Sunday Agbogwe v. State , 2013 Tex. App. LEXIS 11103 ( 2013 )

Opinion issued August 29, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00207-CR
NO. 01-12-00208-CR
———————————
SUNDAY AGBOGWE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 12
Harris County, Texas
Trial Court Case Nos. 1767858 & 1767859
OPINION
A jury convicted appellant, Sunday Agbogwe, of two counts of the
misdemeanor offense of assault. 1 The trial court assessed punishment at one year’s
1
See TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon 2011). The assault against
Eucharia Ozoh was tried in cause number 1767858 and resulted in appellate cause
confinement, suspended for one year, and a $500 fine in cause number 1767858
and twenty days’ confinement in cause number 1767859, to run concurrently. The
trial court also made an affirmative finding of family violence in both cause
numbers. In ten issues, appellant contends that (1) the trial court erred in admitting
evidence about his ethnicity; (2)–(9) his trial counsel rendered ineffective
assistance of counsel under both the United States and Texas constitutions; and
(10) the trial court erroneously included an affirmative finding of family violence
in the judgment for cause number 1767859. The State raises a cross-point and
contends, in cause number 1767858, that the trial court orally pronounced a fine of
$1,000 but assessed a $500 fine in its written judgment.
We modify the judgments of the trial court and affirm as modified.
Background
Appellant was in a dating relationship and lived with one of the
complainants, Eucharia Ozoh, and they operated a bar together. On June 18, 2011,
appellant, who is Nigerian, hosted a traditional Nigerian event called a “wake
keeping” at the bar. A wake keeping is a party honoring a member of the
community who has had a death in the family. In preparation for the event, Ozoh
bought several bottles of liquor. She testified that the drinks served at this party
needed to be purchased and that the bottles were not to be given away to the
number 01-12-00207-CR. The assault against Brenetha Caldwell was tried in
cause number 1767859 and resulted in appellate cause number 01-12-00208-CR.
2
guests. She asked her friend Brenetha Caldwell, the other complainant, to assist
her in serving guests at the party. It is undisputed that Caldwell is not related to
appellant and that she was not a member of appellant’s household. Ozoh also
testified that Majerum McCarthy, whom she knew but was not friends with, was
also present and helping serve.
During the course of the evening, Ozoh observed appellant handing out
bottles of liquor to guests without requiring payment. Ozoh saw appellant give a
guest the last bottle of cognac, worth $100, and Ozoh approached the guest and
asked him if he needed the entire bottle because that was the last bottle and the
party was still ongoing. The guest replied that he did not need the entire bottle,
and he gave the bottle back to Ozoh. As Ozoh placed the bottle back on the shelf,
appellant “swung at [her]” with his fist. Appellant hit her twice and continued to
hit her as she fell to the floor, at which point appellant kicked her on her back.
Caldwell tried to intervene, and appellant started hitting her as well. When the
police arrived, after Caldwell called 9-1-1, Ozoh was hesitant to talk to them. She
acknowledged that she had asked the State to drop the charges against appellant
because she was scared. She testified that appellant, as well as friends of his, had
asked her to drop the charges. Defense counsel did not object to this testimony.
The State asked, “Even though you wanted to drop charges, does that mean—are
you saying that it didn’t happen?” Ozoh responded, “It happened.”
3
During Ozoh’s testimony, the State asked her about the circumstances under
which she and appellant decided to go into business together. She stated that
appellant had previously owned a medical supply business and that he was having
difficulties with one of his employees. When Ozoh and appellant were discussing
these problems, appellant told her that he and the employee “had a big altercation
in the office and police came and that he almost hit her.” Defense counsel
objected, and the trial court sustained the objection. Defense counsel did not
request a limiting instruction or an instruction to disregard this testimony.
Caldwell testified that Ozoh showed her that appellant was charging guests
for drinks and then pocketing the money instead of putting it in the cash register.
Neither Ozoh nor Caldwell confronted appellant about this. Later, Caldwell saw
Ozoh walk up to a guest after appellant had given him the last bottle of cognac and
ask if he would mind letting her have the bottle so she could continue to serve the
guests. The guest gave the bottle back. Ozoh was standing next to Caldwell as she
put the bottle back on the shelf, and Caldwell testified that “everything was quiet-
like and all [of a] sudden, I just looked and [appellant] was beating [Ozoh].”
Caldwell saw appellant beating Ozoh on the top of her head with his fist and
kicking her in her side. Caldwell tried to shield Ozoh from appellant’s blows, but
appellant then pulled Caldwell over Ozoh and hit her on the left side of her face
with a closed fist. Caldwell ran outside and called 9-1-1. The responding police
4
officer noticed redness in the area where appellant had hit Caldwell, and she had a
bruise several days later.
Caldwell testified that, while the case was pending, Ozoh and friends of
appellant asked her to drop the charges against appellant. She also testified that
appellant’s friends asked her not to comply with the subpoena issued to her in the
case and not to show up in court. These individuals offered to pay any fines that
Caldwell incurred for her noncompliance. Defense counsel did not object to this
testimony.
Houston Police Department Officer J. Morant testified that she responded to
a 9-1-1 call concerning two assaults at the bar. Caldwell, who was standing
outside when Officer Morant arrived, looked “a little upset” and was “a little
shaky,” but she was able to tell Morant about what had happened. Ozoh did not
want to speak with Officer Morant initially, but she did eventually speak with her.
Officer Morant described Ozoh’s demeanor as “really nervous.” Officer Morant
observed “some redness” on the area near Caldwell’s ear.
McCarthy testified that she was bartending at the bar on June 18, 2011. At
one point during the evening, Ozoh showed McCarthy that appellant was giving
away liquor. McCarthy saw Ozoh ask the guest who received the liquor if he
wanted to buy it. After that, Ozoh and appellant “started back and forth with one
another, I guess, about the situation; and then [appellant] hit [Ozoh]” with his fist,
5
and Ozoh fell to the floor. McCarthy only saw appellant hit Ozoh once. After
Ozoh fell to the floor, Caldwell came over, crouched down on the floor with Ozoh,
and asked appellant what he was doing. In response, appellant hit Caldwell with a
closed fist.
On re-direct examination of McCarthy, the prosecutor approached the bench
and informed the trial court that she “would like to ask this witness about the
extraneous criminal mischief when the defendant came back [to the bar] the next
day and damaged property . . . .” The trial court refused to allow the State to
explore this line of questioning.
