Angel Renee Norris v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00468-CR
ANGEL RENEE NORRIS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
Appellant Angel Renee Norris appeals her conviction for assault causing
bodily injury to a public servant.2 In two points, Norris contends that the trial
court erred by overruling her objection to four of the State’s exhibits that
demonstrate Norris’s previous felony convictions, and Norris argues that trial
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 22.01(b)(1) (West 2011).
counsel rendered ineffective assistance of counsel at the guilt-innocence phase
of trial. We will affirm.
II. BACKGROUND
Officer Rusty Wingate performed a “jail check” at the Tarrant County jail on
May 10, 2009. There he encountered Norris in her cell. Norris told Wingate that
she had information pertaining to a stolen computer and that she wanted to
speak with a detective and make a call about it. Wingate obliged and opened the
cell door, letting Norris sit at a booking desk to use the phone. Wingate dialed a
number given to him by Norris. By Wingate’s account, Norris spoke on the
phone for a few minutes, but her conversation had nothing to do with a stolen
computer; rather, her conversation pertained to why she was still in jail. After she
claimed that she had reached the wrong person in that phone call, Wingate
allowed Norris to make another. The second call was brief. Wingate allowed a
third call. Wingate surmised that the third phone call was to a bail-bond
company. At this point, Wingate believed that Norris’s claim of knowing about a
stolen computer was simply a ruse, and he refused Norris’s request to make a
fourth call.
Wingate opened the door for Norris to come out. Norris responded by
grabbing the booking desk with both hands, refusing to let go, and insisting that
she was not going back into her cell. Wingate then instructed Norris to exit the
booking area and return to her cell. Wingate attempted to grab Norris by the
shoulders in an effort to “herd” her back to her cell. Norris threw herself to the
2
ground. While lying on her back, Norris hurled obscenities at Wingate. As
Wingate attempted to remove Norris from the area, Norris kicked Wingate
several times in his chest, stomach, and legs. Norris, still lying on the floor,
reached behind her, picked up a chair, and threw it at Wingate’s face. Wingate
blocked the chair, but jammed his finger in the process. Norris then kicked
Wingate in the groin at least three times. Wingate believed that his finger was
broken, although he described the pain from her kicks to his groin as the most
painful aspect of the incident.
In his efforts to subdue Norris, Wingate warned her that he would tase her
if she did not cooperate. Norris responded by yelling, “Tase me, tase me, I’m
pregnant.” Fearing that she was telling the truth, Wingate did not tase Norris.
Instead, he eventually dragged Norris to her cell, released her there, and quickly
ran out of the cell, shutting the door behind him.
A jury convicted Norris of assault on a public servant and assessed
punishment at four and one-half years’ confinement. Represented by new
counsel, Norris filed a motion for new trial, asserting that her trial counsel had
been ineffective for failing to investigate and present evidence of a variety of
alleged mental illnesses. The trial court held a hearing, and Norris called local
criminal defense attorney, Stephanie Patten, to testify. Patten reviewed Norris’s
mental health records and surmised that Norris’s trial counsel had failed to
adequately investigate Norris’s mental health history. She also stated that trial
counsel’s failure to do so constituted substandard representation. Trial counsel
3
also testified that he never reviewed Norris’s mental health records. But he also
testified that had he done so, his trial strategy would not have changed. The trial
court granted Norris’ motion for new trial as to punishment only.
At the new punishment trial, conducted before the bench, Norris presented
evidence of her mental health records. She also presented testimony by a
forensic psychologist who had examined both Norris and her mental health
records. The State presented evidence of Norris’s previous felony convictions.
Norris objected to the admission of State’s exhibits ten, eleven, twelve, and
thirteen on grounds that these judgments were not properly authenticated
because the thumb prints contained on the convictions were not compared to
known samples of Norris’s prints.
