Jones, Bonnie v. State ( 2000 )

NUMBERS 13-98-490-CR AND 13-98-502-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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BONNIE JONES,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 105th District Court of Nueces County, Texas.

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O P I N I O N

Before Justices Hinojosa, Yañez and Chavez Opinion by Justice Yañez

Bonnie Jones brings two appeals before this Court challenging his conviction for driving while intoxicated⁽¹⁾ and his sentence following revocation of his community supervision.⁽²⁾ Because these two appeals involve the same facts and are closely related, we will address them in one opinion. In cause number 13-98-502-CR we affirm as modified, in cause number 13-98-490-CR we affirm.

Background

On October 15, 1997, Bonnie Jones pleaded guilty to the offense of delivery of cocaine, a state jail felony. See Tex. Health & Safety Code Ann. § 481.112 (b) (Vernon Supp. 2000). The trial court sentenced Jones to two years in a state jail facility. Imposition of the sentence was suspended and Jones was placed on three years community supervision. On November 16, 1997, Jones was arrested for driving while intoxicated.

Jones was tried before a jury and found guilty of driving while intoxicated ("DWI"), enhanced to a third degree felony because of two prior DWI convictions. See Tex. Pen. Code Ann. §§ 49.04, 49.09 (Vernon Supp. 2000). The trial court sentenced Jones to seven years confinement in the Texas Department of Criminal Justice, Institutional Division. The court further ordered that Jones receive credit for the time he had spent in jail between the time of his arrest and the trial.

After imposing sentence on the DWI charge, the trial court held a hearing on the State's motion to revoke Jones's community supervision. The court found that Jones had violated the terms of his community supervision, ordered his community supervision revoked and further ordered that Jones serve the original two year sentence. The court ordered that the time Jones spent in jail following his DWI arrest not be credited towards this two year sentence. The court further ordered that the two sentences be served concurrently.

Jones complains of error in both the trial for DWI and the revocation of community supervision. We will discuss the revocation and the trial separately.

The Revocation of Community Supervision

In his sole issue presented in cause number 13-98-502-CR, Jones argues the trial court erred in refusing to give him credit for time served in jail pending his being served with capias on the motion to revoke. A defendant is entitled to credit on "his sentence for the time that the defendant has spent in jail in said cause . . . from the time of his arrest and confinement until his sentence by the trial court." Tex. Code Crim. Proc. Ann. art. 42.03, § 2 (Vernon Supp. 2000); Ex Parte Canada, 754 S.W.2d 660, 665 (Tex. Crim. App. 1988). This provision has been applied to the revocation of community supervision. Guerra v. State, 518 S.W.2d 815, 817 (Tex. Crim. App. 1975). A defendant who is arrested pending a motion to revoke community supervision is entitled to have the pre-revocation confinement applied to his sentence upon imposition of the sentence following revocation. Id.

In the case now before this Court, Jones was served with the capias on the motion to revoke on May 11, 1998, while he was confined awaiting his trial for the DWI charge. From that point in time, Jones was in jail on both his DWI charge as well as for his probation revocation. This situation is analogous to cases in which a prisoner in one jurisdiction has a detainer or hold filed against him by another jurisdiction. See Ex parte Bynum, 772 S.W.2d 113 (Tex. Crim. App. 1989); January v. State, 811 S.W.2d 631 (Tex. App.--Tyler 1991, pet. ref'd).

A person confined either physically or constructively by a jurisdiction upon the lodging of a detainer against him by another jurisdiction is entitled to credit for the time he spends incarcerated under that detainer. Bynum, 772 S.W.2d at 114-15. It is not the fact that the prisoner is already incarcerated "which determines whether credit should be given; rather, it is the fact that another jurisdiction has chosen to lodge a hold against the individual." Id. at 115. When a detainer is lodged against a prisoner, the basis for the prisoner's confinement is changed. Id. The filing of the detainer may have adverse effects upon the prisoner, such as a curtailment of privileges. Id. Under such circumstances, "fairness dictates that the spirit of [article] 42.03 be followed." Id.

In the case now before the Court, Jones was already incarcerated when he was served with the capias on the motion to revoke his probation. At that point in time, the basis for his incarceration was changed. The filing of the capias could have had an adverse effect on Jones, such as preventing his release on bail. Jones is entitled to credit for the time he spent in jail following his being served with capias on the motion to revoke his probation. Jones's sole issue in cause number 13-98-502-CR is sustained. The judgment of the trial court is modified to reflect credit for time served by Jones from May 11, 1998, through August 25, 1998. The judgment of the trial court as MODIFIED is AFFIRMED.

The Conviction for Driving While Intoxicated

Jones presents two issues on appeal in cause number 13-98-490-CR, challenging his DWI conviction. In his first issue, Jones argues that the trial court erred during the guilt-innocence phase of the trial by admitting evidence of his criminal record. In his second issue, Jones argues that his trial counsel was ineffective and he was thus deprived of his Sixth Amendment right to counsel.

At trial the State offered in evidence records of Jones's pleas of no contest to a DWI charge in Travis County and a DWI charge in Nueces County, as well as Jones's driving record, as produced by the Texas Department of Public Safety, Driver Licensing and Control Service. Jones objected to the admission of the driving record and the Travis County plea of no contest. Because Jones did not object at trial to the admission of the records of his plea of no contest to the earlier DWI charge in Nueces County, he has not preserved any complaint to this evidence for appellate review. Tex. R. App. P. 33.1.