On cross-examination of Ozoh, which occurred the day after McCarthy
testified, defense counsel asked whether she changed the locks on the doors to the
bar after this incident. Ozoh responded that she did. The following exchange then
occurred:
[Defense counsel]: And did that then eliminate [appellant’s]
entry into the bar?
[Ozoh]: It did not.
[Defense counsel]: And now, did [appellant] rekey the locks?
[Ozoh]: He did.
[Defense counsel]: Did you complain about that?
[Ozoh]: He did and vandalized the place. He did
rekey it, went there, vandalized, and took
every single thing in that bar.
6
On re-direct examination, the State questioned Ozoh about this vandalism, and the
trial court admitted ten photographs which depicted missing television sets, a
broken mirror, and paint splashed on a wall of the bar.
Pat Otalor testified on appellant’s behalf and stated that she was present at
the bar on the night of the incident. She stated that guests at a wake keeping are
not expected to pay for their drinks. Otalor was able to see appellant and Ozoh
having an argument, but she did not see either Ozoh or Caldwell fall to the floor.
Daniel Nwatune, another guest at the party, testified that he told appellant
that he needed some cognac. Right after appellant gave him the drink, Ozoh
“snatched” the drink away in an aggressive and impolite manner and asked him if
he had paid for the drink. As they were talking, appellant came back over and
Nwatune explained the situation. Appellant and Ozoh then started arguing, and
Ozoh shouted at appellant. Nwatune testified that appellant and Ozoh argued, but
appellant did not hit Ozoh or Caldwell.
Gladys Uwagboi testified that she heard Ozoh say, “I will show him, I will
tell him that he’s a little rat.” She did not see appellant hit Ozoh. Festus Irabor
testified that he also heard Ozoh call appellant a “little rat” and that, although he
saw appellant and Ozoh arguing, he did not see anyone get hit during the party.
Appellant testified on his own behalf. He stated that he was surprised when
Ozoh and Caldwell arrived at the party because they were not invited. He did not
7
remember seeing McCarthy at the party at all. He stated Nwatune requested a
bottle of cognac, and, after he gave him the bottle, Nwatune told him that Ozoh
had snatched the bottle away from him. When appellant questioned Ozoh about
this, Ozoh “just went off on [him].” Some of the guests took appellant outside to
defuse the situation.
Appellant testified that he did not intend to vandalize the bar when he went
to it the next day. He called a locksmith to let him in the building, and, once
inside, he decided to remove all of the things in the bar that he had purchased
himself, including the television sets. He used a ladder to remove one of the
televisions, and, at one point, the ladder fell and smashed a mirror. He also
testified that paint got on a wall and the floor when he picked up a paint can that he
did not know was partially opened.
During the State’s cross-examination of appellant, the following exchange
occurred:
[State]: You’re from Nigeria, correct?
[Appellant]: Yes, ma’am.
[State]: And in the Nigerian culture, women
typically take a subservient role to the man,
correct?
[Appellant]: What do you mean?
[Defense counsel]: Objection, Judge.
The Court: Overruled.
8
[Appellant]: What do you mean? I don’t understand
what you mean by that.
[State]: The man is usually, for lack of a better
word, the boss of the family?
[Appellant]: I don’t know about that.
[Defense counsel]: Objection, Judge. It is speculation.
The Court: Overruled. He says no. I overrule the
objection.
[State]: So, you don’t know?
[Appellant]: No, I don’t know about that.
The State then asked appellant if it bothered him that Ozoh had a more dominant
role in their relationship. Appellant responded that it did not. Defense counsel did
not object to this question.
The State also had the following exchange with appellant later in cross-
examination:
[State]: Do you remember threatening Ms. Ozoh by
emulating a gun and telling her that if
anything happens to you—
[Defense counsel]: Objection.
[Appellant]: That’s not true.
[Defense counsel]: It’s out of character and—
The Court: That’s not a legal objection. Overruled.
[State]: Do you remember emulating a gun and
telling her if anything happened to you,
you’re going to kill her and you’re going to
kill Ms. Caldwell?
[Appellant]: It’s all allegation. That is not true.
9
The State then recalled Ozoh in rebuttal. The following occurred:
[State]: And Nigerian culture, would they prefer to
take care of something like this assault
within the community or are they okay with
us including—
[Defense counsel]: Objection. Relevance.
The Court: Overruled.
[Ozoh]: It’s very common.
[State]: I’m sorry?
[Ozoh]: It happens. And it’s not looked at as
anything wrong. A husband can beat up a
wife, a man can beat up a woman and
nothing happens to them.
Defense counsel did not object to Ozoh’s answer.
The State referenced appellant’s and Ozoh’s testimony during closing
argument:
We also talked about how the Nigerian community would like to keep
this incident within that community. And that is reflected within the
9-1-1 call. They don’t want anybody calling 9-1-1. They don’t want
the police in their business. So, what do they do? They get up here
and tell you nothing happened. That way, he gets to walk away and
it’s kept in the community. But if you come back with a not guilty
verdict, that tells him what he’s done is absolutely right. He is free in
this country to beat any woman that he wants, that is absolutely
inappropriate. The correct verdict in this case is a guilty verdict.
The State also, during closing argument, reminded the jury that the case was about
whether appellant assaulted Ozoh and Caldwell, and, to that end, the testimony
10
about the vandalism of the bar was not relevant. The State urged the jury not to
“worry about these side issues, they really aren’t relevant.”
The jury found appellant guilty of both counts of assault. When the trial
court orally pronounced appellant’s sentence for cause number 1767858, the
assault on Ozoh, it sentenced appellant to one year’s confinement, suspended the
sentence, and placed him on community supervision for two years. It also imposed
a $1,000 fine. For cause number 1767859, the assault on Caldwell, it sentenced
appellant to twenty days’ confinement.
The written judgments for both convictions included an affirmative family
violence finding pursuant to Code of Criminal Procedure article 42.013. The
judgment for cause number 1767858 also stated that appellant was to be placed on
community supervision for one year, and it imposed a $500 fine.
Appellant did not move for a new trial. This appeal followed.
Admission of Evidence of Ethnicity
In his first issue, appellant contends that the trial court erred in allowing
testimony concerning his ethnicity, specifically, appellant’s testimony concerning
whether, in Nigerian culture, women usually take a subservient role to men and
Ozoh’s testimony that the Nigerian community tends to keep matters such as
assaults within the community and that men can beat women with impunity in the
community. Appellant contends that this testimony violates his due process rights.
