James Jones v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00386-CR
JAMES JONES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the Criminal District Court 3
Tarrant County, Texas
Trial Court No. 1226641D, Honorable Robb Catalano, Presiding
August 25, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, James Jones, appeals his conviction for the offense of capital
murder.1 Because appellant was found guilty of capital murder and the State did not
seek the death penalty, the trial court automatically sentenced appellant to life
imprisonment without parole.2 We will affirm.
1
See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2014).
2
See id. § 12.31(a)(2) (West Supp. 2014).
Factual and Procedural Background
On January 6, 2011, Kevin Dunlop went to Gerard Dorsey’s apartment to play
video games with Gerard’s younger brother, John. There was a group of seven or eight
people that gathered at the apartment to play games.
John had been living with Gerard for a couple of weeks and had begun selling
drugs out of the apartment. Appellant contacted John to arrange a purchase of drugs.
Appellant had already purchased drugs from John earlier in the evening.
Appellant arrived at the apartment alone and John let him in. Appellant was
using his phone to text as he entered the apartment. After the transaction was
completed, John escorted appellant to the door of the apartment. When John opened
the door to let appellant out, three males burst through the doorway with guns drawn.
Appellant did not appear fearful as the robbery commenced. In fact, according to John,
appellant pulled a previously concealed pistol from his clothing. Almost immediately
after announcing that this was a robbery, one of the members of the group began
shooting. When the shooting began, the people in the apartment scattered.
Approximately nine shots were fired.
A neighboring resident of the apartment complex heard the gunshots and looked
out of her window to see a group of males running away from the complex to a car. She
was able to identify one of these males as appellant. Another resident that heard the
shots called the police.
2
When the police arrived, two gunshot victims were discovered in the apartment.
One victim was taken to the hospital. Kevin Dunlop was found lying face down in a
closet. He had been shot three times and had died. Subsequent DNA testing
performed on Dunlop’s jeans identified appellant’s DNA inside of Dunlop’s pockets.
Appellant was indicted for the offense of capital murder. At the close of evidence
at trial, the trial court held a charge conference. At the charge conference, appellant’s
counsel requested that there be no specific reference to the law of parties included in
the application paragraph of the charge. The trial court denied this request and a
charge that incorporated the instruction on the law of parties by reference into the
application paragraph was submitted to the jury. The jury returned a verdict finding
appellant guilty of capital murder. Under the applicable statute, the trial court
automatically sentenced appellant to life incarceration without the possibility of parole.
Appellant timely filed notice of appeal.
By his appeal, appellant presents two issues. By his first issue, appellant
contends that the trial court erred by failing to expressly state in the application
paragraph of the jury charge that appellant can only be found guilty of capital murder as
a party if he should have anticipated a murder in the course of the aggravated robbery.
By his second issue, appellant contends that he was deprived of the effective
assistance of counsel when trial counsel failed to argue that, for appellant to be guilty of
capital murder as a party, he should have anticipated a murder in the course of the
aggravated robbery.
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Charge Error
By his first issue, appellant contends that the trial court erred by failing to include
language in the application paragraph of the court’s charge to the jury that, to find
appellant guilty of capital murder, the jury must find that appellant should have
anticipated that a murder would occur in the course of the aggravated robbery to which
he was a party. The State responds that (1) if the omission is an error, appellant invited
the error, (2) the charge was not in error, and (3) if there was error in the charge, it did
not cause egregious harm.
Invited Error
If a party requests or moves the court to make a particular ruling and the court
rules in accordance with the request or motion, the party responsible for the court's
action cannot take advantage of the error on appeal. Willeford v. State, 72 S.W.3d 820,
823 (Tex. App.—Fort Worth 2002, pet. ref’d) (citing Prystash v. State, 3 S.W.3d 522,
531 (Tex. Crim. App. 1999) (en banc)). This is the doctrine of invited error. Id. As
applicable to the present case, a party may not complain on appeal that a jury charge
that he requested was in error. See Prystash, 3 S.W.3d at 531.
The following exchange occurred during the charge conference:
[Appellant’s counsel]: We object to the inclusion of the language beginning
on the second line on page four starting with the word "either," either
acting alone or as a party as that term has been previously defined. We
would ask that that be stricken on the application paragraph.
We'd also object and ask that the same words be stricken from the
application paragraph on the aggravated robbery, either acting alone or as
a party as that term has been previously defined. We believe that
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inclusion of that is an improper comment on the weight of the evidence to
be given. I believe that party is already defined in the instructions and
doesn't need to be included in the application paragraph.
THE COURT: Okay. So your -- you don't want any specific mention of
acting alone or as a party in the application paragraph at all?
[Appellant’s counsel]: That's correct.
