Hubble, William Buckner

PD-0249-15
No.
IN THE TEXAS COURT OF
CRIMINNAL APPEALS
WILLIAM BUCKNER HUBBLE
Petitioner,
V.
March 6, 2015
THE STATE OF TEXAS,
Respondent.
From the Second Court of Appeals, No. 02-13-00541-CR,
and the District Court of Cooke County, Texas,
Cause No. CR-07-256
PETITION FOR DISCRETIONARY REVIEW
Jeff Springer
State Bar No. 18966750
SPRINGER & LYLE, LLP
1807 Westminster
Denton, TX 76205
940.387.0404 (ph)
940.383.7656 (fax)
jeff@springer-lyle.com (email)
ATTORNEY FOR APPELLANT
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ 2
TABLE OF AUTHORITIES. ........................................................................................................ 3
STATEMENT REGARDING ORAL ARGUMENT ..................................................................... 4
STATEMENT OF THE CASE....................................................................................................... 4
PROCEDURAL HISTORY............................................................................................................ 4
GROUNDS FOR REVIEW ............................................................................................................ 5
ARGUMENT ................................................................................................................................. 6
(1) Did the Court of Appeals err in applying Tex. R. App. P. 33(a)(1)
in its analysis of the context of the trial record?. .......................................................... 7
(2) Did the Court of Appeals improperly fail to rebut, or at least
address, Petitioner’s Tex. R. App. P. 33(a)(1) analysis of the
context of the record?.................................................................................................... 7
(3) Did the Court of Appeals err in failing to reach the merits of
Petitioner’s complaint that his trial counsel was prevented from
telling the jury that one of his enhancement convictions had been
reclassified to a misdemeanor?. .................................................................................... 8
PRAYER ..................................................................................................................................... 12
CERTIFICATE OF COMPLIANCE ............................................................................................ 13
CERTIFICATE OF SERVICE ..................................................................................................... 13
APPENDIX
Court of Appeals' Opinion .................................................................................................. 1
Court of Appeals' Opinion on Rehearing ............................................................................ 2
2
INDEX OF AUTHORITIES
Cases
Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010) ................................10
Eckert v. State, 672 S.W.2d 600, 603 (Tex. App. Austin 1984, pet. ref’d) ...............9
Ex parte Hubble, 2013 Tex. Crim. App. Unpub. LEXIS
1041 (Tex. Crim. App. Oct. 9, 2013) .......................................................................5
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) ...........................11
Melendez v. State, 4 S.W.3d 437, 442 (Tex.App.--Houston
[1st Dist.] 1999, no pet.), overruled on other grounds,
Small v. State, 23 S.W.3d 549 (Tex.App.--Houston
[1st Dist.] 2000, pet. ref'd) .........................................................................................9
State v. Wooldridge, 237 S.W.3d 714, 716–17 (Tex. Crim. App. 2007)...................7
Statutes
TEX. PENAL CODE ANN. § 30.04(d) (Vernon 2013) ...................................................6
Rules
Tex. R. App. P. 33.1(a)(1) ...................................................................................7, 10
Tex. R. App. P. 44 ....................................................................................................10
3
STATEMENT REGARDING ORAL ARGUMENT
Petitioner waives oral argument
STATEMENT OF THE CASE
Appellant was convicted of felony unlawful possession of a firearm in 2010.
[CR 51-52]. His range of punishment was enhanced by two prior felonies, one of
which was a 1987 conviction for burglary of a motor vehicle. Id. He was sentenced
to sixty years incarceration. Id.
On appeal, Appellant complained that his sentence was affected by the trial
court’s refusal to allow his trial attorney to argue that the 1987 felony used to
enhance his range of punishment had been reclassified to a misdemeanor a few
years after his conviction. In a memorandum opinion with one justice concurring
in the result only, the Court of Appeals refused to consider the merits of the
argument, disregarding Petitioner’s interpretation of the record and concluding
instead that the only apparent argument was improper, and error as to any another
argument had not been preserved for appeal. [AX 1 at 5].