11
A. Appellant’s Constitutional Argument
We agree with appellant that “[r]acially prejudicial remarks and appeals to
racial prejudice have no place in a courtroom.” Bryant v. State, 25 S.W.3d 924,
926 (Tex. App.—Austin 2000, pet. ref’d) (citing Allison v. State, 248 S.W.2d 147,
148 (Tex. Crim. App. 1952)). We do not believe, however, that the trial court’s
allowance of the complained-of questions and testimony rises to the level of
fundamental error, such that appellant was not required to comply with the general
rules of error preservation before presenting, for the first time on appeal, his
complaint that the questions violated his due process rights.
The Fourteenth Court of Appeals’ opinion in Moreno v. State is instructive.
See 195 S.W.3d 321 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Moreno
involved the question of whether the defendant’s due process rights were violated
when the State referred to his status as an illegal immigrant during closing
argument and argued that this status warranted a more severe punishment than
community supervision. Id. at 328–29. The prosecutor in Moreno made the
following argument:
You heard him testify that he walked over here, he walked across the
border illegally. You know what he’s going to do if you put him on
probation? He’s going to walk right back. That is no punishment at
all. Even if he is put on probation, he can’t meet the terms of his
probation. He’s here illegally, he’s automatically in violation of the
law. Automatically in violation of federal law by his mere presence
because he is here illegally. He has to work faithfully at employment.
12
He can’t work if he is here illegally. He has to remain within a
specified place. He’s not going to do that . . . .
He comes over here illegally and poisons our society with all these
drugs. If he wants to deal heroin, why doesn’t he go back to Mexico
and do it in his own country instead [of] coming here and poisoning
our citizens of Harris County and selling these drugs in our
community?
Id. at 328. Moreno did not object to this argument. Id.
On appeal, Moreno argued that an objection to the State’s argument was not
necessary because the argument violated his fundamental rights. Id. at 329. The
Fourteenth Court of Appeals disagreed, relying on the Court of Criminal Appeals’
decision in Cockrell v. State, which had held that the defendant’s failure to object
to an allegedly improper jury argument forfeited his right to complain about the
argument on appeal. Id. (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim.
App. 1996)). The Moreno court noted that the Court of Criminal Appeals had
applied Cockrell even in cases in which the closing argument allegedly violated the
defendant’s due process rights. Id. (citing Ladd v. State, 3 S.W.3d 547, 569–70
(Tex. Crim. App. 1999)). The court ultimately held that “even if the complained-
of argument violated appellant’s due process rights and even if it could not have
been cured by an instruction to disregard, appellant failed to preserve error by his
failure to voice an objection in the trial court.” Id.
Although Moreno involved allegedly improper jury argument and this case
involves allegedly improper questioning, we follow Moreno in holding that the
13
trial court’s allowance of the State’s questions in this case does not constitute
fundamental error. See id.; see also Clark v. State, 365 S.W.3d 333, 340 (Tex.
Crim. App. 2012) (noting that fundamental error occurs when certain constitutional
rights are violated but holding that defendant “forfeited his denial-of-due-process
claim by not properly preserving error at trial”). As such, to preserve his
complaint that the State’s questions violated his due process rights, appellant was
required to object on this basis to the trial court.
Generally, to preserve error, the complaining party must make a timely
request, objection, or motion that states the grounds for the ruling sought with
sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds were apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A).
To avoid forfeiting a complaint on appeal, the complaining party must “let the trial
judge know what he wants, why he thinks he is entitled to it, and to do so clearly
enough for the judge to understand him at a time when the judge is in the proper
position to do something about it.” Pena v. State, 285 S.W.3d 459, 464 (Tex.
Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.
App. 1992)). This gives both the trial court and the opposing party a chance to
correct the error. Id. (citing Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App.
2005)). The trial court needs to be presented with and have the chance to rule upon
the defendant’s specific constitutional objection “because it can have such heavy
14
implications on appeal.” Clark, 365 S.W.3d at 340 (holding that trial court “should
know when it is being asked to make a constitutional ruling because constitutional
error is subject to a much stricter harm analysis on appeal”). “Whether a party’s
particular complaint is preserved depends on whether the complaint on appeal
comports with the complaint made at trial.” Pena, 285 S.W.3d at 464 (citing
Reyna, 168 S.W.3d at 177). We consider both the context in which the
complainant was made and the parties’ shared understanding at that time. Id.
Here, during cross-examination of appellant, the following exchange
occurred:
[State]: And in the Nigerian culture, women
typically take a subservient role to the man,
correct?
[Appellant]: What do you mean?
[Defense counsel]: Objection, Judge.
The Court: Overruled.
[Appellant]: What do you mean? I don’t understand
what you mean by that.
[State]: The man is usually, for lack of a better
word, the boss of the family?
[Appellant]: I don’t know about that.
[Defense counsel]: Objection, Judge. It is speculation.
The Court: Overruled. He says no. I overrule the
objection.
[State]: So you don’t know?
[Appellant]: No, I don’t know about that.
15
Defense counsel did not object on due process or other constitutional grounds, and
there is no indication that either the trial court or the State understood defense
counsel to be making a constitutional objection. Then, when the State called Ozoh
as a rebuttal witness, the following occurred:
[State]: And Nigerian culture, would they prefer to
take care of something like this assault
within the community or are they okay with
us including—
[Defense counsel]: Objection. Relevance.
The Court: Overruled.
[Ozoh]: It’s very common.
[State]: I’m sorry?
[Ozoh]: It happens. And it’s not looked at as
anything wrong. A husband can beat up a
wife, a man can beat up a woman and
nothing happens to them.
Again, defense counsel objected solely on relevance grounds, and he did not raise a
due process or other constitutional objection to this questioning. We conclude that
appellant failed to preserve for appellate review his complaint that the State’s
questioning of him and Ozoh violated his due process or other constitutional rights.
See Clark, 365 S.W.3d at 340 (holding that defense counsel’s “badgering, sidebar,
argumentative, invading the province of the jury, and mischaracterization”
objections did not preserve due process complaint for appellate review).
16
B. Appellant’s Evidentiary Objections
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing
Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see also Gallo v.
State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (“The admissibility of a
photograph is within the sound discretion of the trial judge.”). We will not reverse
the trial court’s ruling unless the ruling falls outside the zone of reasonable
disagreement. Torres, 71 S.W.3d at 760; see also Taylor v. State, 268 S.W.3d 571,
579 (Tex. Crim. App. 2008) (holding that trial court abuses its discretion only if its
decision is “so clearly wrong as to lie outside the zone within which reasonable
people might disagree”). In applying the abuse of discretion standard, we may not
reverse a trial court’s admissibility decision solely because we disagree with it.
Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb a
trial court’s evidentiary ruling if it is correct on any theory of law applicable to that
ruling. De La Paz v. State, 279 S.W.3d 335, 344 (Tex. Crim. App. 2009).
Defense counsel objected to the State’s questioning of appellant solely on
speculation grounds, and the trial court overruled this objection. On appeal,
appellant presents no argument or authorities that the question called for
speculation or that appellant lacked the personal knowledge necessary to answer
the questions. See Higgins v. State, 924 S.W.2d 739, 745 (Tex. App.—Texarkana
17
1996, pet. ref’d) (analyzing complaint that trial court allowed speculative
testimony under Rule of Evidence 602, which requires witness to have personal
knowledge of matter to which he is testifying); see also TEX. R. EVID. 602. As a
general rule, the failure to present any argument on appeal with respect to a
particular issue waives that issue. See Bridgewater v. State, 905 S.W.2d 349, 354
n.5 (Tex. App.—Fort Worth 1995, no pet.).
Defense counsel objected to the relevance of the State’s question posed to
Ozoh of whether the Nigerian community prefers to handle matters such as
assaults within the community itself. Relevant evidence is evidence that has “any
tendency to make the existence of any fact that is of consequence of the
determination of the action more probable or less probable than it would be
without the evidence.” TEX. R. EVID. 401. Defense witnesses may be impeached
with evidence of bias or interest. Moreno v. State, 22 S.W.3d 482, 486 (Tex. Crim.
App. 1999); London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987) (“The
general rule is that either party is entitled, subject to reasonable restrictions placed
by the trial judge, to show any relevant fact which would or might tend to establish
ill feeling, bias, motive, interest or animus on the part of any witness testifying
against him.”); see also Sparks v. State, 943 S.W.2d 513, 515 (Tex. App.—Fort
Worth 1997, pet. ref’d) (“The credibility of a witness may be attacked by evidence
that the witness is slanting his testimony against or in favor of a party as a result of
18
personal interest or bias in the cause.”). “A successful showing of bias on the part
of a witness would have a tendency to make the facts to which he testified less
probable in the eyes of the jury than it would be without such testimony.”
McKnight v. State, 874 S.W.2d 745, 746 (Tex. App.—Fort Worth 1994, no pet.).
As the State points out, appellant called several witnesses to testify on his
behalf, all of whom are members of the Nigerian community and all of whom
testified that, although they saw appellant and Ozoh arguing, they did not see this
argument escalate into an argument involving physical violence. Testimony that
members of the Nigerian community generally prefer to handle themselves matters
that are otherwise appropriate for law enforcement is relevant to the question of
whether appellant’s witnesses are biased against the State, which ultimately affects
their credibility. 2 See London, 739 S.W.2d at 846 (“[T]he general rule is that the
State is clearly entitled to show any bias a defense witness might have against the
State or the prosecutor.”). We conclude that the trial court did not abuse its
discretion in overruling defense counsel’s relevance objection to the question
posed to Ozoh.
We overrule appellant’s first issue.
2
We note that the State also questioned Daniel Nwatune concerning the Nigerian
community’s preference for keeping criminal matters within the community.
During this line of questioning, defense counsel objected twice, on speculation and
argumentative grounds. Defense counsel did not object on the basis of relevance.
19
Ineffective Assistance of Counsel
In his second through ninth issues, appellant contends that he received
ineffective assistance of counsel under the United States and Texas constitutions3
when his trial counsel (1) elicited testimony concerning alleged extraneous bad
acts; (2) failed to object to evidence that appellant had requested that both
complainants drop the charges against him; (3) failed to request a limiting
instruction after the trial court sustained his objection to Ozoh’s testimony
regarding appellant’s altercation with a prior business partner; and (4) failed to
request a limiting instruction after the trial court sustained his objection to
testimony concerning an alleged threat appellant made to Ozoh.
A. Standard of Review
To establish a showing of ineffective assistance of counsel, an appellant
must demonstrate, by a preponderance of the evidence, that (1) his counsel’s
performance was deficient and (2) there is a reasonable probability that the result
of the proceeding would have been different but for his counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
3
Because appellant presents no argument or authority that the Texas Constitution
provides different protection than the United States Constitution in the ineffective
assistance of counsel context, we make no distinction between his state and federal
claims. See Garcia v. State, 308 S.W.3d 62, 65 n.1 (Tex. App.—San Antonio
2009, no pet.) (citing Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993)
and Sturchio v. State, 136 S.W.3d 21, 23 (Tex. App.—San Antonio 2002, no
pet.)).
20
(1984); Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Cannon v.
State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). The appellant’s failure to
make either of the required showings of deficient performance and sufficient
prejudice defeats the claim of ineffective assistance. Rylander v. State, 101
S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d
675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of
the Strickland test negates a court’s need to consider the other prong.”).
The appellant must first show that his counsel’s performance fell below an
objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.
1999). The second prong of Strickland requires the appellant to demonstrate
prejudice—“a reasonable probability that, but for his counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
We indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and, therefore, the appellant must
overcome the presumption that the challenged action constituted “sound trial
strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review
21
is highly deferential to counsel, and we do not speculate regarding counsel’s trial
strategy. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To
prevail on an ineffective assistance claim, the appellant must provide an appellate
record that affirmatively demonstrates that counsel’s performance was not based
on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see
Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate
alleged ineffectiveness).
In the majority of cases, the record on direct appeal is undeveloped and
cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65
S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 504–05, 123 S. Ct.
1690, 1694 (2003) (“If the alleged error is one of commission, the record may
reflect the action taken by counsel but not the reasons for it. The appellate court
may have no way of knowing whether a seemingly unusual or misguided action by
counsel had a sound strategic motive or was taken because the counsel’s
alternatives were even worse. The trial record may contain no evidence of alleged
errors of omission, much less the reason underlying them.”). Because the
reasonableness of trial counsel’s choices often involves facts that do not appear in
the appellate record, the Court of Criminal Appeals has stated that trial counsel
should ordinarily be given an opportunity to explain his actions before a court
reviews that record and concludes that counsel was ineffective. See Rylander, 101
22
S.W.3d at 111; Bone, 77 S.W.3d at 836; Mitchell v. State, 68 S.W.3d 640, 642
(Tex. Crim. App. 2002).