The trial court denied appellant’s objection and the jury charge included the language
incorporating the instructions on the law of parties into the application paragraph. While
appellant requested that the application paragraph of the jury charge contain no
reference to the abstract instruction on the law of parties, the trial court denied his
request. As such, this is not invited error because the trial court did not “rule[] in
accordance with the request” for an erroneous ruling. See Willeford, 72 S.W.3d at 823.
Error
Review of an alleged charge error is a two-step process. Nelson v. State, 297
S.W.3d 424, 433 (Tex. App.—Amarillo 2009, pet. ref’d) (citing Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994) (en banc)). We must determine whether error
actually occurred and, if so, we then evaluate the error to determine the degree of harm
it caused. Id. The degree of harm requiring reversal depends on whether the appellant
objected to the charge. Id. Preserved error calls for reversal so long as any harm is
shown, in other words, if it is not harmless. Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985) (en banc) (op. on reh'g). When no proper objection was made
at trial, charge error will result in reversal unless the error is so egregious and created
such harm that it has denied appellant a fair and impartial trial. Id.
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“It is error for a trial court to instruct the jury on the law of parties in the abstract
portion of the charge but then fail to apply or refer to that law in the application
paragraph of the charge.” Greene v. State, 240 S.W.3d 7, 15 (Tex. App.—Austin 2007,
pet. ref’d) (citing Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995) (en
banc)). Generally, a charge is sufficient to support a conviction on the parties theory if it
instructs the jury on the law of parties in the abstract portion of the charge and the
application paragraph incorporates those instructions by reference. See Vasquez v.
State, 389 S.W.3d 361, 368 (Tex. Crim. App. 2012); Chatman v. State, 846 S.W.2d 329,
332 (Tex. Crim. App. 1993); Greene, 240 S.W.3d at 15. However, it is error for a
charge not to apply the law of parties directly to the facts when requested. Greene, 240
S.W.3d at 15; see Vasquez, 389 S.W.3d at 368. But, if such a direct application of the
law of parties is not requested, incorporation of abstract instructions by reference is not
error, let alone fundamental error. See Greene, 240 S.W.3d at 15-16.
In the present case, it is clear that the application paragraph of the jury charge
incorporated the abstract instruction on the law of parties by reference to “the foregoing
instructions” and “party[,] as that term has been previously defined.” Appellant did not
request that the law of parties be directly applied to the facts of the case in the
application paragraph of the court’s charge. In fact, as discussed above, appellant
actually requested that the law of parties not be referenced in the application paragraph
at all. Consequently, under the facts of this case, the trial court’s references to the law
of parties in the application paragraph of the jury charge are sufficient to properly
instruct the jury. See Vasquez, 389 S.W.3d at 368; Chatman, 846 S.W.2d at 332;
Greene, 240 S.W.3d at 15. In the absence of appellant’s request for a direct application
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of the law of parties to the facts of this case in the application paragraph, the jury charge
was not erroneous. See Greene, 240 S.W.3d at 15-16.
Because the charge was not in error, we cannot address the degree of harm
caused by the error. See Nelson, 297 S.W.3d at 433. Accordingly, we overrule
appellant’s first issue.
Ineffective Assistance of Counsel
Appellant contends that, based on the evidence presented in this case, the only
viable defensive theory was that appellant had no reason to anticipate that a murder
would be committed during the course of the aggravated robbery. Therefore, by his
second issue, appellant contends that he was deprived of the effective assistance of
counsel when his trial counsel failed to argue that for him to be found guilty of capital
murder as a party, the murder must have been something that appellant should have
anticipated occurring during the course of the aggravated robbery. Appellant also
contends that counsels’ failure to request an express application of this principle of the
law of parties to the facts of this case in the application paragraph of the jury charge
was ineffective assistance of counsel.
The United States Constitution's guarantee of the right to counsel encompasses
the right to effective assistance of counsel. U.S. CONST. amend. VI; Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In determining
whether counsel's representation was so inadequate as to violate a defendant's Sixth
Amendment right to counsel, Texas courts apply the two-pronged test enunciated in
Strickland, 466 U.S. at 687. See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim.
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Ohio App. 1986) (en banc). This test requires an appellant claiming ineffective assistance of
counsel to prove, by a preponderance of the evidence, that (1) counsel's representation
fell below an objective standard of reasonableness, and (2) the deficient performance
prejudiced the appellant. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)
(citing Strickland, 466 U.S. at 689). Failure to make the required showing of either
deficient performance or sufficient prejudice is fatal to an ineffectiveness claim. See id.
Judicial review of an ineffective assistance of counsel claim must be highly deferential,
and there is a strong presumption that trial counsel's conduct fell within the wide range
of reasonable professional assistance. Strickland, 466 U.S. at 689.
