Daniel Moses Scope v. State ( 2010 )

Opinion issued August 12, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00824-CR

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DANIEL MOSES SCOPE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Case No. 1145238

MEMORANDUM OPINION

          Appellant Daniel Moses Scope was indicted for aggravated robbery.  A jury convicted Scope of the lesser-included offense of aggravated assault with a deadly weapon, and the trial court assessed punishment at 20 years’ confinement in prison.  See Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2009).  In two issues, Scope argues that the prosecutor engaged in intentional misconduct by questioning Scope about the differences in the punishment ranges for aggravated robbery and for aggravated assault and by implying that Scope was previously convicted of aggravated assault.  Scope failed to preserve the errors alleged in these two issues, and thus they have been waived.  In a third issue, Scope contends that he received ineffective assistance of counsel because his trial counsel elicited admissions from him about prior convictions for theft and for possession of a controlled substance.  We overrule this issue because a trial court would not have abused its discretion in admitting evidence of the prior convictions, and therefore trial counsel is presumed to have employed a reasonable trial strategy in this regard.  Accordingly, we affirm.

Background

The Complainant’s Account of the Shooting

          On December 3, 2007, Scope called complainant Dillon Keith to purchase cocaine.  Keith testified that he had sold cocaine to Scope before, and on this occasion Scope tried to negotiate a better price.  They met in front of Scope’s apartment complex.  According to Keith, Scope got into Keith’s car and almost immediately put a gun to Keith’s neck and demanded his backpack, which ordinarily contained his possessions including any cocaine or marijuana he might have for sale. He tried to convince Scope to put the gun down, reminding Scope that he knew his friends, where he lived, and his phone number.  He then “pancaked” Scope’s gun between his hands and wrested it away.  As he tried to push Scope out of the car, Scope said, “Don’t get shot,” pulled out a second gun, and shot Keith.  Keith climbed out of the window and ran around the car to confront Scope.  After a brief struggle, Keith felt a gun at his neck, heard a shot, and fell to the ground. He then watched Scope take his backpack from the car and leave.  Keith testified unequivocally that Scope shot him without provocation and left him paralyzed from the neck down.

          A resident of the apartment complex found Keith and called 9-1-1.  The resident testified that Keith said he was shot by “D,” referring to Scope by a nickname, and that “D’s” phone number was in his cell phone.  The paramedics who responded to the 9-1-1 call took Keith to the hospital.

Scope’s Account of the Shooting

          Scope testified in his own defense and also presented the testimony of another apartment resident who heard gunshots but testified that she did not see the shooting and had never seen Scope before in her life.  Scope’s account differed greatly from Keith’s.  Scope testified that he met Keith to buy cocaine and that Keith attempted to overcharge him.  Scope conceded that he used profanity to assault Keith verbally, but testified that it was Keith who pulled a gun on him.  Then, while the men wrestled for the gun, the gun fired and Keith was shot.

Scope insisted that Keith was still holding the gun when it went off—that Keith shot himself causing an entry wound in his lower right side and an exit wound through Keith’s left hip.  He also said that Keith climbed out of the window and came around the back of the car to further attack Scope.  He pushed Keith to the ground, where he dropped the gun.  Scope then picked up the gun, shot Keith, and left with the gun.  The next day he put the gun in a dumpster.

Although Scope testified that he shot Keith because he had feared for his life, on cross-examination he agreed that he shot an unarmed man, albeit in claimed self-defense.  Scope said he did not intend to shoot Keith or to rob him.

Scope admitted that he had previously been convicted of possession of a controlled substance and theft.

The Police Investigation

Houston Police Officer W. Wilson responded to the 9-1-1 call.  He investigated the scene and found three spent shell casings, including one found in the driver’s seat.  Wilson testified that his partner found a small plastic bag of cocaine near the front passenger seat on the floorboard.  He also testified that Keith’s hands were not tested for gunpowder residue, because he was already on the way to the hospital.

          Houston Police Sergeant C. Howard investigated the incident.  After Keith told him the nickname of the person who shot him, Howard compiled a photographic lineup, from which Keith immediately identified Scope as his attacker. Approximately ten days after the shooting, Howard went to Scope’s home and arrested him.  Scope consented to a search of his bedroom, where Howard found a green-and-black backpack.  Keith later said that was not the backpack taken from his car. 

          Howard brought Scope to the police station, where Scope gave a statement, denying he was present at the scene of the shooting. Howard testified, without objection, that he did not believe Scope’s statement.  Scope testified that he was not truthful with the police because he was scared about his involvement in a drug deal.  Scope insisted that he was telling the truth at trial and that Keith was lying.

