross-racial identification. . . .

. . .

[O]ne of y’all talked about the racial issue.  Mr. Campbell, what do you think is a problem with the racial problem?

Juror:                   I just—show my knowledge, I guess, of watching TV.  I saw a deal on TV where the number one reason misidentifying black males.

Defense counsel:   Is anybody else familiar with those studies?

Defense counsel went on to address the jurors’ specific experiences with misidentification based on race.  He raised the issue again during his examination of one of the investigating officers:

Defense counsel:   My question was, sir: are there problems associated with [eyewitness testimony], and you said yes.  So my question to you is what are the problems associated with it that caused you to answer yes to that question?

Officer:                 Well, they get some details incorrect; like color, types of vehicles, just a matter of details.  But, it could cause a problem if they got some of the small details wrong.

Defense counsel:   What about situations where what I call cross-racial eyewitness testimony; where the race of the witness is one thing and the perpetrator is another?  Are you aware that there are certain problems with that that are over and above the regular eyewitness problem?  

Officer:                 I’ve heard there is, but I’ve never had that problem.  

          The trial court denied defense counsel’s request for a jury instruction on cross-racial identification but allowed him to raise the issue during closing argument.  Counsel explained to the jury:

Defense counsel:   Now, here’s the important thing.  Remember during voir dire when we talked about cross-racial identification and we talked about the problems that exist, or can exist . . . .  Now, the reason why the cross-racial identification is important is because people with different races look in and they focus on one thing.  Or they focus on what I call the major character.

          The jury found Hubbard guilty of aggravated robbery as a habitual offender and assessed a sentence of life in prison.  Hubbard timely appealed.

Discussion

I.       Denial of Motion for Continuance

          In his first issue, Hubbard contends the trial court erred by denying his motion for a continuance based on the absence of defense witness Ami Murphy.  See Tex. Code Crim. Proc. Ann. arts. 29.06, 29.13 (Vernon 2006).

A.      Standard of review

We review a trial court’s ruling to grant or deny a motion for a continuance for an abuse of discretion.  Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002).  An abuse of discretion occurs when the defendant was actually prejudiced by the trial court’s denial of a motion for a continuance. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). 

B.      Absence of material witness

Hubbard relies on articles 29.06 and 29.13 of the Texas Code of Criminal Procedure in contending that the trial court erred in denying his motion for continuance.  In interpreting article 29.06, The Court of Criminal Appeals has held that a defendant seeking a continuance because of a missing witness must show: (1) the defendant exercised due diligence in procuring the attendance of the witness, (2) the witness is not absent by procurement or consent of the defendant, (3) the motion was not made for the purpose of delaying the trial, and (4) the facts expected to be proved by the witness.  Harrison v. State, 187 S.W.3d 429, 434 (Tex. Crim. App. 2005).  Even if the defendant makes the requisite showing, however, the trial court still may deny the continuance “[i]f the evidence does not indicate a probability that the witness can be secured by a postponement, or if it appears that a continuance due to the absence of the witness would delay the trial indefinitely, the motion may be properly denied.”  Varela v. State, 561 S.W.2d 186, 191 (Tex. Crim. App. 1978), superseded on other grounds by Bodin v. State, 807 S.W.2d 313, 316 (Tex. Crim. App. 1991); see also Rodriguez v. State, 21 S.W.3d 562, 566 (Tex. App—Houston [14th Dist.] 2000, pet. ref’d) (holding that uncertainty surrounding witness’s availability to testify at trial constituted sufficient grounds for denial of motion for continuance; appellant had no knowledge of witness’s whereabouts and record did not show probability that witness would have been located if continuance was granted). 

The record fails to provide a basis for continuance in light of the circumstances surrounding Murphy’s absence.  Defense counsel obtained a writ of attachment as soon as he knew that Murphy would not testify in court of her own volition.  In seeking to serve the writ on Murphy, officers exhaustively searched areas that Murphy was known to frequent.  They also contacted officials in a neighboring city in an effort to locate Murphy.  Given that Hubbard had no information about Murphy’s location or her reason for leaving the area, nothing shows that a continuance would have aided Hubbard in securing her appearance.  Under these circumstances, Hubbard was not entitled to a continuance under article 29.06. See Rodriguez, 21 S.W.3d at 566 (concluding that trial court did not abuse discretion in denying continuance where attempts to locate witness had proven fruitless and nothing indicated that she likely would have been secured if trial were postponed).

Hubbard’s alternative ground asserted, article 29.13, provides:

A continuance or postponement may be granted on the motion of the State or defendant after the trial has begun, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.

Tex. Code Crim. Proc. Ann. art. 29.13.  This provision does not provide a basis for Hubbard’s request for continuance because it applies only to events that occur after the beginning of trial.  Hubbard knew that Murphy disappeared before the trial began.  Murphy’s absence thus does not constitute “some unexpected occurrence since the trial began.”  See id.

Neither article 29.06 nor article 29.13 provides a basis for Hubbard’s motion for a continuance.  We therefore hold that the trial court did not abuse its discretion in denying Hubbard’s motion for continuance. 

II.      Jury Charge Error

Hubbard contends that the trial court abused its discretion by refusing to submit his proposed jury instruction on cross-racial identification to the jury.

A.      Standard of review

We review a trial court’s decision not to include a defensive issue in the jury charge for an abuse of discretion.  Love v. State, 199 S.W.3d 447, 455 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).  A trial court abuses its discretion if its ruling is outside the zone of reasonable disagreement.  Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992).  

