Bryan Williams v. State

  Opinion issued April 19, 2007  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-05-00766-CR

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BRYAN WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1008723

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MEMORANDUM OPINION

A jury convicted appellant, Bryan Williams, of aggravated robbery, found an enhancement allegation "true," and assessed punishment at 75 years' confinement. In six points of error, appellant contends that (1) the trial court erred by permitting the State to cross-examine appellant with specific instances of misconduct, (2) the trial court erred by permitting the State's fingerprint expert to testify although the State did not provide notice to appellant that the expert would testify, (3) counsel at trial was ineffective because he did not request a jury instruction on the voluntariness of appellant's statements to police, (4) the trial court erred by permitting the State to amend the indictment during trial, (5) there was a fatal variance between the indictment and the court's charge, and (6) the State impermissibly argued facts outside the record. We affirm.

Background

Because all six of appellant's alleged errors involve the punishment phase of the trial, only a brief recitation of facts is required. On November 29, 2004, as Brandy Smith was getting into her car to leave a grocery store, appellant pointed a gun at her, demanded her keys, and threatened to shoot her if she screamed. Smith ran back into the store and told an off-duty police officer who was working security that she had been robbed. The officer ran outside and found appellant in Smith's car. Appellant was struggling to get the car to move because he was unfamiliar with the standard transmission. The officer ordered appellant out of the car and then recovered the gun appellant had pointed at Smith from the front passenger seat.

Specific Instances of Misconduct

In his first point of error, appellant contends that the trial court erred, at punishment, by allowing the State to "impeach" appellant with his confession to police that he had committed 15 other robberies. Appellant argues that his testimony that he was "a good guy" and "not a bad person" did not "open the door" to the admission of evidence of the extraneous robberies. Specifically, appellant contends that his criminal history was irrelevant because testimony that "he was not a bad person" did not create a false impression before the jury. See Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988) (holding that defendant whose testimony at trial creates false impression about prior arrests, convictions, charges against him, or "troubles" with police can be impeached with prior acts of misconduct).

However, the trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). Evidence may be offered by the State and the defendant "as to any matter the court deems relevant to sentencing," including evidence of other crimes or bad acts. Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2006); Flores v. State, 125 S.W.3d 744, 746 (Tex. App.--Houston [1st Dist.] 2003, no pet.). The scope of punishment evidence is broad to enable a fact-finder to assess an appropriate sentence for a particular defendant. See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999).

Here, the trial court charged the jury that it could consider evidence of extraneous crimes or bad acts in assessing punishment. Appellant does not challenge the admission of testimony about previous robberies, and such evidence was relevant to assist the jury in determining an appropriate punishment after conviction. Accordingly, the trial court did not abuse its discretion in admitting such evidence.

We overrule point of error one.

Testimony by State's Fingerprint Expert

In point of error two, appellant contends the trial court erred by allowing Randy Schield, the State's fingerprint expert, to testify at the punishment phase even though the State had not given the defendant notice of its intent to call Schield. See Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon Supp. 2006). This evidence was used to support the allegation in the enhancement paragraphs of the indictment.

In Stoker v. State, 788 S.W.2d 1 (Tex. Crim. App. 1989), the Court of Criminal Appeals stated,

If a witness whose name is not on a witness list furnished the defendant is permitted to testify, the standard of review is whether the trial court abused its discretion in allowing such witness to testify. Among the factors which will be considered by this Court in determining whether there has been an abuse of discretion is a showing of bad faith on the part of the prosecutor in failing to disclose ahead of time the name of the witness. Another such factor is whether the defendant can reasonably anticipate that the witness would testify, although his or her name was not included within the witness list.

Id. at 15 (citations omitted).

In Irvine v. State, 857 S.W.2d 920, 927 (Tex. App.--Houston [1st Dist] 1993, pet. ref'd), the State, as in this case, failed to disclose to the defendant that it intended to call a fingerprint expert to prove up an enhancement allegation at punishment. Id at 926. This Court held that the trial court did not abuse its discretion in allowing the fingerprint examiner to testify because (1) there was no evidence in the record of bad faith on the part of the prosecutor, and (2) the allegations in the two enhancement paragraphs were clearly set out in the indictment and defendant's counsel should have anticipated that a fingerprint examiner would testify for the State to compare appellant's fingerprints with the fingerprints in the penitentiary packets. Id. at 927.

