Clifford Wayne Laws Junior v. the State of Texas ( 2024 )

Affirmed and Majority and Concurring Opinions filed February 13, 2024.
In The
Fourteenth Court of Appeals
NO. 14-22-00356-CR
CLIFFORD WAYNE LAWS JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1683281
MAJORITY OPINION
Appellant Clifford Wayne Laws Jr. appeals his conviction for first-degree
murder. Appellant presents three issues. First, he argues that his trial counsel was
constitutionally ineffective. Second, he argues that the lack of a reporter’s record
during the time period in which to file a motion for new trial deprived him of his
due process and equal protection rights. Third, he requests us to abate the appeal
so the trial court may enter findings of facts and conclusions of law regarding the
voluntariness of his statement to police. We have already granted appellant the
relief sought in his third issue, and we overrule his remaining issues. Accordingly,
we affirm.
Background
Appellant does not challenge the sufficiency of the evidence supporting the
jury’s verdict, so we briefly summarize the facts. Appellant was in a dating
relationship with Precious McGowan. Appellant and Precious lived in the same
house with Precious’s father, Joseph, and Precious’s grandmother, Rose. While at
home one day, appellant and Precious had a physical altercation, which Precious
described as a “tussle.” Joseph intervened, resulting in a fight between Joseph and
appellant. Precious screamed for them to stop. Appellant owned a twenty-two-
caliber rifle, which he used to shoot Joseph eighteen times, including six shots to
the back of Joseph’s head and neck. Joseph died as a result of the shooting.
The State indicted appellant on a first-degree murder charge. Appellant
pleaded not guilty, and the case went to trial. At trial, appellant’s main theory was
that he acted in self-defense because Joseph threatened him with a knife. Precious
denied ever seeing her father holding a knife during the altercation. The jury heard
evidence supporting appellant’s self-defense theory, and the court presented the
theory to the jury in the charge.
The jury found appellant guilty of murder, and the trial court sentenced
appellant to fifty years’ confinement in the Texas Department of Criminal
Justice—Institutional Division. Appellant timely appealed.
Analysis
A. Assistance of Counsel
In his first issue, appellant argues that his counsel provided ineffective
assistance.
2
1. Standard of review
We examine claims of ineffective assistance of counsel under the familiar
two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
See Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d). A criminal defendant must prove that his trial counsel’s
representation was deficient and that the deficient performance was so serious that
it deprived him of a fair trial. Strickland, 466 U.S. at 687. Counsel’s
representation is deficient if it falls below an objective standard of reasonableness.
Id. at 688. But a deficient performance will deprive the defendant of a fair trial
only if it prejudices the defense. Id. at 691-92. To demonstrate prejudice, the
defendant must show a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694. Failure to make the required showing of either deficient performance or
sufficient prejudice defeats a claim of ineffectiveness. Id. at 697.
Our review of trial counsel’s representation is highly deferential and
presumes that counsel’s actions fell within the wide range of reasonable
professional assistance. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App.
2007); Donald v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (op. on reh’g). If counsel’s reasons for his or her conduct do not
appear in the record and there exists at least the possibility that the conduct could
have been grounded in legitimate trial strategy, we defer to counsel’s decisions and
deny relief on an ineffective assistance claim on direct appeal. See Garza, 213
S.W.3d at 348. If, as here, counsel has not had an opportunity to explain the
challenged actions, we may not find deficient performance unless the conduct was
“so outrageous that no competent attorney would have engaged in it.” Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the majority of cases,
3
the record on direct appeal is simply undeveloped and insufficient to permit a
reviewing court to fairly evaluate the merits of an ineffective assistance of counsel
claim. See Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Robison, 461 S.W.3d at 203.
2. Discussion
Appellant argues that his trial counsel was ineffective because he failed to
investigate the laws and facts necessary to present a self-defense claim. Appellant
does not dispute that his trial counsel presented evidence and argument in support
of appellant’s self-defense theory, which was presented to the jury. He contends,
however, that trial counsel was ineffective because he agreed during the motion in
limine hearing that evidence of specific prior bad acts by the victim, Joseph, were
inadmissible to prove that Joseph was the first aggressor.
