Woodward v. State ( 1999 )

OPINION

MIRABAL, Justice.

Three charges against appellant, Terry Lesley Woodward, were tried to the same jury: aggravated assault of Luis Melendez; aggravated kidnapping of Patricia Caisedo; and possession of cocaine. The jury found appellant not guilty of aggravated kidnapping of Patricia Caisedo, and guilty of the other two offenses. The jury assessed punishment at 30 years confinement for the aggravated assault,¹ and two years confinement for the possession of cocaine.² We affirm.

Procedural Facts Relevant to Both Appeals

During deliberations at the guilt-innocence phase, the jury sent out the following note:

We would like to hear [appellant’s] testimony about where he was held down by the neck.

The trial court permitted the court reporter to read back a portion of appellant’s testimony in question and answer form. The reporter’s record states the “requested portion of the testimony was read back for the jury,” without setting out the questions and answers read back. We note that the record before us reveals that the totality of appellant’s testimony “about where he was held down by the neck” appears on five pages of the reporter’s record.³

Before the reading of the testimony to the jury, the judge said the following:

[Defense counsel] has left the court without advising me or without seeking my permission. I am not going to keep the jury waiting for these notes to be answered. The testimony that applies to No. 1 has already been found by the Court Reporter. There seems to be no question that this is what the jury wants; therefore, I’m not going to hold off the jury deliberations while [defense counsel] is absent.

The record does not indicate when defense counsel re-entered the courtroom. The jury retired after hearing the testimony read, and returned its verdict about 24 minutes later.

Possession of Cocaine Conviction

In a sole point of error in his appeal of the cocaine possession conviction, appellant asserts he was denied effective assistance of counsel. Appellant’s primary complaint is that the trial court conducted the part of the trial described above in the absence of his counsel.

As noted at the outset, the same jury, during the same trial, heard evidence regarding three different charges against appellant. When appellant was arrested at the scene for the assault and kidnapping charges, he was searched by the police incident to the arrest. The search revealed appellant was in possession of a glass crack pipe that contained cocaine. As a result, appellant was charged with the offense of possession of cocaine.

It is clear that the testimony the jury requested to hear related solely to the aggravated assault charge. Yet, appellant argues the reading back of this testimony was a “critical stage” of the trial of the possession of cocaine charge, and therefore the absence of counsel during the reading back of this irrelevant testimony requires a reversal of the possession of cocaine conviction. Appellant has misconstrued United States v. Cronic, 466 U.S. 648, 660, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984) and its progeny.

The U.S. Supreme Court in Cronic gave clear guidance for determining whether a defendant has been deprived of the Sixth Amendment right to effective assistance of counsel:

In our evaluation ... we begin by recognizing that the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.... Thus, we do not view counsel’s performance in the abstract, but rather the impact of counsel’s performance upon “what after all, is [the accused’s], not counsel’s trial.”

Cronic, 466 U.S. at 658, 104 S.Ct. at 2046 (emphasis added). The Court acknowledged that certain circumstances are “so likely to prejudice the accused” that it is not necessary to “litigate” their effect, pointing to total absence of counsel, or denial of counsel at a critical stage of trial, as examples. Id. at 658-59, 104 S.Ct. at 2046-47. Thus, the concept of “prejudice to the accused” is intimately intertwined with the concept of “critical stage of trial.”

For example, in Gobert v. State, the Court acknowledged that, in the abstract, jury voir dire is a “critical stage of trial.” 717 S.W.2d 21, 23 (Tex.Crim.App.1986). However, under the particular circumstances of the case, the absence of counsel during a portion of voir dire did not mandate reversal because of lack of prejudice to the defendant. Id. at 23-24. Similarly, in United States v. Simpson, the Court examined the circumstances of trial counsel’s absence four different times during the trial and concluded the absences did not constitute ineffective assistance of counsel. 901 F.2d 1223, 1229 (5th Cir.1990).

Accordingly, in the present case, we are not to judge the record in the abstract. Rather, we are to determine whether the particular circumstance involved here was “so likely to prejudice” appellant that constitutional error occurred.