Similarly, in this case, there is no evidence of bad faith on the part of the prosecutor. Also, in light of the enhancement allegation in the indictment, appellant should have anticipated that a fingerprint expert would testify to prove up the enhancement in the event he was found guilty. Accordingly, the trial court did not abuse its discretion by permitting Schield to testify.

We overrule point of error two.

Ineffective Assistance of Counsel

In point of error three, appellant contends he received ineffective assistance of counsel at the punishment phase of the trial. Specifically, he contends that his attorney should have requested an instruction in the court's charge regarding the voluntariness of the statement appellant made to police, in which he confessed to committing 15 other robberies. ⁽¹⁾

To determine if a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, the appellant must demonstrate that his counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688, 104 S. Ct. at 2064; Howland v. State, 966 S.W.2d 98, 104 (Tex. App.--Houston [1st Dist.] 1998), aff'd, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, the appellant must establish that his counsel's performance was so prejudicial that it deprived him of a fair trial. Howland, 966 S.W.2d at 104. Thus, the appellant must show that a reasonable probability exists 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; Howland, 966 S.W.2d at 104. The appellant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

It is presumed that trial counsel's strategy was sound and that the representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant has overcome these presumptions, we are limited to the facts of the case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). An appellant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Ordinarily, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Generally, trial counsel should be given an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). However, if a silent record clearly indicates that no reasonable attorney could have made such trial decisions, to hold such counsel ineffective is not speculation. See Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex. Crim. App. 1992).

In this case, appellant did not file a motion for new trial and the record is silent as to why appellant's counsel did not request an instruction on the voluntariness of appellant's statement to police. Appellant directs us to no evidence demonstrating that his statement, in which he confessed to committing 15 other robberies, was involuntary. Here, trial counsel's failure to request a voluntariness instruction does not rise to a level such that no reasonable attorney could have made such a trial decision.

We overrule point of error three.

Amendment of Indictment

In point of error four, appellant contends the trial court erred by allowing the State to amend the indictment during trial. The indictment in the case provided:

Before the offense alleged above, on August 27, 1990, in Cause No. 555083 in the 263rd District Court of Harris County, Texas, the defendant was convicted of the felony of aggravated robbery.

At the beginning of the punishment phase of the trial, the prosecutor moved to abandon the "August 27" portion of the indictment, leaving only the year of the alleged prior conviction. Appellant objected to the change, and the State responded that it was abandoning surplusage in the indictment, not amending it.

Article 28.10 of the Code of Criminal Procedure provides that, "after notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences." Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 2003). However, "[a]n indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced." Tex Code Crim. Proc. Ann. art. 28.10(c) (Vernon 2003). A "different offense" means a different statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991).

An amendment to an indictment is a change that affects the substance of the indictment, while an abandonment, even if effected by a physical change in the indictment, does not affect its substance. Eastep v. State, 941 S.W.2d 130, 132-33 (Tex. Crim. App. 1997), overruled on other grounds, Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000). An alteration to the charging instrument that constitutes abandonment, rather than amendment of the instrument, does not invoke the requirements of article 28.10(c). See Eastep, 941 S.W.2d at 133.

An abandonment is appropriate in the following situations: (1) changing the ways or means of committing the offense; (2) reducing the charge to a lesser-included offense; and (3) eliminating surplusage. Mayfield v. State, 117 S.W.3d 475, 476 (Tex. App.--Texarkana 2003, pet. denied). Surplusage is "unnecessary language not legally essential to constitute the offense alleged in the charging instrument." Eastep, 941 S.W.2d at 134; see also Collins v. State, 500 S.W.2d 168, 169 (Tex. Crim. App. 973). The court in Whetstone v. State held,

The general rule is that allegations which are not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as surplusage.

Id., 786 S.W.2d 361, 364 (Tex. Crim. App. 1990), overruled on other grounds, Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001).

Because the month and day portions were not necessary to describe the offense charged in the enhancement paragraph, and the remaining allegations were sufficient to identify the offense, the trial court's change to the indictment was a proper abandonment, not an amendment. See Mayfield, 117 S.W.3d at 476; see also Chavis v. State, 177 S.W.3d 310, 311 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd) (holding deletion of convicting court in enhancement paragraph of indictment to be abandonment, not amendment, because allegation not necessary to describe offense).