Prior to trial, the State sent appellant a Brady notice disclosing that Joseph’s
criminal history included the following violent alleged offenses or convictions:
• a 2018 charge of aggravated assault with a deadly weapon, which was
dismissed;
• a 2018 charge of terroristic threat, which was dismissed;
• a 2008 charge of aggravated assault with a deadly weapon, which was
dismissed;
• a 2001 charge of felon in possession of a weapon, to which Joseph
pleaded guilty and was sentenced to two years in prison;
• a 1996 charge of discharge of a firearm in a metro area, to which Joseph
pleaded guilty and was sentenced to 90 days in jail; and
• a 1991 charge of aggravated robbery — serious bodily injury, of which
Joseph was convicted and sentenced to five years in prison.
According to appellant, his trial counsel’s agreement before trial that these
specific acts of misconduct were inadmissible constituted ineffective assistance
because:
4
[n]o reasonable strategic reason can exists [sic] that would justify trial
counsel’s agreement that specific acts of misconduct including
aggravated assaults with a deadly weapon, terroristic threats, felon in
possession of a firearm, discharge of a firearm in a metro area and
aggravated robbery were not relevant and admissible to show that
[Joseph] was the first aggressor and justify a not guilty verdict.
We first observe that appellant’s premise—his trial counsel stipulated that
Joseph’s prior bad acts were inadmissible—is not supported by the record. Trial
counsel agreed merely to the State’s motion in limine, which asked that counsel
approach and obtain a ruling on admissibility as to extraneous offenses or bad acts
involving Joseph before referencing them to the jury.1 The record reveals the
following exchange:
MS. HUTSON: With No. 2, extraneous offenses, or bad acts
involving the complainant, Joseph McGowan. Any reference to,
suggestion of, or production of such documentation has no relevance
as to the case at bar and would be misleading to the jury. Any such
instance that has not resulted in a final conviction or a valid
impeachable final conviction is inadmissible under 608, 609, 403, and
404(a). I believe that one is agreed.
MR. GREENLEE: Well, with one caveat.
THE COURT: Okay.
MR. GREENLEE: I think two issues, possibly, Your Honor. One,
if something other than Mr. McGowan’s character comes into
evidence, then that would allow us to change this.
THE COURT: Right.
MR. GREENLEE: And then two, should the defendant choose to
testify, I think he would still be allowed to testify as to bad acts
1
The State’s motion in limine number 2 stated: “Extraneous offenses or bad acts
involving the complainant, Joseph McGowan. Any reference to, suggestion of, or production of
such documentation has no relevance as to the case at bar and would be misleading to the jury.
Any such instance that has not resulted in a final conviction or a valid impeachable final
conviction is inadmissible under Texas Rule[s] of Evidence 608(b), 609, and 403, 404(a).”
5
towards the defendant, only towards the defendant. I think under the
law.
THE COURT: Okay.
MS. HUTSON: Your Honor, I ask, if that were the case, that prior
to any sort of cross-examination of the State’s witnesses, eliciting any
extraneous offense instances, particular acts, not just character traits,
but particular acts, the State would ask that we have a hearing outside
of the presence of the jury to establish whether or not under 404(a) or
404(b), whether or not that evidence should come in.
MR. GREENLEE: And I will agree to that.
THE COURT: That will be granted, No. 2.
This exchange does not show that trial counsel agreed that evidence of
Joseph’s prior bad acts would be inadmissible; it shows that counsel agreed to
approach the bench and obtain a ruling on admissibility before referencing any
prior bad acts by Joseph in front of the jury. We therefore construe appellant’s
first issue as complaining about trial counsel’s agreement to the motion in limine
only. Appellant does not argue additionally that his trial counsel was ineffective
for failing to offer evidence of Joseph’s prior bad acts to prove that appellant was
the first aggressor.
A motion in limine is a method of raising an objection to an area of inquiry
prior to the matter reaching the ears of the jury through a posed question, jury
argument, or other means. Norman v. State, 525 S.W.2d 669, 671 (Tex. Crim.
App. 1975); Thierry v. State, 288 S.W.3d 80, 86 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d). A ruling on a motion in limine does not exclude evidence or
constitute a ruling on its admissibility; rather, it merely requires the parties to
approach the trial court for a definitive ruling on admissibility before attempting to
introduce evidence within the scope of the motion in limine order. Bobo v. State,
757 S.W.2d 58, 61 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d). Such an
order merely “regulates the administration of a trial.” Harnett v. State, 38 S.W.3d
6
650, 655 (Tex. App.—Austin 2000, pet. ref’d). Accordingly, a trial court’s
granting of a motion in limine is a preliminary ruling that normally preserves
nothing for appellate review. See Geuder v. State, 115 S.W.3d 11, 14-15 (Tex.