We conclude that the reading back to the jury of testimony that had absolutely no relevance to the issues in the cocaine possession trial, was not prejudicial to appellant, and was not a “critical stage” of that proceeding. We further conclude that trial counsel’s absence at that time did not deprive appellant of effective assistance of counsel under the Strickland⁴ standard. The standard of review set out in Strickland, and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, requires a defendant to show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability lie., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s error, the result of the trial would have been different. Strickland, 466 U.S. at 692, 104 S.Ct. at 2068; Hernandez, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986). In the present case, the second prong of the Strickland standard is not met because there is no reasonable probability that the result of the trial of the cocaine possession charge would have been different if appellant’s trial counsel had been present when the requested non-pertinent testimony was read back to the jury.

Appellant next argues that he received ineffective assistance of counsel at the guilt-innocence and punishment phases by the failure of his counsel to present a motion to quash an enhancement allegation, and by his counsel’s failure to make a valid objection to some of the punishment evidence.

To meet the burden of proving ineffective assistance of counsel, a defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2064. The record is silent as to the reasons trial counsel conducted appellant’s defense as he did. To find that trial counsel was ineffective based on any of the asserted grounds would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.—Houston [1st Dist.] 1996, no pet.); Safari v. State, 961 S.W.2d 437, 445 (Tex.App.—Houston [1st Dist.] 1997, pet. refd) (applying Jackson and Gamble to claims of ineffective assistance of counsel during both the guilt-innocence and punishment phases).

Accordingly, we overrule appellant’s sole point of error in his appeal of the possession of cocaine conviction.

Conviction for Aggravated Assault of Luis Melendez

In point of error one in his appeal of the aggravated assault conviction, appellant asserts the trial court erred when it read the above described portions of the trial testimony to the jury without first determining whether the jury disagreed about the testimony.

The Code of Criminal Procedure provides as follows:

In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness testimony or the particular point in dispute, and no other; but if there be no such reporter, or if his notes cannot be read to the jury, the court may cause such witness to be again brought upon the stand and the judge shall direct him to repeat his testimony as to the point in dispute, and no other, as nearly as he can in the language used on the trial.

Tex.Code Crim. P. Ann. art. 36.28 (Vernon 1981). Appellant points out that the trial court was aware of its error when, after reading the testimony, the judge told the jury “I’m going to give you a — a form because normally we read back testimony only if there’s a dispute among members of the jury, a disagreement as to what it was, so you can see that.”

The jury must disagree about a specified part of the testimony before a witness’s statement may be read to them. Moore v. State, 874 S.W.2d 671, 673 (Tex.Crim.App.1994). The jury must inform the trial judge of its disagreement so that the judge will know what testimony is in dispute and can determine if the request is proper. Id. A simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under article 36.28. Id. Therefore, the trial court erred when it read the testimony to the jury without first determining if the jury disagreed about the requested testimony. We next consider whether appellant was harmed by the error. See DeGraff v. State, 934 S.W.2d 687, 688 (Tex.Crim.App.1996) (holding that appellate court erred in not conducting harm analysis after determining trial court did not comply with article 36.28).

Appellant contends article 36.28 is the “course of law” that is “due or prescribed in the trial of a criminal case” and he was denied “due process of law” when the trial court did not comply with article 36.28.⁵ Therefore, appellant urges US to conduct our harm analysis under Appellate Rule of Procedure 44.2(a) (constitutional error), rather than Rule 44.2(b) (other errors). Appellant provides no support for this contention. The requirement that a trial judge first determine whether a jury disagrees about a witness’s testimony before reading the testimony to the jury is not mandated in either our state or federal constitutions. This requirement is purely a creation of the Legislature. Thus, the error did not constitute the denial of a constitutional right, and a harm analysis under Rule 44.2(a) is not required.

Rule 44.2(b) states “Any other error ... that does not affect substantial rights must be disregarded.” Tex.R.App. P. 44.2(b). The Court of Criminal Appeals has interpreted “substantial right” as follows: “A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997).