Because the change to the indictment was an abandonment, not an amendment, the trial court did not err by permitting the change, over defendant's objection, during trial.

We overrule point of error four.

Fatal Variance

In point of error five, appellant contends there was a fatal variance between the indictment and the court's charge, and, as a result, the court's charge was an improper comment on the weight of the evidence. Specifically, appellant complains that the enhancement paragraph of the indictment [after alteration at the State's request] alleged that appellant had committed a prior offense in "1990," while the charge stated that the prior conviction occurred on "August 27, 1990."

A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument. Id. Surplusage may cause a variance between the pleading and the proof. Whetstone, 786 S.W.2d at 364. However, "only a material variance is fatal [and a] variance between the charging instrument and the proof at trial is material only if it operated to the defendant's surprise or prejudiced his rights." Gollihar, 46 S.W.3d at 264. The rule of surplusage is generally consistent with variance law's materiality requirement because an allegation that is not essential to constitute the offense, and the omission of which will not affect the charge against the defendant or will not be detrimental to the indictment will likely also not be "material" within the meaning of the fatal-variance doctrine. Id. at 250. Therefore, it may be disregarded as surplusage and an immaterial variance. Id.

In this case, a variance was created between the indictment and the jury charge because the date of the conviction in the enhancement paragraph was abandoned, leaving only the year of the conviction. However, that variance was not material. Both the enhancement paragraph and the indictment stated the same cause number, the same offense, the same court, and the same year of judgment. The only variance was in the omission of the month and day of the earlier conviction. Abandoning the month and day in the enhancement paragraphs would not have prevented appellant from locating the record of the prior conviction upon which the State relied, nor was the inclusion of the month and day essential to constitute the offense. As such, the variance was neither material nor fatal. See Freda v. State, 704 S.W.2d 41, 43 (Tex. Crim. App. 1986) (holding that variance not fatal when indictment alleged prior conviction for bank robbery, but proof showed defendant had been convicted of conspiracy to commit bank robbery); Rooks v. State, 576 S.W.2d 615, 617 (Tex. Crim. App. 1978) (holding that variance between charging instrument alleging prior conviction in the "Criminal District Court of Harris County" and proof showing conviction in the "184th District Court of Harris County" was not material); Bray v. State, 531 S.W.2d 633, 635 (Tex. Crim. App. 1976) (holding that variance in number of district court, when county and cause number of the conviction were correct, was not material); Barrett v. State, 900 S.W.2d 748, 752 (Tex. App.--Tyler 1995, pet. ref'd) (holding that variance not fatal when enhancement paragraph alleged burglary of building and proof showed prior conviction for attempted burglary of building).

We overrule point of error five.

Impermissible Jury Argument

In his sixth point of error, appellant contends he was denied a fair trial when the State impermissibly inflamed the jury by arguing outside the record. During the State's closing argument the prosecutor stated, "You can bet your bottom dollar if he gets out of prison, he will commit another aggravated robbery." Defense counsel objected that the argument was outside the record. The trial court sustained the objection, instructed the jury to disregard the argument, and denied appellant's motion for mistrial.

In Cook v. State, the prosecutor argued, "How many innocent victims have to be beaten, robbed, kidnapped and murdered before we as a society get the message? . . . . The man is a sociopath. He's going to kill people. He's dangerous. How many times will it take before that man is forever stopped?" 858 S.W.2d 467, 477 (Tex. Crim. App. 1993). The Court of Criminal Appeals held that this argument constituted a reasonable deduction from the evidence of appellant's violent past history as well as a proper plea for law enforcement. Id.

In the present case, the State introduced evidence that appellant had a prior conviction for aggravated robbery, and, at the punishment phase of the trial, proved up four similar aggravated robberies in which appellant was identified as the perpetrator. In addition, there was evidence that appellant had confessed to 15 other robberies. Thus, the prosecutor's argument that "You can bet your bottom dollar if he gets out of prison, he will commit another aggravated robbery" was a reasonable deduction from the evidence and a plea for law enforcement.

We overrule point of error six.

Conclusion We affirm the judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

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