Crim. App. 2003). It follows that when defense counsel agrees to a motion in
limine, counsel does not waive any rights or objections the defendant may have as
to the admissibility of evidence because an order granting a motion in limine
merely defers ruling on admissibility of evidence until a party offers evidence.
Appellant cites no authority holding that a defendant’s trial counsel’s
agreement with the State’s motion in limine constitutes ineffective assistance.
When counsel has not had an opportunity to explain the challenged actions, we
may not find deficient performance unless the conduct was so outrageous that no
competent attorney would have engaged in it. Goodspeed, 187 S.W.3d at 392.
Based on the present record, we cannot conclude that appellant’s trial counsel’s
agreement to the motion in limine regarding Joseph’s prior bad acts meets this
standard.
A defendant who raises the issue of self-defense may introduce evidence of
a victim’s character trait for violence pursuant to Texas Rule of Evidence 404(a)(2)
to show that the victim was, in fact, the first aggressor, but the defendant may do
so only through reputation and opinion testimony under Rule 405(a). Ex parte
Miller, 330 S.W.3d 610, 619-20 (Tex. Crim. App. 2009); Allen v. State, 473
S.W.3d 426, 446 (Tex. App.—Houston [14th Dist.] 2015, pet. dism’d). The
matters identified in the Brady notice are specific prior violent acts, not opinion or
reputation evidence. Thus, they would not have been admissible under Rule
404(a)(2) to prove that Joseph was the first aggressor. Ex parte Miller, 330
S.W.3d at 619-20.
7
Under Rule 404(b), a victim’s prior acts of violence also may be admissible
to clarify the issue of first aggressor if the proffered act explains the victim’s
ambiguously aggressive conduct. See Torres v. State, 117 S.W.3d 891, 895 (Tex.
Crim. App. 2003); Torres v. State, 71 S.W.3d 758, 762 (Tex. Crim. App. 2002);
Allen, 473 S.W.3d at 446. But the evidence may be admitted only for reasons
other than character-conformity, such as to explain the victim’s specific intent,
motive, or hostility in a particular case. See Tex. R. Evid. 404(b); Ex parte Miller,
330 S.W.3d at 620; see, e.g., Torres, 117 S.W.3d at 895; see also Torres, 71
S.W.3d at 762 (“As long as the proffered violent acts explain the outward
aggressive conduct of the deceased at the time of the killing, and in a manner other
than demonstrating character conformity only, prior specific acts of violence may
be admitted even though those acts were not directed against the defendant.”).
In the first aggressor context, the victim’s prior violent conduct would be
admissible only (1) if there is some ambiguous or uncertain evidence of a violent
or aggressive act by the victim that tends to show the victim was the first aggressor
and (2) if the proffered evidence tends to dispel the ambiguity or explain the
victim’s conduct at the time of the incident. James v. State, 335 S.W.3d 719, 728
(Tex. App.—Fort Worth 2011, no pet.); see also Torres, 71 S.W.3d at 762 (“For
purposes of proving that the deceased was the first aggressor, the key is that the
proffered evidence explains the deceased’s conduct.”).
Here, appellant told police officers in his recorded statement that Joseph
picked up and threatened him with a long kitchen knife. According to appellant’s
statement, he fired the gun only after Joseph kept coming toward him and grabbed
the gun barrel. Officers investigating the crime scene found a long knife on the
kitchen table, fifteen feet from Joseph’s body. The medical examiner also
removed a pocket knife from Joseph’s pants. According to appellant’s version of
8
events, then, Joseph’s alleged actions are not ambiguous or uncertain and need no
explanation by referencing prior violent conduct. E.g., Smith v. State, 355 S.W.3d
138, 151 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (victim’s act of pulling
a knife and attempting to stab defendant not ambiguous); Reyna v. State, 99
S.W.3d 344, 347 (Tex. App.—Fort Worth 2003, pet. ref’d) (victim’s actions of
displaying gun and shooting defendant were not ambiguous).