Petitioner challenged the Court of Appeals holding in a Motion for
Rehearing. [See AX 2]. The motion was denied, but one justice noted that she
would have granted a rehearing. Id.
4
Appellant filed this Petition for Review to challenge the Court of Appeals’
holding that his trial counsel attempted only an improper argument and failed to
preserve error on the specific complaint raised on appeal.
PROCEDURAL HISTORY
Petitioner timely perfected his appeal after this court granted his application
for writ of habeas corpus. Ex parte Hubble, 2013 Tex. Crim. App. Unpub. LEXIS
1041 (Tex. Crim. App. Oct. 9, 2013). On December 23, 2014 the Court of Appeals
affirmed his conviction. [AX 1 at 6]. Petitioner requested rehearing on January 22,
2015. The Court of Appeals denied the motion on February 5, 2015. [AX 2 at 1].
GROUNDS FOR REVIEW
(1) Did the Court of Appeals err in applying Tex.
R. App. P. 33(a)(1) in its analysis of the context of the
trial record?
(2) Did the Court of Appeals improperly fail to
rebut, or at least address, Petitioner’s Tex. R. App. P.
33(a)(1) analysis of the context of the record?
(3) Did the Court of Appeals err in failing to reach
the merits of Petitioner’s complaint that his trial
counsel was prevented from telling the jury that one
of his enhancement convictions had been reclassified
to a misdemeanor?
5
ARGUMENT
A. Factual Background
A Cooke County jury convicted Petitioner of felony unlawful possession of
a firearm in April of 2010. [CR 51-52]. At the punishment stage of his trial,
Petitioner’s attorney attempted argue that one of his enhancement convictions, a
1987 felony burglary of a vehicle, had been reclassified to a misdemeanor a few
years after the conviction. [3 RR at 86]. See TEX. PENAL CODE ANN. § 30.04(d)
(Vernon 2013).
Petitioner’s attorney began the argument by reminding the jury that the
conviction had occurred many years before, when Petitioner was 19 years old. [3
RR at 86]. Then, as he was about to address the crime’s reclassification, the
prosecutor objected (mid-sentence) that the argument was outside the record. Id.
The trial judge sustained. Id. After the objection was sustained, Petitioner’s trial
counsel simply moved on. He did not perfect a bill of exceptions or attempt to
explain to the judge how he intended to finish his sentence, but the record makes
clear what he intended to say: He was about to tell the jury that burglary of a
vehicle is not a misdemeanor, not a felony.
When the jury retired to deliberate, it the judge’s instructions put the range
of punishment at 25 to 99 or life. [CR at 43]. The jury obviously split the range
6
down the middle. Petitioner’s punishment was assessed at sixty years
confinement. [CR at 41].
Petitioner appealed. In two issues, he argued that the trial judge had
impermissibly prevented his trial attorney from telling the jury that the
enhancement felony had been reclassified to a misdemeanor.1 [AX 1 at 3]. The
Court of Appeals never addressed this argument. It held instead that Petitioner’s
counsel must have intended to argue that the reclassified burglary conviction could
not be used to enhance Petitioner’s sentence, even though Petitioner never raised
the issue, and even though the record contains no indication whatsoever that this
argument was intended. [AX at 4-6].
This Petition has been filed to challenge the Court of Appeals’ failure to
reach the merits of Petitioner’s complaints.
B. Argument and Authorities
(1) Did the Court of Appeals err in applying Tex.
R. App. P. 33(a)(1) in its analysis of the context of the
trial record?
(2) Did the Court of Appeals improperly fail to
rebut, or at least address, Petitioner’s Tex. R. App. P.
33(a)(1) analysis of the context of the record?
1
This court held long ago that the reclassification of a felony to a misdemeanor does not
disqualify the conviction from being used to enhance the range of punishment. State v.
