Horace Lee Rogers A/K/A Horace Lee Hood v. State

NO. 07-08-0449-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 28, 2009

______________________________

HORCE LEE ROGERS A.K.A. HORACE LEE HOOD, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 69^TH DISTRICT COURT OF HARTLEY COUNTY;

NO. 997H; HON. RON ENNS, PRESIDING

_______________________________

Before CAMPBELL, HANCOCK and PIRTLE, JJ.

Abatement and Remand

          Following a plea of not guilty, appellant, Horace Lee Rogers a.k.a. Horace Lee Hood, was convicted by a jury of burglary of a habitation, enhanced, and sentenced to 35 years incarceration in the Texas Department of Criminal Justice, Institutional Division. The clerk’s record was filed on January 21, 2009.

          Texas Rule of Appellate Procedure 25.2(a)(2) requires that a trial court shall enter a Certification of Defendant’s Right of Appeal each time it enters a judgment of guilt or other appealable order. Tex. R. App. P. 25.2(a)(2); Hargesheimer v. State, 182 S.W.3d 906, 911 (Tex.Crim.App. 2006). An appeal must be dismissed if the certification has not been made part of the record under the applicable rules. Tex. R. App. P. 25.2(d). An appellate court that has an appellate record that includes a certification is obligated to review the record to ascertain whether the certification is defective. Dears v. State, 154 S.W.3d 610, 615 (Tex.Crim.App. 2005).

          Pursuant to an amendment to Rule 25.2(d), which became effective on September 1, 2007, the certification of defendant’s right of appeal must be signed by the defendant and a copy must be given to him. Tex. R. App. P. 25.2(d). Additionally, the certification shall include a notice that the defendant has been informed of his rights concerning appeal, as well as his right to file a pro se petition for discretionary review.

          The certification contained in the clerk’s record does not contain the defendant’s signature. Furthermore, it does not reflect whether a copy of the certification was given to the defendant nor does it indicate whether the defendant was given the required admonishments. Therefore, the certification on file is defective.

          Consequently, we abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly executed, the certification shall be included in a supplemental clerk’s record and filed with the Clerk of this Court on or before March 16, 2009.

          This order constitutes notice to all parties of the defective certification pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 37.1. If a supplemental clerk’s record containing a proper certification is not filed in accordance with this order, this matter will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).

          It is so ordered.

Per Curiam

 

Do not publish.

etion in the conduct of voir dire examination. The voir dire process is "designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned to it." Armstrong v. State, 897 S.W.2d 361, 363 (Tex.Cr.App. 1995) (en banc). Appellant does not argue that the prosecutor's questions improperly sought to inflame any bias or prejudice of the prospective jurors nor that they constituted an improper appeal to ignore any of appellant's constitutional rights. Counsel's conduct and the court's supervision of voir dire is subjective and case specific and we decline to attempt to "micro manage" that stage of the trial and accordingly, can only review it for abuse of discretion. Appellant does not contend the trial court abused its discretion. Considering that appellant does not contend that any of his constitutionally guaranteed rights were implicated by the alleged erroneous voir dire, his third point is overruled.

By his first point, appellant contends the trial court erred in denying his motion for mistrial after the State inserted appellant's status as an illegal alien into the case without reason and contrary to our decision in the prior case. ⁽¹⁾ We disagree. The State called Mitchell Matthews as a witness. ⁽²⁾ During his brief testimony, ⁽³⁾ he testified that on the night of the offense, he visited with the nurse at the hospital. Then, when asked by the prosecutor what he did after visiting with the nurse, he testified:

I contacted my captain and advised that we did appear to have a sexual assault, and advised him that our suspect was an illegal immigrant in Texas.

Appellant's counsel promptly objected to the testimony as being irrelevant which was sustained. Also, the trial court granted counsel's motion to strike the answer but denied counsel's motion for mistrial. After the witness was excused and the jury was granted a recess, appellant's counsel re-urged the motion for mistrial. In response, the prosecutor advised the court he had previously admonished the witness to avoid making any reference to appellant's status as an illegal alien, but did not have time before calling the witness to remind him of the admonishment. After denying the motion for mistrial again by implication, the trial court said:

All right. Do you wish any further instruction, Mr. Lopez, from the court to the jury, to disregard any kind of reference to the immigration status?

In response, trial counsel replied:

No, Sir. I think at that point it would be maybe to recall something I'm hoping that they forget.