B. Counsel’s Alleged Errors
1. Eliciting Extraneous Bad Acts Testimony
In his second and third issues, appellant contends that defense counsel
rendered ineffective assistance when he elicited testimony from Ozoh concerning
appellant’s alleged subsequent vandalism of the bar after the trial court had already
refused to allow the State to question McCarthy about this topic.
Courts have held that allowing the jury to hear “prejudicial and clearly
inadmissible evidence” during the guilt phase of the trial—such as evidence
concerning the defendant’s prior convictions—“could serve no strategic value” in
cases in which the defendant’s defense “rested almost entirely on his credibility.”
Robertson v. State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006); Garcia v. State,
308 S.W.3d 62, 68 (Tex. App.—San Antonio 2009, no pet.). But see Williams, 301
S.W.3d at 687 (holding, when defense counsel informed trial court that he had
spoken with defendant about opening door to extraneous offenses and defendant
had agreed to that decision, that appellate court “will not second-guess legitimate
strategic or tactical decisions made by counsel in the midst of trial”). “Opening the
door to otherwise inadmissible extraneous offense evidence that undermines the
23
defendant’s character and credibility serves no purpose other than to prejudice the
defendant’s ability to present his defense.” Garcia, 308 S.W.3d at 69.
Here, during McCarthy’s testimony, the State approached the bench and
stated, “Your Honor, at this time I would like to ask this witness about the
extraneous criminal mischief when the defendant came back the next day and
damages property . . . .” The trial court refused to allow this line of questioning.
Then, on cross-examination of Ozoh, defense counsel asked her about the actions
that she took “in terms of the locks on the doors of the bar” after the incident.
Ozoh responded that she changed the locks. The following exchange occurred:
[Defense counsel]: And did that then eliminate [appellant’s]
entry into the bar?
[Ozoh]: It did not.
[Defense counsel]: And now, did [appellant] rekey the locks?
[Ozoh]: He did.
[Defense counsel]: Did you complain about that?
[Ozoh]: He did and vandalized the place. He did
rekey it, went there, vandalized, and took
every single thing in that bar.
Defense counsel questioned Ozoh further about appellant’s alleged vandalism of
the bar, and the State also questioned Ozoh about the vandalism on redirect. The
trial court then admitted ten pictures depicting the bar after the alleged vandalism
had occurred. These pictures reflected missing television sets, a broken mirror,
and paint on a wall. Appellant admitted that he removed the television sets that he
24
had purchased from the bar, but he denied vandalizing the bar. He stated that he
had been using a ladder to remove a television, and the ladder fell and hit the
mirror, smashing it. He also stated that he moved a paint can, but he did not
realize that the can was partially open, which is how paint ended up on a wall and
the floor. During closing argument, the prosecutor reminded the jury on three
separate occasions that the question before it was whether appellant had assaulted
Caldwell and Ozoh and that the vandalism that had occurred at the bar was not
relevant to that determination.
Even if defense counsel’s actions fell below an objective standard of
reasonableness, to establish his claim of ineffective assistance, appellant must also
demonstrate prejudice—a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812; see
also Williams, 301 S.W.3d at 687 (“An appellant’s failure to satisfy one prong of
the Strickland test negates a court’s need to consider the other prong.”). Appellant
cites the San Antonio Court of Appeals’ decision in Garcia for the proposition that
opening the door to inadmissible extraneous bad acts evidence “undermines the
defendant’s character and credibility” and is particularly prejudicial when the
defensive strategy is based “almost entirely on the defendant’s credibility versus
the complainant’s credibility.” 308 S.W.3d at 68–69.
25
Unlike in Garcia, an aggravated sexual assault case in which the primary
witnesses testifying concerning the offense itself were the defendant and the
complainant, both Caldwell and Ozoh, as well as McCarthy, a disinterested
witness, testified that appellant assaulted both complainants. Both Caldwell and
Ozoh testified that appellant or his friends later attempted to pressure them into
dropping the charges against appellant. When Ozoh was asked by the prosecutor,
“Even though you wanted to drop charges, does that mean—are you saying that it
didn’t happen?” she replied, “It happened.” Officer Morant testified that, when she
arrived at the scene, she observed redness near Caldwell’s ear, which is where
Caldwell alleged that appellant had hit her. Furthermore, during closing argument,
the prosecutor stated on three occasions that the case was not “about the vandalism
that occurred,” that the vandalism “really doesn’t have anything to do with whether
this defendant assaulted the complainants on that night,” and that the jury should
“just look at the elements that have to be proven, don’t worry about these side
issues, they really aren’t relevant.”
In light of the evidence presented, we conclude that appellant has not
established, by a preponderance of the evidence, a reasonable probability that, but
for defense counsel’s actions in eliciting testimony concerning appellant’s alleged
vandalism of the bar, the jury would have found appellant not guilty. See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068 (holding that reasonable probability
26
that result would have been different is probability sufficient to undermine
confidence in outcome). Because appellant has not demonstrated prejudice as a
result of these actions, his ineffective assistance claims relating to these actions
fails.
We overrule appellant’s second and third issues.
2. Failure to Object to Testimony that Appellant Had Requested
that the Complainants Drop the Charges
In issues four and five, appellant contends that his trial counsel rendered
ineffective assistance when he failed to object to testimony concerning requests
made to Caldwell and Ozoh by appellant and his friends in an attempt to persuade
the complainants to drop the charges against him.
Caldwell testified on direct examination that appellant’s friends had
contacted her and asked her to drop the charges against appellant. These
individuals asked Caldwell not to comply with the subpoena that had been issued,
and they assured her that, if she did not comply with the subpoena, they would pay
the fines associated with her noncompliance. Ozoh also testified that appellant and
his friends had asked her to drop the charges. Defense counsel did not object to
any of this testimony.
Appellant argues that this failure to object constituted ineffective assistance
because the evidence was not relevant. As the State points out, this Court has
previously held that “[a]n attempt to tamper with a witness is evidence of
27
‘consciousness of guilt.’” Johnson v. State, — S.W.3d —, No. 01-10-00314-CR,
2011 WL 1753209, at *2 (Tex. App.—Houston [1st Dist.] May 5, 2011, pet. ref’d)
(holding that “affidavit of non-prosecution” prepared by defendant and presented
to complainant to sign was evidence of attempt to induce complainant not to testify
and did not constitute hearsay); see also Wilson v. State, 7 S.W.3d 136, 141 (Tex.