Wooldridge, 237 S.W.3d 714, 716–17 (Tex. Crim. App. 2007). However, to appellate counsel’s
knowledge, no court has addressed whether the reclassification can be communicated to the jury
in closing argument.
7
(3) Did the Court of Appeals err in failing to reach
the merits of Petitioner’s complaint that his trial
counsel was prevented from telling the jury that one
of his enhancement convictions had been reclassified
to a misdemeanor?
To preserve error on appeal, Tex. R. App. P. 33.1(a)(1) only requires that the
specific grounds be apparent from the context of the record. To understand the
context of the trial court’s ruling during the closing argument in Petitioner’s case,
one has to start at the charge conference. There, Petitioner’s trial counsel objected
to the use of the burglary conviction to enhance Petitioner’s punishment. [3 RR at
69-70]. The trial court correctly overruled the objection. Id. at 70. The dialogue
during the charge conference, however, is important because it demonstrates that
the trial judge knew that Petitioner’s burglary offense had been reclassified, and
that Petitioner’s attorney knew that it would be included in the enhancement
charge over his objection.
When jury argument began only a short time later, Petitioner’s attorney
devoted a few minutes to the burglary conviction. {3 RR 86]. Then, it became
obvious that he intended to address the reclassification. The record of the
argument and objection is short:
William Hubble was born in 1968. The State has
alleged that he committed the crime, or was convicted
of a crime of burglary of a motor vehicle in 1987.
That would have made him around 19 years old. I don't
know very many people that would want to be judged on
their behavior as a 19 year old.
* * *
8
But another thing to remember about burglary of a
motor vehicle, and no one is saying it's a good crime.
There's no such a thing. But you also need to realize
that since then and now –-
MR. POOLE: Judge, objection. He's going outside
the record.
THE COURT: Sustained.
MR. FOSTEL: Okay.
Id. It takes no imagination to complete the sentence: “But you also need to realize
that since then and now-- [burglary of a vehicle has been reclassified to a
misdemeanor.]” (Emphasis added.) Apparent from the context of the record was
that Appellants’ trial counsel intended to tell the jury that the enhancement felony
had been reclassified to a misdemeanor.2 Beyond this, the record is completely
silent.
Petitioner argued in the Court of Appeals that the judge erred in sustaining
the prosecutor’s objection. [AX 1 at 3]. Evidence of Appellant’s prior conviction
for burglary of a vehicle had been admitted, showing that the conviction occurred
in 1987. See, State’s Exh. 8; [3RR at 66]. That the offense had been reclassified by
the legislature as a misdemeanor was not a fact extraneous to the evidence, but a
reasonable explanation of the law based upon facts admitted. See Eckert v. State,
672 S.W.2d 600, 603 (Tex. App.-- Austin 1984, pet. ref’d). Since its
reclassification was not a misstatement of the law, Appellant argued that his
2
This was the subject of Appellant’s issue on appeal—whether that argument was a correct
statement of the law, constituting proper jury argument. This is a question of first impression
that the Court avoided by determining that trial counsel had failed to preserve error.
9
attorney was entitled to discuss it. Id. See also Melendez v. State, 4 S.W.3d 437,
442 (Tex. App.--Houston [1st Dist.] 1999, no pet.), overruled on other grounds,
Small v. State, 23 S.W.3d 549 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd).
The trial judge erred when she sustained the Prosecutor’s objection, and it cannot
be said beyond a reasonable doubt that the error would not have affected
Petitioner’s sentence. See Tex. R. App. P. 44.3
The Court of Appeals refused to address Petitioner’s argument. Instead, it
determined that “the only matter apparent to the trial court from the context of the
record was that defense counsel wanted to inform the jury that it should not use the
prior burglary conviction for enhancement…” [AX 1 at 5](emphasis added). The
court did not explain how this conclusion is supported by the record, nor did it
attempt to rebut Petitioner’s analysis.
