Daronda Modena Sikes v. State ( 2012 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00090-CR
______________________________
DARONDA MODENA SIKES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court
Red River County, Texas
Trial Court No. CR01566
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
After a Red River County jury found Daronda Modena Sikes guilty of possession of
methamphetamine, between one and four grams, 1 the trial court, without any objection from
Sikes’ counsel, ordered community supervision,2 conditioned that Sikes first serve 180 days in
county jail and then complete a substance abuse felony program. On appeal, Sikes complains of
those conditions of community supervision and of the representation by her trial counsel. We
affirm the trial court’s judgment because (1) the conditions placed on Sikes’ community
supervision were permitted and (2) Sikes’ trial counsel was not shown to have been ineffective.
(1) The Conditions Placed on Sikes’ Community Supervision Were Permitted
Sikes complains that when the trial court ordered, as conditions of community supervision,
that Sikes first serve 180 days in the county jail, then complete a substance abuse felony program,3
such conditions were beyond the trial court’s authority.
The trial court followed the jury’s recommendation of a three-year sentence probated for
seven years, but also imposed conditions on the community supervision. The trial court ordered
Sikes to spend 180 days in the Red River County Jail and, following that period, that she attend a
SAFPF for not less than ninety days and not more than one year.
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).
2
The jury recommended, and Sikes was ordered to serve, a sentence of three years, probated for seven years.
3
―SAFPF,‖ where the last ―F‖ stands for ―facility;‖ the facilities are also referred to as SATF, substance abuse
treatment facilities. See generally TEX. CODE CRIM. PROC. ANN. art. 42.12, § 14 (West Supp. 2011).
2
The trial court has wide discretion in imposing conditions and terms on a defendant’s grant
of community supervision. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999); see also
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11 (West Supp. 2011). A defendant must object to any
conditions of community supervision that he or she opposes at the trial court; otherwise, such
complaints are not preserved for appellate review. Speth, 6 S.W.3d at 534–35; Ledet v. State, 177
S.W.3d 213, 221 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (failure to object to 180 days’
confinement as condition of community supervision waives appellate review). Because Sikes
posed no objections to the trial court’s conditions at sentencing or in a motion for new trial, she
waived this complaint.
In spite of that waiver, Sikes claims that the trial court’s conditions of community
supervision made the sentence illegal, constituting fundamental error, which may be urged on
appeal without preserving the complaint in the trial court. She directs us to statutory authority
that a trial court may order a defendant confined for not more than 180 days in a county jail as a
condition of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 12(a) (West
Supp. 2011). Sikes’ reasoning is that, because a stay at a SAFPF necessarily is at least ninety
days,4 any time in a SAFPF would push Sikes’ confinement beyond the maximum 180 days
allowed by Article 42.12, Section 12(a). Thus, according to Sikes, the trial court’s conditions of
community supervision were unauthorized and illegal.
4
See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 14(a).
3
As part of its wide discretion in setting conditions of community supervision, the trial court
here was authorized to require Sikes to serve up to 180 days in the county jail as a term of
community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12 , § 12(a). Sikes has directed us
to no authority that the trial court cannot impose both conditions—county jail time and
confinement in a SAFPF—as conditions of community supervision. Article 42.12, Section
12(a) addresses confinement in a county jail; Article 42.12, Section 14(a) addresses confinement
in a SAFPF. TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 12(a), 14(a). Sikes argues that, since
she has been ordered confined both in county jail and in a SAFPF, the trial court exceeded the
allowable amount of confinement time as a condition of community supervision. This argument
ignores the different places of confinement: the county jail versus the SAFPF.5 The limit of 180
days for a felony appears only in Section 12(a), authorizing confinement in a county jail. We
have found no authority barring two separate confinements where each is a distinct, authorized
condition of community supervision. Here, the confinement in the county jail does not exceed
180 days. Thus, the trial court order did not constitute an illegal sentence. See TEX. CODE CRIM.
PROC. ANN. art. 42.12, § 12(a); Tamez v. State, 534 S.W.2d 686, 691 (Tex. Crim. App. 1976).
5
Sikes also argues that because a defendant may receive credit against her ultimate sentence for time spent in a SAFPF,
that further supports the conclusion such time counts as ―confinement.‖ See TEX. CODE CRIM. PROC. ANN. art. 42.12,
§ 23(b) (West Supp. 2011). This argument has no bearing on the instant situation: a defendant receives credit
against a sentence only after having his or her community supervision revoked and being sentenced. This still does
not take into account that the two sections authorizing conditions of community supervision refer to confinement in
two separate facilities, county jail and a SAFPF.
4
The conditions of community supervision ordered by the trial court were permissible, not illegal.