The "right to effective assistance of counsel merely ensures the right to
reasonably effective [not perfect] assistance." Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006) (quoting, with alteration, Ingham v. State, 679 S.W.2d 503, 509
(Tex. Crim. App. 1984) (en banc)). This right does not mean errorless or perfect
counsel whose competency of representation is to be judged by hindsight. Ingham, 679
S.W.2d at 509. Counsel is not ineffective simply because he did not do that which his
accuser thought that he should have done or because some attorney having the benefit
of hindsight and cool reflection would have acted differently. Nanez v. State, 346
S.W.3d 875, 876-77 (Tex. App.—Amarillo 2011, no pet.). Counsel's performance is
judged by "the totality of the representation," and "judicial scrutiny of counsel's
performance must be highly deferential" with every effort made to eliminate the
distorting effects of hindsight. Robertson, 187 S.W.3d at 483.
For an appellate court to find that counsel was ineffective, counsel's deficient
performance must be firmly founded in the trial record. See Lopez, 343 S.W.3d at 142;
8
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When direct
evidence of counsel’s reasoning for taking the questionable action is not available, we
will assume that counsel took such action for any reasonably sound strategic purpose
that can be imagined. See Lopez, 343 S.W.3d at 143. When no reasonable strategy
could justify trial counsel’s conduct, counsel’s performance fell below the objective
standard of reasonableness as a matter of law, regardless of whether the record reflects
counsel’s subjective strategy. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.
2005).
While appellant acknowledges that, in most instances, trial counsel should be
given the opportunity to explain his or her trial strategy on the record before an
appellate court will find counsel’s representation ineffective, appellant contends that his
counsels’ failure to argue that appellant should not have anticipated that a murder would
be committed during the course of the aggravated robbery was ineffective because
there could be no sound trial strategy to justify this failure.3 However, the record reflects
that appellant’s trial counsel argued to the jury the high burden of proof that the State
had to carry and that the evidence suggested that appellant was only guilty of
aggravated robbery. Further, it appears that counsel made a strategic choice to attempt
to minimize the law of parties in the jury charge by requesting that there be no reference
to the abstract instruction on the law of parties in the application paragraph of the
charge. While these strategies may not have been the best strategies, we cannot
3
We must remain mindful that there was evidence that appellant not only knew that others in the
group of robbers had guns, but that he had a gun himself. As a result, had trial counsel made the
argument appellant now contends they should have made, it may have only focused the jury’s attention
on the fact that appellant should have anticipated that a murder could occur during the course of the
aggravated robbery. As such, we conclude that it was a viable trial strategy to attempt to deemphasize
the law of parties in this case.
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conclude that there could be no reasonably sound strategic purpose for making these
arguments. Therefore, we do not conclude from the record4 that trial counsels’
representation fell below an objective standard of reasonableness. See Robertson, 187
S.W.3d at 483; Ingham, 679 S.W.2d at 509.
Appellant contends that the “should have anticipated” argument was the only
viable defense available to appellant. As such, according to appellant, there was no
sound strategy for not presenting this argument to the jury. Appellant points to the
State’s voir dire as evidencing that the State’s trial counsel believed that the “should
have anticipated” element is a given whenever a gun is taken to an aggravated robbery,
and appellant’s counsel failed to correct this impression. However, even assuming that
the record of voir dire would allow us to conclude that this is State’s counsel’s belief,
appellant fails to cite any authority establishing that such a belief is incorrect. While the
hypotheticals presented by the State in voir dire might have been on the outer edge of
what could constitute what a party defendant “should have anticipated,” there can be
little dispute that, in the present case, there was sufficient evidence to have allowed the
jury to rationally conclude that appellant should have anticipated the murder during the
commission of the aggravated robbery. As mentioned before, there is evidence that
appellant knew that the others had guns and that he himself possessed a gun during
the aggravated robbery. We believe that appellant should have anticipated that a
murder could occur during the commission of aggravated robbery when he and the
other parties to the robbery were armed with guns. For this reason, even were we to
4
Because trial counsel were not given the opportunity to explain their trial strategy in the record,
we review counsels’ performance to determine whether any reasonably sound strategic purpose can be
imagined that would justify their actions. See Lopez, 343 S.W.3d at 143.
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conclude that trial counsels’ failure to argue the “should have anticipated” defense fell
below the standard of professional norms, we cannot say that trial counsels’ failure to
present this argument undermined confidence in the outcome of the trial and prevented
appellant from receiving a fair trial. See Strickland, 466 U.S. at 694.
Because appellant has failed to establish that trial counsels’ representation fell
below an objective standard of reasonableness, or that any deficiency in the
performance caused him prejudice, we overrule appellant’s second issue. See Lopez,
343 S.W.3d at 142.
Conclusion
Having overruled both of appellant’s issues, we affirm the judgment of the trial
court.
Mackey K. Hancock
Justice
Do not publish.
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