The Court of Appeals’ rationale is demonstrably flawed. If it were correct,
one should be able to complete trial counsel’s unfinished sentence with a phrase
consistent with the court’s conclusion that he attempted to inform the jury that the
conviction could not be used for enhancement. There is simply no way to do that.
The court’s tortured analysis requires finishing the sentence per Petitioner’s
analysis, then speculating about what might be said afterward. Rule 33 does not
3
Prohibiting counsel from making a particular jury argument amounts to a denial of the
defendant's right to counsel when the argument is one the defendant is entitled to make.
Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010).
10
allow for that kind of conjecture; instead, it limits courts to what is “apparent from
the context of the record”, eliminating speculation about what might occur after the
matter apparent are concluded. Tex. R. App. P. 33.1(a)(1).
Having decided that Petitioner’s attorney attempted an improper argument,
the Court dismissed any other interpretation by holding that, to the extent any other
statement was intended, Petitioner’s trial counsel failed to preserve error. [AX 1 at
5]. The Court dismissed other contextual interpretations without ever addressing
Petitioner’s analysis, nor explaining how the argument he advocated had been
waived when the one raised sua sponte by the Court of Appeals was not. In short,
its analysis was erroneously harsh and patently unfair:
The standards of procedural default…are not to be implemented by
splitting hairs in the appellate courts. As regards specificity, all a party
has to do to avoid the forfeiture of a complaint on appeal is to let the
trial judge know what he wants, why he thinks himself entitled to it, and
to do so clearly enough for the judge to understand him at a time when
the trial court is in a proper position to do something about it.
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Had the court
fairly examined the record and Petitioner’s complaint, it would have agreed with
Petitioner’s contextual analysis, determined that his trial counsel had preserved
error, and reached the merits of Petitioner’s appeal.4
4
It is worth noting that Justice Dauphinot only concurred in the Court of Appeals’ result, and
ultimately would have granted Appellant a rehearing. [AX 1 at 6; AX 2].
11
PRAYER
Petitioner’s complaint in this case was crystal clear to everyone in the
courtroom on the last day of his trial. His trial attorney didn’t need to do anything
else to make his intentions clearer. The Court of Appeals erred in resorting to a
procedural default to avoid the merits of Petitioner’s complaint that the trial court
erred and deprived him of his Sixth Amendment right to counsel by sustaining the
objection that prevented his attorney from telling the jury that one of his
enhancement convictions had been reclassified to a misdemeanor.
THEREFORE, Petitioner requests this Court to grant his Petition for
Review; determine that court of appeals erred in failing to reach the merits of
Petitioner’s complaint; and reverse the court of appeals’ decision and remand this
case to the court of appeals for a decision on the merits.
Respectfully submitted,
Jeff Springer
State Bar No. 18966750
SPRINGER & LYLE, LLP
1807 Westminster
Denton, TX 76205
940-387-0404 (phone)
940-383-7656 (fax)
jeff@springer-lyle.com
/s/ Jeff Springer
. Jeff Springer
ATTORNEY FOR APPELLANT
12
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was served
in accordance with the Texas Rules of Appellate Procedure on the 6th day of
March, 2015, by delivering it to the following:
Ms. Janice Warder, Esq. Ms. Sue Korioth, Esq.
Cooke County District Attorney Special Prosecutor
101 Dixon Street, Suite 309 P.O. Box 600103
Gainesville, Texas 76240 Dallas, Texas 75360-0103
suekorioth@aol.com
/s/ Jeff Springer
CERTIFICATE OF COMPLIANCE
In compliance with Tex. R. App. P. 9.4(i), I certify that this document
contains 1,876 words. This document was created in Microsoft Word. The body is
in conventional 14 point text, and the footnotes are in conventional 12 point text. I
have relied on the software and word-count generated by the software in making
this certificate.
/s/ J. Jeffrey Springer .