Prosecutorial Misconduct Allegations

In his first two issues, Scope contends that the prosecutor engaged in intentional misconduct by questioning him during the guilt-innocence phase of trial about his awareness of the punishment range for the lesser-included offense of aggravated assault.[1]  To preserve error for prosecutorial misconduct, an appellant must (1) make a timely and specific objection; (2) request an instruction to disregard the matter improperly placed before the jury; and (3) move for a mistrial.  See Tex. R. App. P. 33.1(a); Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).  “It is well settled that when appellant has been given all the relief he requested at trial, there is nothing to complain of on appeal.”  Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (holding that appellant failed to preserve error as to State’s improper jury argument because his objection was sustained and he did not move for mistrial).

An objection at trial must comport with the complaint on appeal.  Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).  Thus, an appellate complaint about prosecutorial misconduct must be supported by an objection in the trial court that also specified prosecutorial misconduct.  Clark v. State, 305 S.W.3d 351, 355 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Shelling v. State, 52 S.W.3d 213, 223–24 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).  In Shelling, a murder case, the evidence showed that the defendant carefully followed the O.J. Simpson trial during a time when he allegedly abused and stalked his wife and murdered her friend. Shelling, 52 S.W.3d at 216–17.  In its opening statement, the State asserted that there were numerous similarities between the defendant’s case and the O.J. Simpson case.  Id. at 223.  The defendant’s attorney objected, saying, “I would continue to object to any O.J. reference,” and the trial court overruled his objection.  Id.  The defendant’s attorney then asked for a running objection, and the trial court said, “Yes.”  Id.  This Court held that the defendant had waived his appellate complaint about prosecutorial misconduct because his trial objection was general and did not specify prosecutorial misconduct.  Id. at 224. 

Similarly, the defendant in Clark argued on appeal that the trial court had erred “by constantly allowing the State to badger, harass, and physically intimidate him” during his capital murder trial.  Clark, 305 S.W.3d at 354.  On appeal, the defendant argued that his trial was fundamentally unfair due to prosecutorial misconduct.  Id. at 355.  However, at trial the defendant repeatedly objected on the grounds of “sidebar, argumentative, mischaracterization, invading the province of the jury, and badgering.”  Id.  Noting that the defendant did not object to prosecutorial misconduct at trial and that his appellate issues did not comport with his trial objections, the court of appeals held that the defendant had waived his complaint.  Id.

          Here, during cross-examination, the prosecutor asked Scope if he knew the difference in punishment ranges between aggravated robbery and aggravated assault.

STATE:      And actually the reason you’re bringing out this information about an aggravated assault rather than an aggravated robbery is you know the punishment range changes, right?

DEFENSE COUNSEL: Object, Your Honor.  Calls for him to understand . . . make a legal conclusion, I should say.

TRIAL COURT:  Overruled.  You can—

STATE:      You understand that you go from one penalty to the next, one crime charge to the next, aggravated robbery is five to life, aggravated assault is two to 20. You understand there’s a big difference there, right?

SCOPE:      Yes, sir.

STATE:      And you know that because you’ve had that benefit before, right?

DEFENSE COUNSEL: Object, Your Honor.

TRIAL COURT:  Sustained as to the form of the question.

DEFENSE COUNSEL: Ask that the jury be instructed to disregard the question.

TRIAL COURT:  Jury’s instructed to disregard the last question from the prosecutor.

STATE:      Now, clearly, you’re motivated to say what you’re saying because, one, it’s going to lessen the punishment range, right?

SCOPE:      No, sir.

STATE:      And, two, because it gives you the opportunity to raise self-defense as an issue?

SCOPE:      No, sir.

          First, Scope challenges the question inquiring if he knew about the difference in punishment ranges.  Scope objected to this question only on the grounds that it called for a legal conclusion, and the trial court overruled his objection. He did not specify “prosecutorial misconduct” as a basis for his objection.  Scope’s appellate issue does not comport with his trial objection.  See Wilson, 71 S.W.3d at 349.  Scope’s trial objection did not preserve the appellate issue he raises.  See Shelling, 52 S.W.3d at 223–24; Clark, 305 S.W.3d at 355; accord Hajjar, 176 S.W.3d at 566 (holding prosecutorial misconduct issues waived because defendant made no objections on that basis in trial court).  We hold that Scope has waived his first issue.