Given the record, appellant’s trial counsel may have determined that
evidence supporting appellant’s claim that Joseph was the first aggressor was not
ambiguous and that evidence of Joseph’s prior violent acts referenced in the Brady
notice therefore would not have dispelled any ambiguity. He also may have
determined that Joseph’s prior bad acts were not admissible under Rule 404(a). Ex
parte Miller, 330 S.W.3d at 620. Moreover, because agreeing to a motion in
limine does not impair a defendant’s right to later offer or object to evidence, we
cannot say that trial counsel’s action was so outrageous that no competent attorney
would have engaged in it. Goodspeed, 187 S.W.3d at 392. Thus, we conclude that
appellant has not shown that his trial counsel provided ineffective assistance by
agreeing to the State’s motion in limine. See Ruiz v. State, No. 14-17-00408-CR,
2019 WL 758440, at *5 (Tex. App.—Houston [14th Dist.] Feb. 21, 2019, no pet.)
(mem. op., not designated for publication) (holding that trial counsel’s agreement
to motion in limine not deficient because record did not disclose whether counsel
determined evidence was inadmissible).
We overrule appellant’s first issue.
B. Reporter’s Record
In his second issue, appellant argues that he was denied due process and
equal protection of the law because the court reporter did not prepare the record
within the time period in which to file a motion for new trial. Appellant does not
9
cite any rule or precedent to support his argument, and we are not aware of any
authority requiring the reporter to provide the record to a defendant within the time
period for filing a motion for new trial.2
Appellant argues that a review of the reporter’s record after its completion
revealed possible deficient conduct by trial counsel—other than the motion in
limine complaint raised in his first issue—that could have been a basis of an
ineffective assistance of counsel argument in a timely motion for new trial.
Specifically, appellant identifies the following alleged deficiencies:
• Trial counsel did not present any evidence in support of an oral
motion to suppress appellant’s video and audio statement to police.
• Trial counsel did not present an expert to examine Joseph’s toxicology
report and explain the impact phencyclidine (“PCP”) might have had
on Joseph’s behavior.
• Trial counsel failed to present evidence that could have explained the
effect of anesthesia or pain medication given to appellant during and
after surgery, which may have affected his cognition when
interviewed by police.
• Trial counsel raised no objection to the admission of appellant’s
statement to law enforcement.
• Trial counsel failed to request a jury instruction on voluntariness.
• Trial counsel failed to request a jury instruction regarding Texas Penal
Code Section 9.04.
• Trial counsel failed to cross-examine Precious about Joseph’s known
propensity to carry or not carry a weapon.
Appellant contends that a hearing is required so he may present these
complaints on direct appeal, and he requests abatement of the appeal so he may file
an out-of-time motion for new trial in the trial court. Texas Rule of Appellate
2
We also do not see any indication that appellant requested copies of the daily
transcriptions from the court reporter.
10
Procedure 2 authorizes an appellate court, on a party’s motion or on its own
initiative and in order to expedite a decision or for other good cause, to “suspend a
rule’s operation in a particular case and order a different procedure; but a court
must not construe this rule to suspend any provision of the Code of Criminal
Procedure. . . .” Tex. R. App. P. 2. A court of appeals may not use Rule 2 to
suspend or enlarge appellate limits that regulate the orderly and timely process of
moving a case from trial to finality of conviction. Oldham v. State, 977 S.W.2d
354, 359 (Tex. Crim. App. 1998).
The Court of Criminal Appeals has instructed intermediate appellate courts
not to allow defendants to file out-of-time motions for new trial, “absent truly
extraordinary circumstances.” Id. at 360. “Rule 2(b) does not authorize the
retroactive suspension of rules governing events that have already occurred at the
trial level before the record has been conveyed to the appellate court.” State v.
Garza, 931 S.W.2d 560, 563 (Tex. Crim. App. 1996). The rule “does not authorize
courts of appeals to reach back, after the appeal has been perfected and the record
filed, and alter the course of events at the trial court level.” Id.The Austin Court of Appeals has rejected an argument similar to appellant’s.