The denial of a motion for mistrial is reviewed under an abuse of discretion standard. Trevino v. State, 991 S.W.2d 849, 851 (Tex.Cr.App. 1999). Where the decision to deny a motion for mistrial is within the zone of reasonable disagreement, an abuse of discretion is not shown. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App. 1990). Here, after the single reference to appellant's status as an illegal alien, it was not mentioned again. Moreover, the trial court asked counsel if he desired an instruction to the jury to disregard the comment, but counsel preferred that no instruction be given. As in Richards v. State, 912 S.W.2d 374 (Tex.App.--Houston [14th Dist.] 1995, pet. ref'd) and Sperling v. State, 924 S.W.2d 722 (Tex.App.--Amarillo 1996, pet. ref'd), because the reference was an isolated reference, we conclude that an instruction to disregard would have been sufficient and thus conclude the trial court did not abuse its discretion in denying the motion for mistrial. Appellant's first point is overruled.

By his fifth and final point, appellant contends his trial counsel was ineffective in presenting his case by failing to perform at an objectively reasonable level, and but for trial counsel's non-strategical errors the verdict is questionable. We disagree. A claim of ineffective assistance of counsel is reviewed under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). ⁽⁴⁾ Under Strickland, a defendant must establish that (1) counsel's performance was deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different, a reasonable probability being a probability sufficient to undermine confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). In other words, appellant must demonstrate that the deficient performance prejudiced his defense. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S. Ct. 1368, 131 L. Ed. 2d 223 (1995).

The adequacy of defense counsel's assistance is based upon the totality of the representation rather than by isolated acts or omissions of trial counsel. Id. Although the constitutional right to counsel ensures the right to reasonably effective counsel, it does not guarantee errorless counsel, whose competency or accuracy of representation is to be judged by hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Cr.App. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App. 1993). Appellate review of trial counsel's representation is highly deferential and presumes that counsel's conduct fell within the wide range of reasonable and professional representation. Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002); see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001). Also, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App. 1999).

Before we commence our analysis of appellant's argument, we first focus on the presumption that counsel's conduct fell within the wide range of reasonable and professional representation. After his first conviction, appellant retained counsel to represent him on direct appeal. Then, upon retrial, appellant again retained his appellate counsel to represent him in his second trial presently under review with the assistance of appointed counsel. By the reporter's record of the first trial and first appeal, counsel had the uncommon opportunity to analyze the trial tactics of counsel at the first trial and to develop his trial tactics by his knowledge of the evidence and the tactics of counsel for the State and appellant at the first trial.

Appellant identifies numerous instances of alleged error which he claims demonstrates he was denied effective assistance of counsel, to-wit:.

• •Failure to have bench conferences recorded. Failure to request that voir dire proceedings or bench conferences be recorded does not constitute ineffective assistance as a matter of law. See Oliva v. State, 942 S.W.2d 727, 733 (Tex.App.--Houston [14th Dist.] 1997, pet. dism'd, 991 S.W.2d 803 (Tex.Cr.App. 1998).



• •Leading question to 12 year old victim. In cases dealing with child victim/witness, the rule against leading questions is relaxed. Rodriguez v. State, 997 S.W.2d 640, 643 (Tex.App.-Corpus Christi 1999, no pet.).



• •Expert testimony bolstering victim's credibility. Results of nurse's physical examination of victim not implicated. Schutz v. State, 957 S.W.2d 52, 69 (Tex.Cr.App. 1997) (en banc), cited by appellant not applicable because it is limited to expert testimony on truthfulness because it was in part based on a belief that psychology is not an exact science.



• •Failure to call an expert without prior notice. Counsel references nothing to show that even if called, expert testimony would have been beneficial to appellant's position. Moreover, because the nurse was called at the first trial, counsel had actual notice that she would probably be called at the second trial.



• •Failure to prevent receipt of improper evidence. Apparently appellant argues that evidence of his residence in a Hispanic community was received and was harmful. However, because the trial court appointed interpreters and other factors, the jury was aware of these factors.

Appellant's last two concerns, i.e., prosecutorial misconduct and counsel's opening of the door and failing to shut it present matters which are extremely subjective and not readily subject to any objective analysis. According to appellant, the "door was opened" regarding his alcohol use when trial counsel tried to have a State's witness admit she did not like him. However, it did demonstrate that the witness did not like him which the jury could consider in determining her credibility. Regarding the alleged misconduct of the prosecutor, appellant does not allege he made any appeal to race, religion, nationality, or made any plea to inflame the minds of the jury. Even though some of the references to appellant's state of undress, etc. might be considered to be in bad taste, appellant cites no authority and we have found none which would prohibit any such argument considering the charged offense and circumstances in the victim's home. Concluding that counsel's performance was not deficient, appellant's fifth point is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. See Ramirez v. State, 65 S.W.3d 156 (Tex.App.--Amarillo 2001, pet. ref'd).

2. At the time of the offense, Matthews was an officer with the Plainview Police Department. At the time of the second trial, he was employed as an officer with the Amarillo Police Department.

3. Testimony covered only five pages of the reporter's record.

4. The Court of Criminal Appeals has overruled both Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Cr.App. 1980) and Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App. 1987) by its decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999).