In his second issue, Scope challenges the question inquiring if he had benefited from a difference in punishment ranges in the past.  As to this question, Scope made only a general objection, specifying no basis for his objection at all.  The trial court sustained his objection “as to the form of the question” and instructed the jury to disregard it.  Scope failed to request a mistrial.  Thus, the trial court gave Scope all the relief he requested. We hold that Scope has waived this issue.  See Cook, 858 S.W.2d at 473 (“It is well settled that when appellant has been given all the relief he requested at trial, there is nothing to complain of on appeal.”).  We overrule Scope’s second issue.

Ineffective Assistance of Counsel

In his third issue, Scope contends that he received ineffective assistance of counsel when his trial counsel questioned him about prior convictions for possession of a controlled substance and for theft from a person.  Scope argues that the State would have been precluded from introducing these convictions into evidence, and therefore no reasonable trial strategy could support his trial counsel’s decision to put these convictions before the jury.

Standard of Review

The standard of review for claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984), and Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To prevail on his claims, an appellant must first show that his counsel’s performance was deficient.  Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833.  “Specifically, appellant must prove, by a preponderance of the evidence, that his counsel’s representation fell below the objective standard of professional norms.” Bone, 77 S.W.3d at 833.  “Second, appellant must show that this deficient performance prejudiced his defense.” Id.  This means that appellant “must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.”  Id. (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)).  A “reasonable probability” is one “sufficient to undermine confidence in the outcome.”  Bone, 77 S.W.3d at 833. Thus, the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.

There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and the appellant must overcome the presumption that the challenged action might be considered sound trial strategy. Id., 466 U.S. at 689, 104 S. Ct. at 2065.  To overcome the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).  When determining the validity of an ineffective assistance of counsel claim, judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  The record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance of counsel claim.  See Bone, 77 S.W.3d at 833. Based on such a record, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court.  Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  When the record is silent as to trial counsel’s strategy, we will not conclude that trial counsel’s assistance was ineffective unless the challenged conduct was “‘so outrageous that no competent attorney would have engaged in it.’”  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

Admission of Prior Convictions

          Eliciting testimony from the defendant as to his own prior convictions can be a matter of sound trial strategy, if the prior convictions are admissible.  Martin v. State, 265 S.W.3d 435, 443 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Rodriguez v. State, 129 S.W.3d 551, 558–59 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).  However, if prior convictions are inadmissible, there can be no reasonable trial strategy for introducing them before the jury.  Robertson v. State, 187 S.W.3d 475, 485–86 (Tex. Crim. App. 2006); Martin, 265 S.W.3d at 443; Rodriguez, 129 S.W.3d at 559.

A trial court has wide latitude to admit or exclude evidence as it sees fit. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992).  As long as the trial court’s ruling was within the zone of reasonable disagreement, an appellate court will not disturb it.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).

Rule 609 provides that evidence of a witness’s prior convictions is admissible for purposes of impeachment if the crime was a felony or a crime of moral turpitude and if the trial court determines its probative value outweighs its prejudicial effect.[2]  Tex. R. Evid. 609(a); Davis v. State, 259 S.W.3d 778, 780–81 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).  However, such evidence is inadmissible if ten or more years have passed since the conviction date or the witness’s release from confinement, whichever is later, unless the court determines the probative value substantially outweighs its prejudicial effect.  Tex. R. Evid. 609(b); Davis, 259 S.W.3d at 781.  The proponent seeking to introduce Rule 609 evidence has the burden of showing that the probative value of a conviction outweighs its prejudicial effect.  Theus, 845 S.W.2d at 880.

The Court of Criminal Appeals has set out a nonexclusive list of factors courts should use to weigh the probative value of a conviction against its prejudicial effect.  Id.  These include: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense and the witness’s subsequent history; (3) the similarity between the past crime and the charged offense; (4) the importance of the witness’s testimony; and (5) the importance of the witness’s credibility.  Id.  The proponent seeking to introduce Rule 609 evidence has the burden of showing that the probative value of a conviction outweighs its prejudicial effect.  Id. “We consider these factors in our Rule 609(b) analysis.”  Davis, 259 S.W.3d at 782.

1.     Impeachment Value of Prior Convictions

          With respect to the first factor, the Court of Criminal Appeals has stated that crimes involving deception or moral turpitude have a higher impeachment value than crimes involving violence.  Theus, 845 S.W.2d at 881.  The impeachment value of a prior conviction for possession of a controlled substance is low because this crime does not necessarily involve deception, and this Court has previously concluded “it is quite obviously not a crime of violence.” Denman v. State, 193 S.W.3d 129, 136 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); see Theus, 845 S.W.2d at 881.