Jones also failed to preserve any objection to the admission of his driving record. Although Jones stated to the trial court that he objected to the admission of the driving record, he offered no basis for the objection, instead arguing about the admissibility of the records of the Travis County DWI plea. Jones stated to the trial court that he "would object" to the driving record, but he failed to state any basis for the objection. Unless the basis for an objection is manifestly self-evident from the context, to preserve any error an objecting party must state, with clarity, both the nature of, and the legal basis for, the objection. Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996). The basis for Jones's objection to the admission of his driving record is not manifestly self-evident. It may have been possible, for example, that Jones sought to object on the grounds that the State had failed to properly authenticate the records, or that they were hearsay, or lacked relevance. We find that Jones's statement, that he objected to the evidence, without any explanation, was insufficient to state either the nature of his objection, or the legal basis for the objection; therefore he has failed to preserve error.

Jones's objection to the admission of the Travis County records was essentially a challenge to the validity of the plea. Jones argued to the trial court that the plea lacked the waivers necessary when entering a plea. Decisions on the admissibility of evidence are left to the discretion of the trial court, and will not be disturbed absent a clear abuse of discretion. Werner v. State, 711 S.W.2d 639, 644 (Tex. Crim. App. 1986); Ramos v. State, 819 S.W.2d 939, 941 (Tex. App.--Corpus Christi 1991, pet. ref'd). In the case now before the Court, we do not find that the trial court abused its discretion by admitting in evidence records of Jones's plea in the Travis County DWI case. Allegations by Jones that his plea in the Travis County case was faulty or involuntary are the types of allegations properly raised at the time the plea is made, or on appeal, not several years later when the plea is being admitted as evidence in a different case. The trial court was not in a position to address these allegations, and was within its discretion to overrule the objection. Jones's first issue on appeal in cause number 13-98-490-CR is overruled.

With his second issue, Jones argues that he suffered harm as a result of having ineffective assistance of counsel at trial. To determine if a trial counsel's representation was ineffective to the point that it violated a defendant's Sixth Amendment right to counsel, we apply the two-part test set out by the United States Supreme Court. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). To establish ineffective assistance of counsel, a defendant must show that (1) his counsel's performance fell below an objective standard of reasonableness, and (2) the defendant suffered harm as a result of his counsel's inadequate performance. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The appellant must show a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial would have been different. Id.; Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). In this context, a reasonable probability is a probability sufficient to undermine confidence in the outcome. Thompson, 9 S.W.3d at 812; Hernandez, 726 S.W.2d at 55. The purpose of this inquiry is to determine if the trial counsel's errors undermined the proper functioning of the adversarial process to the point that the trial cannot be relied on to have produced a reliable result. Thompson, 9 S.W.3d at 812. There is a strong presumption that the trial counsel provided effective assistance. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).

Jones argues that he received ineffective assistance of counsel, on the grounds that his counsel purportedly failed to object to the admission of his driving record and the documents recording his plea of no contest to the DWI charge in Travis County. Contrary to the allegations in Jones's brief, the record shows that his trial counsel did object to the admission of the Travis County records, and was overruled. As discussed above, we find no error in this evidence being admitted. However, we do find that the admission of the driving record was objectionable, and his counsel could have objected to its admission in evidence.

Generally, evidence of prior criminal convictions is not admissible at the guilt-innocence stage of trial. Thompson v. State, 612 S.W.2d 925, 928 (Tex. Crim. App. 1981). This restriction is based on the recognition that such evidence is prejudicial and can confuse the issues in the case. Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972). There are exceptions to this rule; however, we do not find any of them applicable to Jones's trial. See Tex. R. Evid. 404(b); Albrecht, 486 S.W.2d at 100-01. This evidence should not have been admitted. Jones's trial counsel erred in not adequately objecting to this evidence.

Although Jones's trial counsel had a reason to object to this evidence, his failure to do so with sufficient clarity does not qualify as an error so egregious as to cause us to hold that the trial counsel's performance fell below an objective standard of reasonableness. A defendant's right to counsel is not a right to errorless representation, judged with the perfect vision of hindsight. Holland, 761 S.W.2d at 320. Appellate courts must be "hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation." Thompson, 9 S.W.3d at 814. Our review must be highly deferential to trial counsel. Id. at 813; Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). The conduct of the defendant's counsel is viewed in the light of all the circumstances to determine if his acts or omissions were outside the wide range of professionally competent assistance. Holland, 361 S.W.2d at 314.

In the instant case, Jones's trial counsel aggressively and effectively cross- examined the officers who arrested Jones. Jones's counsel questioned the officers about the validity of their field sobriety tests. He also brought forth a witness to challenge the State's allegations that Jones was intoxicated at the time of his arrest. In reviewing the conduct of Jones's counsel, we find that he provided Jones with satisfactory representation.

Despite the efforts of Jones's attorney, the State presented a strong case against Jones, including testimony by the officers that Jones had been swerving before being stopped and failed to perform well on the field sobriety tests. The State also introduced the videotape of Jones performing the field sobriety tests. The jury requested to view this tape during deliberations. Viewed in the light of all the circumstances, Jones's counsel performed within the range of professionally competent representation. Furthermore, Jones has failed to show a reasonable probability that, but for the erroneous admission of his driving record, the result of his trial would have been different. Issue number two in cause number 13-98-490-CR is overruled and the judgment of the trial court is affirmed.

We modify the judgment of the trial court in cause number 13-98-502-CR to credit Jones with time served from May 11, 1998 through August 25, 1998, and AFFIRM as MODIFIED. We AFFIRM the judgment of the trial court in cause number 13-98-490-CR.

LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 16th day of November, 2000.

1. Cause number 13-98-490-CR.

2. Cause number 13-98-502-CR.