Crim. App. 1999) (holding that defendant’s references to witness’s father and new
baby “reasonably could have been interpreted as a veiled attempt to influence [the
witness’s] testimony” and that “[s]uch an attempt to tamper with a witness is
evidence of ‘consciousness of guilt’”).
Evidence that appellant and his friends requested that Caldwell and Ozoh
drop the charges against appellant, asked Caldwell to ignore her subpoena, and
offered to pay any fines assessed against Caldwell for her noncompliance with the
subpoena is substantively admissible as evidence of consciousness of guilt.
Defense counsel’s failure to object to admissible evidence does not constitute
ineffective assistance of counsel. Lee v. State, 29 S.W.3d 570, 579–80 (Tex.
App.—Dallas 2000, no pet.); see also Ex parte Jimenez, 364 S.W.3d 866, 887
(Tex. Crim. App. 2012) (“The failure to object to proper questions and admissible
testimony . . . is not ineffective assistance.”).
Appellant also contends that defense counsel’s failure to object constituted
ineffective assistance because the State did not provide pre-trial notice of its intent
28
to use this extraneous bad acts evidence, and, therefore, evidence of these acts was
inadmissible, but defense counsel did not object to the State’s failure to provide
notice of these acts as required by Rule 404(b).
Rule of Evidence 404(b) provides that, generally, evidence of other bad acts
is not admissible to prove the character of the defendant in order to show action in
conformity with that character, but this evidence may be admissible for other
purposes “provided that upon timely request by the accused in a criminal case,
reasonable notice is given in advance of trial of intent to introduce in the State’s
case-in-chief such evidence other than that arising in the same transaction.” TEX.
R. EVID. 404(b). Absent a request for notice under Rule 404(b), the State is not
required to give such notice. Webb v. State, 995 S.W.2d 295, 298 (Tex. App.—
Houston [14th Dist.] 1999, no pet.). If the State provides notice voluntarily, it has
a duty to provide information that is complete. Blackmon v. State, 80 S.W.3d 103,
108 (Tex. App.—Texarkana 2002, pet. ref’d). Rule 404(b) does not expressly
require the State to provide written notice of its intent to introduce evidence of
extraneous misconduct. See id.; Chimney v. State, 6 S.W.3d 681, 697 (Tex.
App.—Waco 1999, pet. ref’d).
In Blackmon, a sexual assault of a child case, the State voluntarily gave
notice of its intent to use extraneous offense evidence, but it did not give notice of
its intent to offer the testimony of the complainant’s brother because it mistakenly
29
believed that the brother’s testimony related to the same event as the complainant’s
testimony. See 80 S.W.3d at 107–08. In evaluating Blackmon’s ineffective
assistance claim, the Texarkana Court of Appeals acknowledged that Rule 404(b)
does not require the State to give its extraneous offense notice in writing and noted
that “[i]t is not clear from the record whether Blackmon’s attorney had notice of
the State’s intent to introduce the extraneous offenses contained in [the brother’s]
testimony.” Id. at 108. The court concluded that “[w]ithout a clear indication in
the record that Blackmon’s counsel did not receive notice of the State’s intent to
introduce the extraneous offenses contained in [the brother’s] testimony, we cannot
say counsel’s performance was deficient.” Id.
Here, the record does not indicate that defense counsel requested notice
pursuant to Rule 404(b). The State, however, voluntarily provided notice that it
intended to introduce evidence of a prior conviction and three other extraneous bad
acts by appellant. This notice did not include the State’s intent to introduce
evidence that appellant, or his friends at appellant’s direction, contacted Caldwell
and Ozoh and requested that they drop the charges against him. When Caldwell
and Ozoh testified at trial concerning the requests by appellant and his friends,
defense counsel did not object on the basis that he never received notice of these
acts. As previously stated, appellant did not move for a new trial or otherwise
assert his ineffective assistance of counsel claims in a post-judgment motion.
30
Thus, the only indication that defense counsel did not actually receive notice of the
State’s intent to use these acts is appellant’s assertion in his appellate brief.
Although the written Rule 404(b) notice provided in this case does not
include these extraneous acts, Rule 404(b) does not require that this notice be in
writing, and the record does not affirmatively indicate that the State never gave
notice of its intent to introduce these acts to defense counsel. It is purely
speculative to assume that, because these extraneous acts were not included in the
written Rule 404(b) notice, the State never gave notice of its intent to introduce this
evidence. Because the record does not clearly establish that defense counsel did
not receive notice of the State’s intent to introduce Caldwell’s and Ozoh’s
testimony concerning appellant’s attempts to persuade them to drop the charges,
we cannot conclude that defense counsel’s failure to object to this testimony on the
grounds that he lacked notice pursuant to Rule 404(b) constituted deficient
performance. See Thompson, 9 S.W.3d at 813 (holding that record must
affirmatively demonstrate alleged ineffectiveness); Blackmon, 80 S.W.3d at 108.
We overrule appellant’s fourth and fifth issues.
3. Failure to Request Limiting Instructions
In his sixth and seventh issues, appellant contends that defense counsel
rendered ineffective assistance when he failed to request a limiting instruction after
the trial court sustained his objection to Ozoh’s testimony concerning an
31
altercation between appellant and his previous business partner. In his eighth and
ninth issues, appellant contends that defense counsel rendered ineffective
assistance when he failed to request a limiting instruction after the trial court
sustained his objection to testimony concerning threats made by appellant to Ozoh.
Rule of Evidence 105 provides, “When evidence which is admissible as to
one party or for one purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly . . . .” TEX. R. EVID. 105(a); Bryant v.
State, 282 S.W.3d 156, 170–71 (Tex. App.—Texarkana 2009, pet. ref’d) (“When
evidence is properly admitted for one purpose, but can have meanings and uses
beyond that proper purpose, the trial court may—and should—immediately define
and limit the jury’s ability to consider such evidence to only those areas which are
permitted under our Rules of Evidence.”). Rule 105(a) does not require an
objection to the admission of evidence before requesting a limiting instruction on
that evidence. Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001).
The failure of defense counsel to request a limiting instruction is not, by
itself, ineffective assistance. Ali v. State, 26 S.W.3d 82, 88 (Tex. App.—Waco
2000, no pet.) (finding no basis for conclusion that defense counsel did not
exercise reasonable professional assistance when record did not contain counsel’s
reason for not requesting instruction). Although “hindsight speculation may
32
suggest a limiting instruction of some nature” should have been given, a reasonable
explanation for counsel’s actions can be that, “as a trial tactic, counsel did not wish
to remind the jury of those matters.” Webb, 995 S.W.2d at 300–01; see also Cueva
v. State, 339 S.W.3d 839, 875 (Tex. App.—Corpus Christi 2011, pet. ref’d)
(“[C]ounsel may have had a legitimate belief that requesting further relief would
have only highlighted the objectionable testimony.”).