Applying the Theus factors to Scope’s prior conviction for possession of a controlled substance, we conclude that its impeachment value is low, particularly in a trial in which the defendant admitted his participation in a drug transaction, and that this factor does not favor admissibility of this conviction.  As to Scope’s prior conviction for theft from a person, we observe that theft is a crime of moral turpitude because it involves deception. See Rodriguez, 129 S.W.3d at 559.  Because this prior offense has a heightened impeachment value, the first Theus factor weighs in favor of admissibility.

2.     Temporal Proximity of Prior Crimes

The second Theus factor favors admission “if the past crime was recently committed and if the witness has demonstrated a propensity for breaking the law.”  Simpson v. State, 886 S.W.2d 449, 452 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); accord Thomas v. State, 312 S.W.3d 732, 739–40 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).  Scope was convicted of theft from a person in 2006 and possession of a controlled substance in 2007.  He does not contend that these convictions were too remote to be admissible.  Because these crimes were committed near in time to the charged offense, they demonstrate Scope’s propensity to run afoul of the law, and the second Theus factor weighs in favor of admissibility for both prior convictions.

3.     Similarity Between Prior and Charged Offenses

Similarity between a prior offense and the current offense weighs against admissibility under Rule 609, whereas dissimilarity between the prior offense and the current offense favors admissibility.  Theus, 845 S.W.2d at 881; Davis, 259 S.W.3d at 783.  “This is so because the admission for impeachment purposes of a crime similar to that charged presents a situation in which the jury could convict based on the perception of the past conduct rather than the facts of the present case.”  Thomas, 312 S.W.3d at 740.

With respect to Scope’s prior conviction for possession of a controlled substance, we conclude that the dissimilarity in the two offenses weigh in favor of admissibility.  However, both aggravated robbery and theft include the same theft elements.  Scope’s prior conviction for theft is not precisely similar because aggravated robbery includes an element of violence not present in theft, however we conclude that the similarity would weigh in favor of exclusion.  Thus, the third Theus factor favors admissibility of Scope’s prior conviction for possession of a controlled substance, but it disfavors admissibility of Scope’s prior conviction for theft. 

4.     Importance of Testimony and Credibility

“Finally, under the fourth and fifth factors, we consider the importance of appellant’s testimony and of his credibility.”  Martin, 265 S.W.3d at 445 (citing Theus, 845 S.W.2d at 881). We consider the appellant’s defense and the means at his disposal to prove that defense.  Id.  Only Scope and Keith were present when the shooting occurred. Although one witness testified that she heard gunshots and another found Keith after the shooting, no other eyewitness testified at trial.  Thus, the jury’s verdict on guilt or innocence depended almost entirely on its assessment of Scope’s and Keith’s credibility.  Thus, these factors would have weighed heavily in favor of admission of both of Scope’s prior convictions.  See Theus, 845 S.W.2d at 881.

*        *        *

          Having considered the Theus factors, we conclude that the trial court would have acted within its discretion to admit Scope’s prior convictions if the State had sought to use them for impeachment.  Therefore, because these prior convictions would have been admissible, we hold that Scope has not overcome the presumption that his trial counsel employed a reasonable trial strategy by eliciting testimony from Scope about his prior convictions, while attempting to portray him as truthful.[3]  See Martin, 265 S.W.3d at 443; Rodriguez, 129 S.W.3d at 558–59.  We overrule Scope’s third issue.

Conclusion

We affirm the judgment of the trial court.

                                                                   Michael Massengale

                                                                   Justice

Panel consists of Justices Keyes, Sharp, and Massengale.

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

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[1]        In his brief, Scope argues that the usual harm that results from informing a jury that a lesser-included offense is governed by a lower punishment range is that the jury will convict the defendant of the greater offense because it does not believe the punishment for the lesser-included offense is sufficient.  We note that the trial court imposed the sentence in this case.

[2]        Rule 609.  Impeachment by Evidence of Conviction of Crime.

(a)  General Rule.  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)  Time Limit.  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 interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

[3]        In his brief, Scope argues that his case is analogous to Stone v. State, 17 S.W.3d 348 (Tex. App.—Corpus Christi 2000, pet. ref’d.)  In Stone, a delivery-of-a-controlled-substance case, the trial court ruled during voir dire that Stone’s prior murder conviction would be inadmissible during the guilt-innocence phase.  Id. at 349.  Stone’s trial counsel elicited testimony from Stone about his prior murder conviction.  Id. at 351–52.  Because the State was precluded from raising this prior conviction for impeachment, the court of appeals reasoned that no reasonable trial strategy could have justified his trial counsel’s actions.  Id. at 353.  Because the State could have used Scope’s prior convictions for impeachment, we conclude that Stone is inapposite to the issue raised in Scope’s appeal.