The State questioned Deputy John Pauley of the Tarrant County Sheriff’s
Office’s error resolution department. Pauley testified that the prints on State’s
exhibit thirteen were comparable to a known sample of Norris’s prints. Pauley
also testified that the name, county identification number, and date of birth on
State’s exhibits ten, eleven, and twelve were consistent with the name, county
identification number, and date of birth on other conviction sheets that contained
the same information plus fingerprints that matched Norris’s. The trial court
overruled Norris’s objections.
At the close of the hearing, the trial court sentenced Norris to four and one-
half years’ confinement. This appeal followed.
4
III. DISCUSSION
A. State’s Exhibits Ten, Eleven, Twelve, and Thirteen
In her first point, Norris contends that the trial court abused its discretion by
admitting State’s exhibits ten, eleven, twelve, and thirteen at the punishment
hearing. Norris argues that the State failed to properly identify her as the person
named on these conviction records. We disagree.
To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists,
and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d
919, 921 (Tex. Crim. App. 2007); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim.
App. 1986) (“It is incumbent on the State to go forward and show by independent
evidence that the defendant is the person so previously convicted.”); see also
Timberlake v. State, 711 S.W.2d 50, 52 (Tex. Crim. App. 1986) (“[T]he facts of
each case must contain reliable evidence showing that the defendant had been
previously convicted of the offense for which evidence is offered.”). These two
elements may be established by certified copies of a judgment and a sentence,
including fingerprints supported by expert testimony identifying them as identical
with known prints of the defendant. See Vessels v. State, 432 S.W.2d 108, 117
(Tex. Crim. App. 1968). There is no required “mode of proof,” however, for the
two elements; the State may prove them in a number of different ways. Flowers,
220 S.W.3d at 921–22 (“Just as there is more than one way to skin a cat, there is
more than one way to prove a prior conviction.”). In proving the elements, the
5
State may use “[a]ny type of evidence, documentary or testimonial.” Id. at 922;
see Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988). Finally, the
factfinder looks at the totality of the admitted evidence to determine whether
there was a previous conviction and whether the defendant was the person
convicted. Flowers, 220 S.W.3d at 923.
As to State’s exhibits ten, eleven, and twelve, Pauley testified that the
same county identification number, the same date of birth, and the same full
name were comparable to other Norris convictions that contained the same
information plus validated fingerprints that matched Norris’s fingerprints. We
conclude and hold that the trial court could have concluded beyond a reasonable
doubt that the county identification number, date of birth, and name sufficiently
linked Norris to the existing convictions admitted in evidence. See Goode v.
State, No. 02–10–00465–CR, 2011 WL 4502333, at *1–2 (Tex. App.—Fort Worth
Sept. 29, 2011, pet. ref’d) (mem. op., not designated for publication) (“Given that
appellant’s unique, nonrecycled CID appeared in relation to two Tarrant County
convictions concerning a defendant with appellant’s full name and birth date, we
hold that a rational trier of fact could have found the evidence sufficient to link
appellant to the two prior judgments submitted by the State.”). We overrule this
portion of Norris’s first point.
As to State’s exhibit thirteen, despite Norris’s assertion in her brief that
“Pauley conceded that he did not compare a fingerprint from State’s Exhibit
[thirteen] to . . . Norris’s known print,” the record reveals that Pauley specifically
6
testified that the fingerprints on State’s exhibit thirteen were comparable to
previous known prints. He also said that the other information on State’s exhibit
thirteen was identical to the information contained on the previously confirmed
convictions. See Ortiz v. State, No. 02-07-00397-CR, 2008 WL 4602243, at *2
(Tex. App.—Fort Worth Oct. 16, 2008, pet. ref’d) (mem. op., not designated for
publication) (holding that State sufficiently linked defendant to prior conviction
when his fingerprints matched those on jail card, which contained same CID
number as that on indictment, although judgment did not contain CID number).
We overrule the remaining portion of Norris’s first point.
B. Effectiveness of Counsel
In her second point, Norris argues that the trial court abused its discretion
by overruling her motion for new trial as to the guilt-innocent phase of trial.