In the appendix, we have reproduced in full the testimony covered by the jury’s request. The testimony, which is appellant’s account of the struggle, is favorable to appellant. We can conceive of no prejudice to appellant by the trial court permitting the reading of any of this testimony to the jury. Accordingly, the trial court’s error does not constitute reversible error.

We overrule point of error one.

In point of error two in his appeal of the aggravated assault conviction, appellant asserts he was denied effective assistance of counsel. Appellant advances the same arguments under this point of error that he advanced under his sole point of error in the appeal of the cocaine possession conviction. For the reasons already expressed in this opinion (no possible prejudice to appellant with regard to reading the testimony back, and presumption of proper trial strategy with regard to the remainder of appellant’s complaints), we overrule point of error two.

We affirm the judgment.

Justice O’CONNOR dissenting.

APPENDIX

The following testimony of appellant appears at pages 192, 194, 220-222 of the reporter’s record:

Q. Okay. How did that fight, the third fight, end?

A. I got knocked off my feet. I got knocked from the hallway into the bathroom. The — that’s when I noticed the bathroom door was off the hinges. The bathroom door had already been knocked off its — some— some form — some way or another, it had been knocked off the hinges and was broken in half. It was laying in the floor of the bathroom. I landed on top of it.

Q. And what happened next?

A. Luis got on top of me and began choking me.

Q. Then what happened?

A. Then Patricia came in the bedroom and they talked in Spanish. Luis was holding — was just holding me down at this point. I was — I was pretty spent by now.

[[Image here]]

Q. Were you being choked?

A. No, I was not being choked during the conversation. I was being choked just prior to the conversation and after the conversation. But during the conversation, I was just being held down. I was unable to get up.

Q. Can you understand why Luis might have wanted to hold you down?

A. Yes, sir.

Q. What happened next?

A. After Patricia left the bathroom, I’m not — I’m not — I’m not going to be good at guessing this time. It seemed like an hour, but it was probably more like 10 minutes or so. Luis continued to beat me and choke me and on top of me. I never got out of the bathroom floor.

[[Image here]]

Q. And he was choking you?

A. Only in the bathroom at the end.

Q. How long did he choke you?

A. Off and on for maybe five' or ten minutes. He wasn’t — I wouldn’t say choking as to kill me. He was holding me by the neck, holding me down by the neck.

Q. Well, wouldn’t you say that if somebody is holding you down by the neck, they’re choking you?

A. Well, I consider choking as someone who can’t breath [sic], I could breath [sic],

Q. I see.

A. I just could not get up.

Q. You wouldn’t be saying that he wasn’t choking you, he was just holding you down because there are no bruises on your neck, would you?

A. I hadn’t thought about that.

Q. You’d agree with me that there were no bruises on your neck, right?

A. I can’t say if there were any bruises or not. I didn’t see my neck.

Q. So we’d agree, then, that he wasn’t choking you, he was just holding you down; is that right?

A. He was on top of me, yes, sir.

[[Image here]]

Q. After that fight ended, sir, you found yourself in the bathroom; is that right?

A. That’s correct.

Q. And Luis was holding you down, you said, choking you somewhere around 10 minutes. And it was after that that the police arrived; is that right?

A. That’s correct.

Q. So you were, then — after that fight, before the police arrived, it must have been around — somewhere around 10 to 15 minutes; is that right?

A. Counting the choking, probably 15 minutes.

1 . Trial Court Cause No. 741,537; Appellate Cause No. 01-97-00645-CR.

2 . Trial Court Cause No. 741,538; Appellate Cause No. 01-97-00644-CR.

3 . The five pages of testimony are reproduced in an Appendix to this opinion.

4 . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

5 . Although appellant's argument invokes both state and federal constitutional protections, he has not separated his points of error in such a way as to argue a separate ground of relief under the Texas Constitution; nor has he argued how the protection provided under the Texas Constitution differs from that provided under the United States Constitution. Therefore, we must assume that he is claiming no greater protection under the Texas Constitution than that provided by the United States Constitution. Muniz v. State, 851 S.W.2d 238, 251-52 (Tex.Crim.App.1993).