Here, on direct examination, the State asked Ozoh how her business
relationship with appellant started. Ozoh testified that appellant owned a medical
supply company and that he had been having difficulties with one of his
employees. She stated that appellant told her that he and the employee “had a big
altercation in the office and police came and that he almost hit her and—.” At this
point, defense counsel objected, and the trial court sustained the objection.
Defense counsel did not request a limiting instruction, and the State moved on and
asked Ozoh whether appellant told her what kind of business he would like to
open. The State and Ozoh did not engage in any further discussion about the
“altercation” with the prior employee.
Appellant did not move for a new trial, and, thus, the record is silent on
defense counsel’s reasons for not requesting a limiting instruction after this
exchange. It is reasonable to conclude, however, that, after the trial court sustained
the objection, defense counsel decided that seeking an instruction to disregard
33
Ozoh’s testimony would only bring further attention to it. See Webb, 995 S.W.2d
at 301 (“[A]ppellant’s trial counsel may have purposely decided not to request a
limiting instruction to prevent further attention being drawn to the extraneous
offenses.”); see also Bryant, 282 S.W.3d at 168 (“[I]f the appellate court can
imagine a strategic motive to explain the ineffective assistance claim, then the
reviewing court may not sustain the appellant’s point of error.”). On this record,
we cannot conclude that defense counsel’s failure to request a limiting instruction
concerning this evidence fell below an objective standard of reasonableness. See
Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate
alleged ineffectiveness).
On cross-examination of appellant, the following exchange occurred:
[State]: Do you remember threatening Ms. Ozoh by
emulating a gun and telling her that if
anything happens to you—
[Defense counsel]: Objection.
Appellant: That’s not true.
[Defense counsel]: It’s out of character and—
The Court: That’s not a legal objection. Overruled.
[State]: Do you remember emulating a gun and
telling her that if anything happened to you,
you’re going to kill her and you’re going to
kill Ms. Caldwell?
Appellant: It’s all allegation. That is not true.
34
Contrary to appellant’s representation on appeal, the trial court did not sustain an
objection to evidence concerning alleged threats that appellant made to Ozoh. 4
On appeal, appellant states only that defense counsel “failed to request an
instruction for the jury to disregard this evidence,” but he does not acknowledge
that the trial court overruled his objection to this evidence, and he did not seek a
limiting instruction. He also makes no argument that a limiting instruction would
have even been proper with respect to this testimony. He does not demonstrate
how the evidence was admissible for one purpose but not another, thus justifying
the use of a limiting instruction. We therefore conclude that appellant has not met
his burden of demonstrating, by a preponderance of the evidence, that defense
counsel rendered ineffective assistance when he failed to request a limiting
4
In the “factual basis” section for his ineffective assistance claims, appellant cites
this testimony, but he does not indicate that the trial court overruled his objection.
In the section containing his argument for why counsel was deficient, he states that
defense counsel “properly objected to . . . prior threats directed toward Eucharia
Ozoh, yet defense counsel failed to request an instruction for the jury to disregard
this evidence.” He cites to the record, but these citations refer to two different
portions of testimony in which the trial court sustained defense counsel’s
objections—one during Caldwell’s testimony concerning a conversation she had
with one of appellant’s friends about dropping the charges and the other during
Ozoh’s testimony about a conversation she had with appellant’s attorney.
Appellant references these two objections again in his reply brief, stating, “Nor did
the prosecution [in its appellate brief] discuss the failure to request a limiting
instruction related to two other objections which were sustained,” but he never
provides the context for those other objections, nor does he provide any argument
for why, with respect to those two objections, defense counsel rendered ineffective
assistance when he did not request a limiting instruction. He also does not provide
any argument for how he was prejudiced by this failure. See TEX. R. APP. P.
38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”).
35
instruction concerning these threats. See Perez, 310 S.W.3d at 893 (“The
defendant bears the burden of proving ineffectiveness by a preponderance of the
evidence.”).
We overrule appellant’s sixth, seventh, eighth, and ninth issues.
Modification of Judgment
In his tenth issue, appellant contends that the trial court erroneously included
an affirmative finding of family violence in the judgment for cause number
1767859, relating to the assault on Caldwell. He requests that we modify the
judgment to delete this finding. In its sole cross-point, the State contends that the
written judgment for cause number 1767858, the assault on Ozoh, reflects a fine of
$500, but the trial court orally pronounced a fine of $1,000. The State requests that
we modify the judgment to reflect the $1,000 fine.
Rule of Appellate Procedure 43.2(b) allows an appellate court to “modify
the trial court’s judgment and affirm it as modified.” TEX. R. APP. P. 43.2(b). An
appellate court has the power to reform a trial court judgment to “make the record
speak the truth when the matter has been called to its attention by any source.”
French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v.
State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d)).
36
A. Removal of Family Violence Finding
Code of Criminal Procedure article 42.013 provides that if the trial court
“determines that the offense involved family violence, as defined by Section
71.004, Family Code, the court shall make an affirmative finding of that fact and
enter the affirmative finding in the judgment of the case.” TEX. CODE CRIM. PROC.
ANN. art. 42.013 (Vernon 2006); Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim.
App. 2006) (“[T]he trial court is statutorily obligated to enter an affirmative
finding of family violence in its judgment, if during the guilt phase of trial, the
court determines that the offense involved family violence as defined by Tex. Fam.
Code § 71.004(1).”); Thomas v. State, 150 S.W.3d 887, 889 (Tex. App.—Dallas
2004, pet. ref’d) (“[T]he trial court had no discretion in entering a family violence
finding once it determined the offense involved family violence.”). Family Code
section 71.004 defines “family violence” as including “an act by a member of a
family or household against another member of the family or household that is
intended to result in physical harm, bodily injury, assault, or sexual assault . . . but
does not include defensive measures to protect oneself.” TEX. FAM. CODE ANN.
§ 71.004(1) (Vernon 2008). The Family Code further defines “household” as a
“unit composed of persons living together in the same dwelling, without regard to
whether they are related to each other.” Id. § 71.005 (Vernon 2008).