Norris argues that she received ineffective assistance of counsel because trial
counsel failed to “fully investigate mental health issues in this case.” The State
argues, among other things, that Norris has failed to demonstrate that the
outcome of the trial would have been different but for trial counsel’s alleged
errors. We agree with the State.
To establish ineffective assistance of counsel, the appellant must show by
a preponderance of the evidence that her counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
7
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is
whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065.
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Id., 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant
must show there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. at 694, 104
S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. The ultimate focus of our inquiry must be on the
fundamental fairness of the proceeding in which the result is being challenged.
Id. at 697, 104 S. Ct. at 2070.
There is no requirement that we approach the two-pronged inquiry of
Strickland in any particular order, or even that we address both components of
the inquiry if the defendant makes an insufficient showing on one component.
Id., 466 U.S. at 697, 104 S. Ct. at 2069.
8
In this case, we will assume without deciding that trial counsel failed under
the first prong of Strickland when he failed to investigate issues of Norris’s mental
health. Indeed, the trial court determined that trial counsel’s assistance fell below
prevailing professional norms in light of the circumstances of Norris’s having a
lengthy history of mental health issues and trial counsel’s admittedly failing to
investigate that history. In fact, the trial court granted Norris’s motion for new trial
as to punishment.
But there was no evidence offered at the hearing on the motion for new
trial that any physician or social worker would have testified that, due to Norris’s
mental health issues, the mens rea element to commit the crime of which she
was convicted, assault causing bodily injury to a public servant, was somehow
negated.3 See Ruffin v. State, 270 S.W.3d 586, 588 (Tex. Crim. App. 2008)
(“[T]estimony of a mental disease or defect that directly rebuts the particular
mens rea necessary for the charged offense is relevant and admissible unless
excluded under a specific evidentiary rule.”).
3
There was evidence presented at the second punishment hearing that
Norris suffered from a number of mental health issues, including: poor impulse
control, posttraumatic stress disorder, recurrent depressive disorder,
amphetamine dependence, and borderline personality disorder. But there was
no evidence presented at any phase of trial to show how Norris’s mental health
issues might have been offered to rebut or negate that she possessed the
specific intent to assault Wingate. See Tex. Penal Code Ann. § 22.01(a)(1)
(West 2011) (“A person commits an offense if the person . . . intentionally,
knowingly, or recklessly causes bodily injury.”); see also Jackson v. State, 160
S.W.3d 568, 574 (Tex. Crim. App. 2005) (“As with the other elements of the
offense, relevant evidence may be presented which the jury may consider to
negate the mens rea element.”).
9
The record does not demonstrate how trial counsel’s not having
investigated Norris’s mental health issues undermines confidence in the jury’s
verdict of guilty. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Norris
does not even analyze in her brief how the second prong of Strickland is
satisfied, stating only in one short paragraph that due to trial counsel’s failure to
investigate Norris’s “diminished capacity,4 [Norris] has been foreclosed from
showing that she did not possess the requisite mens rea.” In short, Norris has
failed to show that there is a reasonable probability that, but for counsel’s failure
to investigate her mental health history, the result of the proceeding would have
been different. See Conrad v. State, 77 S.W.3d 424, 426–27 (Tex. App.—Fort
Worth 2002, pet. ref’d) (holding that even though appellant satisfied Strickland’s
first prong by proving counsel failed to investigate evidence of mental insanity,
his ineffective assistance claim failed because he did not present sufficient
evidence at motion-for-new-trial hearing to show outcome of trial would have
been different). We overrule Norris’s second point.
4
We note that “The court of criminal appeals has consistently reasoned
that Texas does not recognize diminished capacity as an affirmative defense.”
See Acevedo v. State, No. 02-10-00187-CR, 2011 WL 567630, at *1 (Tex.
App.—Fort Worth Nov. 17, 2011, pet. ref’d).
10
IV. CONCLUSION
Having overruled both of Norris’s points, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 14, 2012
11