We overrule this point of error.
(2) Sikes’ Trial Counsel Was Not Shown to Have Been Ineffective
Sikes also asserts ineffective assistance from her trial counsel in various actions taken
during trial. In order to ultimately prevail in a claim that trial counsel was ineffective, a defendant
seeking to challenge counsel’s representation must establish that his or her counsel’s performance
was deficient and prejudiced the defense.6 Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App.
2009) (citing Strickland, 466 U.S. at 687; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.
2002)). Any allegation of ineffectiveness of counsel must be firmly founded in the record.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576,
589 (Tex. App.—Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003). Sikes bears
the burden of proving by a preponderance of the evidence that her trial counsel was ineffective.
Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984).
First, Sikes must show that counsel’s performance fell below an objective standard of
reasonableness in light of prevailing professional norms. Strickland, 466 U.S. at 687–88. There
is a strong presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance and that the challenged action could be considered sound trial strategy.
6
We apply the two-pronged Strickland test handed down by the United States Supreme Court to determine whether
Sikes received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Failure to satisfy
either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006).
5
Id. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Therefore, we will not
second-guess the strategy of Sikes’ counsel at trial through hindsight. Blott v. State, 588 S.W.2d
588, 592 (Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana
2005, pet. ref’d). Any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.
In most cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the
failings of trial counsel. Id. at 813–14; see also Jackson, 877 S.W.2d 768, 771–72 (Tex. Crim.
App. 1994) (en banc) (when record fails to show why counsel did not present certain evidence at
trial on punishment, reviewing court cannot conclude counsel’s performance deficient). The
mere fact that another attorney might have tried the case differently does not support a finding of
ineffective assistance of counsel. Hawkins v.. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983).
The second Strickland prong, prejudice, requires a showing that, but for counsel’s
unprofessional error, there is a reasonable probability that the result of the proceeding would have
been different. Strickland, 466 U.S. at 687–88. A ―reasonable probability‖ is a probability
sufficient to undermine confidence in the outcome, meaning that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable. Smith, 286 S.W.3d at 340.
In one of her complaints, Sikes asserts that her trial counsel was deficient in not objecting
to the purportedly illegal sentence assessed by the trial court, i.e., the conditions of community
supervision imposed. As discussed in the first part of this opinion, the trial court was within its
6
discretion in implementing the conditions of community supervision. So, the sentence was not
illegal. Counsel has no obligation to object to a legal sentence. See Jacoby v. State, 227 S.W.3d
128, 131 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (to prevail on claim counsel was
ineffective for failing to object to allegedly cruel and unusual sentence, appellant must show trial
court would have erred in overruling such objection).7
Sikes also claims her trial counsel was ineffective because, in questioning Sikes during her
case-in-chief, counsel asked Sikes about other arrests that resulted in dismissed charges. Sikes
claims this line of questioning opened the door to damaging cross-examination by the State. We
do not find this tactic amounted to ineffective assistance of counsel.
Sikes was arrested when a truck in which she was riding was stopped for speeding on a
cold November night between Bogata and Clarksville. Sikes was in the middle of the truck’s
seat; the truck was driven by Burl Harvey. On Sikes’ right, in the passenger seat, was a woman
named Rhodes. Sikes was wearing a coat she said Harvey gave her. When she exited the truck,
Deputy Glenn Briggle said Sikes had her right hand balled into a fist and turned her back to
Briggle; she then put her fist in the coat’s pocket. When Briggle asked her to remove her right
hand from the pocket, Sikes showed the deputy her left hand. Briggle finally had to remove
Sikes’ right hand from the pocket himself. Her hand was empty, but in the pocket was a small
automotive fuse box, in which was found three small baggies containing 1.67 grams of
7
See also Ex parte Thompson, 179 S.W.3d 549, 559–60 (Tex. Crim. App. 2005) (defendant not entitled to jury charge
on lesser included offense; therefore, counsel not ineffective for failing to request); McFarland v. State, 845 S.W.2d
824, 846 (Tex. Crim. App. 1992) (counsel not ineffective for failing to object to admissible evidence).
7
methamphetamine. Sikes first told the deputy the jacket was Harvey’s. She then said Harvey
had given her a piece of gum, which she put in the pocket (no gum was found on Sikes or in the
coat). Finally, Sikes told the deputy that Harvey had handed the fuse box to her, telling her he
was on parole and could not get caught with ―it.‖8
Sikes testified to the jury that she did not know the drugs were in the coat pocket and that
she did not use drugs.9 Sikes’ defensive theory was that the drugs belonged to Harvey and were
found on Sikes’ person only because she had borrowed Harvey’s coat. Sikes’ trial counsel
questioned her about her drug use: Sikes said she did not use drugs, but drank enough alcohol to
give her cirrhosis of the liver. Her attorney asked Sikes about an arrest in 1993 for possession of
amphetamine, which charge had been dismissed: Sikes said she did not remember the case.