37
The State contends that the family violence finding is proper, despite the
undisputed evidence that Caldwell was not a member of appellant’s family or
household, because this offense “only occurred in an attempt to further appellant’s
family violence assault on Ms. Ozoh” and “the offense as a whole was committed
with the intent to cause physical harm or threaten physical harm to his household
member, Ms. Ozoh.” We disagree.
The Texas Legislature began enacting harsher penalties for defendants
convicted of multiple domestic assaults in 1989, when it added language to Penal
Code section 22.01 similar to the language currently found in section 22.01(b)(2),
which enhances the offense of assault from a Class A misdemeanor to a third-
degree felony if the assault is committed against a family or household member
and the defendant has previously been convicted of an offense against someone
with whom the defendant has a specified relationship, as defined by the Family
Code. See TEX. PENAL CODE ANN. § 22.01(b)(2) (Vernon 2011); State v. Eakins,
71 S.W.3d 443, 444 (Tex. App.—Austin 2002, no pet.). The Legislature then
adopted article 42.013, requiring the affirmative finding in the written judgment,
several years later. Eakins, 77 S.W.3d at 444. In Eakins, the Austin Court of
Appeals reasoned,
Article 42.013 was obviously intended to simplify the prosecution of
subsequent family assault cases by making it unnecessary to relitigate
the details of the previous assault. Instead, the State may rely on the
38
affirmative finding in the prior judgment to prove that the victim of the
defendant’s previous assault was a family member.
Id. (emphasis added). The focus of the family-violence finding is thus on the
relationship between the defendant and the specific victim of the offense. If the
victim of the specific offense is a member of the defendant’s family or household,
then the affirmative finding is justified. See TEX. CODE CRIM. PROC. ANN. art.
42.013; TEX. FAM. CODE ANN. § 71.004(1) (defining “family violence” as “an act
by a member of a family or household against another member of the family or
household”) (emphasis added); Butler, 189 S.W.3d at 302. The statute is silent on
whether a family violence finding is justified when the victim of the specific
offense at issue is not a member of the defendant’s family or household, but the
criminal episode as a whole does involve a member of the defendant’s household.
The assault on Caldwell and the assault on Ozoh are separate and distinct
offenses, subjecting appellant to separate punishments. 5 The State cites no
authority for the proposition that the term “offense” in article 42.013 should be
5
The respective informations for the two offenses illustrate this point. The
information in cause number 1767858, the assault on Ozoh, alleges that appellant
“did then and there unlawfully intentionally and knowingly cause bodily injury to
EUCHARIA OZOH, a member of the Defendant’s household, hereafter styled the
Complainant . . . .” (Emphasis added.) The information in cause number
1767859, the assault on Caldwell, alleges that appellant “did then and there
unlawfully intentionally and knowingly cause bodily injury to BRENETHA
CALDWELL, hereinafter called the Complainant . . . .”
39
read as “criminal episode” instead of as a discrete violation of the Penal Code. We
decline to read this meaning into the statute here.
The State also contends that the family violence finding was proper based on
the doctrine of transferred intent, arguing that “[w]hile [appellant] was directing an
assault on his household member, Ms. Ozoh, he attacked Ms. Caldwell when she
intervened. His intent had been to commit family violence, and in the process, he
also assaulted Ms. Caldwell because she attempted to protect Ms. Ozoh.” We are
not persuaded by this argument. The doctrine of transferred intent, as codified by
the Legislature in Penal Code section 6.04, allows “a transfer of intent in
circumstances where the difference between what was intended, contemplated, and
risked and what occurred is either a different victim, or where there is a
discrepancy between the degree of harm intended and that actually produced . . . .”
George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice
and Procedure § 43.17 (3d ed.); see also TEX. PENAL CODE ANN. § 6.04 (Vernon
2011) (codifying doctrine of transferred intent). The situation in this case is not a
situation in which there is a difference between appellant’s intended victim and his
actual victim. He intended to assault Ozoh, a member of his household, and he so
assaulted her by hitting her, knocking her down, and kicking her. When Caldwell
attempted to intervene and protect Ozoh, he intended to assault Caldwell to prevent
40
her interference, and he so assaulted her by hitting her with his fist. The
transferred intent doctrine is thus inapplicable under these circumstances.
We agree with appellant that the record does not support the affirmative
family violence finding in cause number 1767859, the assault on Caldwell, and we
therefore modify the judgment of the trial court to delete that finding.
We sustain appellant’s tenth issue.
B. Correction of Fine Amount
A defendant’s sentence must be pronounced orally in his presence. Taylor v.
State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (citing TEX. CODE CRIM.
PROC. ANN. art. 42.03, § 1(a) (Vernon Supp. 2012) and Ex parte Madding, 70
S.W.3d 131, 135 (Tex. Crim. App. 2002)). The judgment, including the assessed
sentence, is “just the written declaration and embodiment of that oral
pronouncement.” Id. When there is a conflict between the oral pronouncement of
sentence and the sentence in the written judgment, the oral pronouncement
controls. Id. “The solution in those cases in which the oral pronouncement and the
written judgment conflict is to reform the written judgment to conform to the
sentence that was orally pronounced.” Thompson v. State, 108 S.W.3d 287, 290
(Tex. Crim. App. 2003); Davis v. State, 323 S.W.3d 190, 198–99 (Tex. App.—
Dallas 2008, pet. ref’d) (modifying written judgment to include $1,500 fine orally
41
pronounced and noting that appellate court has authority to modify incorrect
judgment when it has “necessary data and information to do so”).
Here, with respect to cause number 1767858, the trial court assessed
appellant’s punishment as one year confinement in the Harris County Jail,
suspended that sentence, and placed him on community supervision for two years.
The trial court also assessed a $1,000 fine. The written judgment, however, placed
appellant on community supervision for one year and assessed a $500 fine. The
oral pronouncement and the written judgment thus conflict, and we therefore
reform the judgment in cause number 1767858 to reflect the appropriate length of
community supervision—two years—and the appropriate fine—$1,000. See
Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.) (“Our
authority to reform incorrect judgments is not dependent on the request of any
party, nor does it turn on a question of whether a party has or has not objected in
[the] trial court; we may act sua sponte and may have a duty to do so.”).
We sustain the State’s sole cross-point.
Conclusion
We modify the judgment in trial court cause number 1767858, appellate
cause number 01-12-00207-CR, to reflect that appellant’s term of community
supervision is two years and that a $1,000 fine was imposed against him. We
modify the judgment in trial court cause number 1767859, appellate cause number
42
01-12-00208-CR, to delete the affirmative family violence finding. We affirm the
judgments as modified.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
43