See Saint James v. State, No. 03-05-00202-CR, 2006 WL 2505137 (Tex. App.—
Austin Aug. 31, 2006, pet. ref’d) (mem. op., not designated for publication). In
Saint James, the appellant filed a motion to abate the appeal and remand for a
hearing on whether trial counsel was ineffective. Id. at *7 n.4. Saint James’s
appointed appellate counsel filed a motion for new trial but did not raise ineffective
assistance of counsel claims because “the Reporter’s Record had not been prepared
within the time frame for filing a new trial motion and counsel could not have
known of the existence of these issues prior to reviewing the Reporter’s Record.”
Id. The court of appeals determined that Saint James’s argument did not establish
11
good cause for the court to utilize Rule 2 to allow the appellant to file an out-of-
time motion for new trial. Id. We likewise conclude that appellant has not shown
good cause to abate the appeal and allow him to file an untimely motion for new
trial.
As appellant notes in his brief, the issues he seeks to develop can be raised
in a post-conviction writ of habeas corpus, which is the preferred vehicle for
raising a complaint regarding trial counsel’s performance. See Jimenez v. State,
240 S.W.3d 384, 413 (Tex. App.—Austin 2007, pet. ref’d) (“[I]n most ineffective
assistance claims, a writ of habeas corpus is essential to gathering the facts
necessary to adequately evaluate such claims.”); Pettway v. State, 4 S.W.3d 390,
391 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (per curiam) (noting that an
“appellant may raise the issue of ineffective assistance of counsel in a post-
conviction habeas corpus”).
Appellant suggests that habeas relief is not a viable option because he is
indigent and not entitled to appointed counsel to pursue habeas relief. The Texas
Code of Criminal Procedure, however, entitles an indigent habeas applicant to
appointed post-conviction counsel whenever the court concludes that the interests
of justice require representation. See Tex. Code Crim. Proc. art. 1.051(d)(3); see
also Ex parte Garcia, 486 S.W.3d 565, 578 (Tex. Crim. App. 2016) (Alcala, J.
dissenting) (“The existing statutes, therefore, provide an adequate basis upon
which to conclude that appointment of counsel is required in any case in which
either the pleadings or the face of the record gives rise to a colorable, nonfrivolous
claim for which legal expertise is required in order to ensure that the claim is
afforded meaningful consideration.”).
In keeping with the above authority, this court has held that an appellant’s
rights were not violated by requiring him to follow habeas procedure to develop an
12
ineffective assistance claim. See Lewis v. State, 686 S.W.2d 243 (Tex. App.—
Houston [14th Dist.] Jan. 10, 1985), aff’d, 711 S.W.2d 41 (Tex. Crim. App. 1986).
In Lewis, like here, the appellant filed a motion to abate the appeal to conduct a
hearing on trial counsel’s alleged ineffectiveness rather than invoking habeas
procedure after the direct appeal concluded:
[T]he appeal should be abated in the interest of judicial economy. If
the evidentiary hearing is not conducted at this point, and the direct
appeal is affirmed, appellant would have to file an application for writ
of habeas corpus pursuant to article 11.07 of the Texas Code of
Criminal Procedure to develop the issues. Appellant is sure that it has
been noted that his counsel is court-appointed on this direct appeal
and, of course, the presumption exists that one who is indigent on the
appeal would be too poor to retain a habeas attorney.
Id. at 246. We denied the motion, explaining, “Appellant is not denied the right to
properly assert his claim; he is merely required to follow established procedure and
assert it in a post-conviction proceeding.” Id. at 247.
Accordingly, we conclude that appellant has not demonstrated that he was
denied due process or equal protection of the law because the reporter’s record was
not completed within the time period for filing a motion for new trial. We overrule
appellant’s second issue.
13
Conclusion
Having overruled appellant’s dispositive issues,3 we affirm the trial court’s
judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Spain, and Wilson. (Spain, J., concurring)
Publish — Tex. R. App. P. 47.2(b).
3
In a third issue, appellant requested this court to abate the appeal and order the trial
court to prepare findings of facts and conclusions of law regarding the voluntariness of
appellant’s statement to law enforcement. See Tex. Code Crim. Proc. art. 38.22, § 6. On
December 1, 2022, we abated the appeal and directed the trial court to make the required
findings and conclusions. On December 16, 2022, the trial court signed the findings and
conclusions. On January 31, this court reinstated the appeal. Therefore, appellant has received
the relief sought by his third issue, and we overrule the issue as moot.
14