Counsel asked her about a charge of fraudulent transfer of a motor vehicle, which was also
dismissed. Sikes explained the charge revolved around a mix-up in transferring title to a vehicle
given her by her father. Sikes said she had been arrested a few months before trial on a charge of
driving with a suspended license, which charge was still pending. She again denied using drugs
or knowing that Harvey had drugs on the night of their arrest (she earlier acknowledged knowing
that Harvey had a history of drug use).
8
Harvey was also charged with possession of the methamphetamine; the record indicates he pled guilty to the charge.
9
The sufficiency of the evidence is not questioned. The arresting deputy testified that Sikes first denied ownership of
the drugs, then said Harvey had handed them to her when the truck was stopped.
8
Sikes argues that her trial counsel was ineffective for bringing up the topic of her previous
arrests. It is true that the State, on cross-examination, revisited these incidents and attempted to
elaborate on the circumstances of some of the arrests. For example, questioning Sikes about the
allegation of a fraudulent motor vehicle transfer, the State asked Sikes if she knew the man to
whom she sold the truck was a convicted drug dealer: Sikes said she did not. The State asked
Sikes about her recent arrest for driving with a suspended license. When Sikes confirmed the
name of the person at whose house she was arrested, the prosecutor asked her if she knew that
person had been convicted of manufacturing a controlled substance: Sikes denied knowing this.10
Sikes’ attorney questioning her about her history of arrests, without convictions, could be
seen as a reasonable way to present her defensive theory that she did not use drugs and therefore
would be less likely to have knowingly possessed the methamphetamine found on her person.
Sikes complains this questioning allowed the State to question Sikes whether, and insinuate that,
she spent time in the company of drug dealers. However, the State could have broached this
subject simply by virtue of Sikes taking the stand. During cross-examination of a State’s witness,
former deputy Briggle, Sikes’ lawyer had established that Harvey had been indicted for the same
possession of methamphetamine for which Sikes was charged and that Harvey had a prior
conviction for possession of a controlled substance in penalty group 1. It is true that the State’s
10
The State’s question also implied Sikes had been arrested while flushing a toilet; Sikes did not answer this part of the
question and the State did not pursue it. In its questioning about these two arrests, the State offered no evidence to
support the allegations about the circumstances around the arrests—i.e., to support the State’s insinuations the other
parties mentioned in fact had the narcotic histories suggested.
9
follow-up questions, with their insinuations, did not place Sikes in a good light. But our review of
trial counsel’s representation is highly deferential and we indulge a strong presumption that
counsel’s conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at
689; Tong, 25 S.W.3d at 712. ―We will not second-guess through hindsight the strategy of
counsel at trial, nor will the fact that another attorney might have pursued a different course
support a finding of ineffectiveness.‖ Blackmon v. State, 80 S.W.3d 103, 108 (Tex.
App.—Texarkana 2002, pet. ref’d). Without explanation from trial counsel as to his strategy for
broaching these subjects—where Sikes had indeed been arrested a few times, but never convicted,
and at least two of the prior charges had been dismissed—we do not find Sikes has rebutted the
presumption that trial counsel was trying the case with a reasonable strategy. 11
Even if Sikes had demonstrated deficient performance by her trial attorney, she has failed
to show that absent these purported errors, there is a reasonable probability the result of her trial
would have been different. The arresting deputy described Sikes’ conduct and inconsistent
stories at the scene. Even before Sikes’ lawyer questioned her about her earlier arrests, she
testified she bought her car12 from a company called Harvey Motors and that she was related to
Burl Harvey. This, and defense counsel’s earlier admission of the evidence of Harvey’s prior
11
See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (defense counsel should be given opportunity to
explain actions before condemning her representation).
12
Sikes said her car broke down earlier in the evening; a wrecker and Harvey arrived separately, and she took a ride
with Harvey to his house. He left, and returned with Rhodes, then was taking Sikes to retrieve possessions from her
parents’ home when they were stopped by deputies. All this occurred around 1:00 a.m.
10
drug conviction, could have allowed the State to ask Sikes if she was in the habit of keeping
company with drug users. Had Sikes not taken the stand, the jury would have been left with the
deputy’s description of her suspicious behavior at the scene. Sikes would fail on the prejudice
prong of the Strickland analysis; we find she can meet neither part of the test to show ineffective
assistance of counsel. We overrule this point of error.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: December 5, 2011
Date Decided: January 6, 2012
Do Not Publish
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