Ronald Lane Chapman v. State

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00167-CR

Ronald Lane Chapman,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 235th District Court

Cooke County, Texas

Trial Court No. 04-013

MEMORANDUM  Opinion

          A jury convicted Ronald Lane Chapman of aggravated robbery and assessed his punishment at seventy-three years’ imprisonment.  Chapman contends in three points that: (1) the court abused its discretion by denying eight challenges for cause; (2) the court erred by failing to submit an instruction on the lesser-included offense of robbery; and (3) his right to due process was violated because the district attorney had represented him in a prior felony case which resulted in his conviction and which was used to enhance the punishment in this case.  We will affirm.

Challenges for Cause

          Chapman contends in his first point that the court abused its discretion by denying challenges for cause he asserted against eight members of the venire panel.

                    To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all his peremptory challenges were exhausted; 4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury.

Sells v. State, 121 S.W.3d 748, 758 (Tex. Crim. App. 2003); accord Stewart v. State, 162 S.W.3d 269, 280 (Tex. App.—San Antonio 2005, pet. ref’d).

          Here, Chapman did not request additional peremptory challenges.  Thus, he has not preserved this issue for appellate review.  See id.  Accordingly, we overrule Chapman’s first point.

Lesser-Included Offense

          Chapman contends in his second point that the court erred by failing to submit an instruction on the lesser-included offense of robbery.

          A defendant is entitled to an instruction on a lesser-included offense if (1) the requested charge is a lesser-included offense of the offense charged, and (2) there is some evidence which would permit a jury to rationally find that, if the defendant is guilty, he is guilty of only the lesser offense.  Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. App. 2004).

          For there to be “some evidence” to permit a finding on a lesser offense, the record  must contain “some evidence directly germane to the lesser-included offense.”  Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).  Thus, when the entitlement to an instruction on a lesser-included offense depends on whether the knife used in the crime is a deadly weapon, there must be evidence in the record “affirmatively characterizing the knife as non-deadly.”  Lawrence v. State, 783 S.W.2d 789, 793 (Tex. App.—El Paso 1990, no pet.).

          Here, the complainant testified that Chapman threatened her with a knife and demanded all the money from the cash register and her purse.  The State offered the knife in evidence, and she identified it as the weapon with which he had threatened her.  An officer who responded to the call found the knife lying in the grass in the area where Chapman had fled the scene.  He testified that the knife is twelve inches long and that the knife is a deadly weapon.  Another officer who responded to the call also testified that the knife is a deadly weapon.

          Chapman did not cross-examine these officers on this issue.  He offered no other evidence to suggest that the knife he used was anything other than a deadly weapon.

          Because there is no affirmative evidence in the record suggesting that the knife Chapman used is not a deadly weapon, he was not entitled to an instruction on the lesser-included offense of robbery.  See Hampton, 109 S.W.3d at 441; Lawrence, 783 S.W.2d at 793.  Accordingly, we overrule Chapman’s second point.

District Attorney’s Prior Representation

          Chapman contends in his third point that his right to due process was violated because the district attorney had represented him in a prior felony case which resulted in his conviction and which was used to enhance the punishment in this case.

          A defendant’s right to due process is violated when his defense counsel in a particular case later serves as a prosecutor in the same case.  See State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 6 (Tex. Crim. App. 1990) (orig. proceeding); Ex parte Spain, 589 S.W.2d 132, 134 (Tex. Crim. App. 1979); In re Reed, 137 S.W.3d 676, 679 (Tex. App.—San Antonio 2004, orig. proceeding); Canady v. State, 100 S.W.3d 28, 31-32 (Tex. App.—Waco 2002, no pet.).

          The district attorney’s representation of Chapman in the prior felony proceeding did not disqualify her from prosecuting him in this case, even though the prior felony conviction was used as for enhancement purposes in this case.  See Eleby v. State, 172 S.W.3d 247, 249-50 (Tex. App.—Beaumont 2005, pet. filed).  Accordingly, we overrule Chapman’s third point.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed January 11, 2006

Do not publish

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          One of the most difficult standards of review to apply is the abuse-of-discretion standard.  It is an easy test to state and most people have some notion of what it means just by the label.  It becomes a bit more problematic, however, when you actually try to define the standard. It serves no useful purpose here to catalog all the different ways that the test has been described to try to actually define how to objectively test a trial court’s decision by an abuse-of-discretion standard.  Probably the most complex test is the one defined by Justice John Powers in Landon v. Jean-Paul Budinger, Inc., from the Austin Court of Appeals in 1987.  Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934-937 (Tex. App.—Austin 1987, no writ).  The test is cumbersome and time consuming.  Parties do not brief in light of this description of the test because courts seldom attempt to use it.  On the other end of the spectrum of descriptions for the abuse-of-discretion standard of review would be something like, the trial court’s decision is “within the zone of reasonable disagreement.”  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

          And unless the reviewer is really careful, it is so very easy to find an abuse-of-discretion when the reviewer simply disagrees with the trial court.  For example, in this case, the Court makes no effort to determine whether there was a need for a hearing on the motion for new trial; but the Court remands the case for a hearing.  If the Court has not evaluated whether there was charge error, the Court cannot properly determine if a hearing was necessary.  If there was no error in the charge, there can be no ineffective assistance of counsel for not objecting to it, and there would be no need to hold a hearing on the motion for new trial.  Thus, the trial court did not abuse its discretion by not holding a hearing on the motion.

          And if there is error in the charge and it was harmless when measured against the standard for a defective charge to which an objection was made, then there, too, is no need to know why there was no objection by counsel.  It would not matter.  And if the charge is defective, and it is egregious harm, then it still does not matter because the Court could resolve the merits of the issue.  So, only if it lies betwixt and between egregious harm and harmful error if it had been objected to, does the Court need to know why counsel did not object to the charge.  Because only then does it matter if there was an objection.  And only then would we need a record of the trial counsel’s reasons for not objecting to address the ineffective assistance of counsel issue.

          The Court stops far short of the analysis necessary to properly resolve the issue.  I would not.  The Court should perform its assigned task and determine whether the trial court abused its discretion.  But a single vote will not change the result, so I will yield to a more timely response and note my dissent and await the time with patience until the trial court makes its determination known and the answer returned.  In the Interest of S.A.P., 135 S.W.3d 165, 177-178 (Tex. App.—Waco 2004)(Gray, C.J., dissenting), rev’d, 2005 Tex. LEXIS 52, *1; 48 Tex. Sup. J. 368 (Tex. Jan. 21, 2005).

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed on February 23, 2005