In order for charge error to be reversible, the error also must have resulted in harm.  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  Our review, then, involves two steps: first we determine whether error occurred and, if we conclude that it did, we determine whether it resulted in sufficient harm to justify reversal.  Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994). 

B. Instruction on cross-racial identification

Hubbard’s counsel requested a jury instruction like that proposed in the concurring opinion in United States v. Telfaire.  469 F.2d 552, 561 (D.C. Cir. 1972) (Bazelon, C.J., concurring).  Appellant’s proposed charge reads:

In this case, the non-accomplice identifying witness [Moises Ramirez] is of a different race than the defendant.  In the experience of many, it is more difficult to identify members of a different race than members of one’s own.  If this is also your experience, you may consider it in evaluating the witness’s testimony.  You must also consider, of course, whether there are other factors present in the case that overcome any such difficulty of identification.  For example, you may conclude that the witness has had sufficient contacts with members of the defendant’s race that he would not have greater difficulty in making a reliable identification.

          A jury charge is intended to set “forth the law applicable to the case[,] not expressing any opinion as to the weight of the evidence.”  Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007).  It must accurately state pertinent law and articulate all of the elements of the charged offense. Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). 

     A defendant is entitled to have the jury instructed on all defensive issues raised by the evidence “regardless of whether the evidence is ‘strong, feeble, unimpeached, or contradicted, and even when the trial court thinks that the testimony is not worthy of belief.’”  Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007).  But, “if the defensive theory is not explicitly listed in the penal code—if it merely negates an element in the State’s case, rather than independently justifying or excusing the conduct—the trial judge should not instruct the jury on it.”  Id. (citing Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998)).

     The issue of cross-racial identification is not grounded in the Texas Penal Code.  As set forth in the proposed instruction, the issue attacks a central element of the charged offense—namely, the identity of the defendant as the perpetrator.  Accordingly, it is subsumed in the general jury instruction given in this case:

If you entertain a reasonable doubt as to whether the defendant was present at the time and place when and where the crime occurred, you will find the defendant not guilty.

Because the defensive issue is adequately accounted for in the general charge to the jury, a special instruction for the issue of cross-racial identification was unnecessary.  See Walters, 247 S.W.3d at 212; Giesberg, 984 S.W.2d at 250.  The trial court did not err in refusing the proposed instruction.

III.    Cruel and Unusual Punishment

Hubbard finally contends that the trial court imposed a sentence of life in prison for aggravated robbery in violation of the Eighth Amendment.  See U.S. Const. amend. VIII.  Generally, a punishment that falls within the legislatively prescribed range, and that is based upon the sentencer’s informed normative judgment, is unassailable on appeal.  Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex. Crim. App. 2006).  The Supreme Court of the United States has used three proportionality criteria to review Eighth Amendment complaints: (1) the gravity of the offense and the harshness of the punishment, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for the same offense in other jurisdictions.  Solem v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3011 (1983).  The court reviewing the challenge considers the second and third criteria only if the first is met.  See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992)  Satisfying the initial criterion requires the sentence to be grossly disproportionate to the crime—that is, when the severity of the sentence is extreme when objectively compared to the gravity of the offense.  See id.; Hicks v. State, 15 S.W.3d 626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  The gravity of the offense is determined by evaluating the harm caused or threatened and the offender’s culpability.  Dale v. State, 170 S.W.3d 797, 800 (Tex. App.—Fort Worth 2005, no pet.).

The jury found Hubbard guilty of aggravated robbery, and Hubbard pleaded “true” to two enhancement paragraphs that detailed two prior convictions for burglary of a building and another prior conviction for aggravated assault that was enhanced because of his status as a habitual offender.  Under those circumstances, the legislatively prescribed punishment ranges from twenty-five to ninety-nine years or life in prison. The jury returned a verdict of life in prison.

Hubbard’s prior offenses extend beyond those listed in the indictment, and the jury was free to consider evidence of those additional crimes in determining Hubbard’s sentence.  Under a recidivist statute such as the Texas habitual offender statute, a sentence is “based not merely on that person’s most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes.”  Rummel v. Estelle, 445 U.S. 263, 284, 100 S. Ct. 1133, 1145 (1980); see McGruder, 954 F.2d at 316.  Based on Hubbard’s status as a habitual offender, the State “is entitled to place upon him the onus of one who is simply unable to bring his conduct within the social norms prescribed” by Texas criminal law.  See Rummel, 445 U.S. at 284, 100 S. Ct. at 1144.  “[The] primary goals [of a recidivist statute] are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time.”  Id. at 284, 100 S. Ct. at 1144–45.  “[T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.”  Id. at 285, 100 S. Ct. at 1145.

The severity of the sentence is objectively not extreme when viewed in light of the gravity of the offense and Hubbard’s admitted status as a habitual offender.  It is therefore not a punishment that is grossly disproportionate to the crime.  Hubbard fails to satisfy the first prong of Solem.  We hold that Hubbard’s life sentence does not violate the Eighth Amendment.

Conclusion

We hold that the trial court did not err in denying Hubbard’s motion for continuance.  We further hold that the trial court did not abuse its discretion in denying Hubbard’s requested jury instruction.  Finally, we hold that the punishment assessed by the jury and imposed by the trial court does not violate the Eighth Amendment.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Sharp.

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

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[1]  The Supreme Court of Texas ordered the transfer of this appeal from the Twelfth Court of Appeals to this Court.