13
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00541-CR
WILLIAM BUCKNER HUBBLE APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
TRIAL COURT NO. 07-256
----------
MEMORANDUM OPINION1
----------
Appellant William Buckner Hubble was charged with unlawfully possessing
a firearm at a location other than where he lived after having been convicted of a
felony. See Tex. Penal Code Ann. § 46.04(a) (West 2011). The State filed
notice of its intention to use two prior felony convictions to enhance punishment
to habitual offender status. The notice included a 1994 felony possession-of-a-
1
See Tex. R. App. P. 47.4.
controlled-substance conviction and a 1987 felony burglary-of-a-motor-vehicle
conviction.
A jury found Hubble guilty of unlawfully possessing a firearm. Prior to
commencement of the punishment phase of trial, Hubble’s defense attorney
objected to the use of Hubble’s 1987 burglary-of-a-motor-vehicle conviction as a
prior felony conviction for enhancement purposes because the legislature had
reclassified that offense from a felony to a misdemeanor after Hubble’s 1987
conviction. The trial court overruled the objection.
During the punishment phase of trial, the State introduced evidence to
support the two prior felony convictions. The State also introduced evidence of
Hubble’s prior misdemeanor convictions for assault in 1997, possession of
marijuana in 2003 and in 2005, driving while intoxicated in 1993 and 2005, and
possession of a prohibited weapon in 2006 and of a 1987 judgment revoking
probation for burglary of a habitation.
During closing arguments, Hubble’s attorney argued,
Now, the charge, of course, has a huge wide range just like I
told you it would during voir dire. You can assess anywhere from
two to 99 years or life, depending upon your findings after you
review this charge on punishment.
. . . The State has alleged that he committed the crime, or
was convicted of a crime of burglary of a motor vehicle in 1987.
That would have made him around 19 years old. I don’t know very
many people that would want to be judged on their behavior as a 19
year old.
Now, did there happen to be a gun? Obviously not. . . . . But
another thing to remember about burglary of a motor vehicle, and no
2
one is saying it’s a good crime. There’s not such a thing. But you
also need to realize that since then and now—
The State then objected that “he’s going outside the record.” The trial court
sustained the objection.
The jury found both enhancement allegations to be true, which increased
the punishment range to a minimum of 25 years’ imprisonment and a maximum
of 99 years’ or life imprisonment, and assessed Hubble’s punishment at sixty
years’ confinement. See Tex. Penal Code Ann. §12.42(d) (West Supp. 2014).
The trial court sentenced Hubble accordingly. Although Hubble did not timely
perfect an appeal, the Texas Court of Criminal Appeals granted his request for
leave to file an out of time appeal. See Ex Parte Hubble, No. WR-79509-01,
2013 WL 5568448 (Tex. Crim. App. Oct. 9, 2013) (not designated for
publication).
In two issues, Hubble contends that the trial court abused its discretion by
sustaining the State’s objection to his closing argument as set forth above.
Hubble argues that the trial court’s ruling impermissibly limited his closing
argument and deprived him of his Sixth Amendment right to counsel. Hubble
acknowledges that the Texas Court of Criminal Appeals has held that the State
may use for enhancement purposes a prior felony that has since been
reclassified as a misdemeanor. See State v. Wooldridge, 237 S.W.3d 714, 716–
17 (Tex. Crim. App. 2007). And he concedes that the State’s use of his prior
conviction for burglary of a motor vehicle for enhancement was proper in this
3
case because that offense was classified as a felony at the time of his 1987
conviction. Rather, Hubble asserts that he should have been allowed to tell the
jury that the offense of burglary of a motor vehicle has since been reclassified as
a misdemeanor and that, consequently, had he committed that offense a few
years later, the State could not have used it to enhance his punishment in this
case.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Landers v. State, 402 S.W.3d
252, 254 (Tex. Crim. App. 2013); Sample v. State, 405 S.W.3d 295, 300 (Tex.
App.—Fort Worth 2013, pet. ref’d). Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a)(2); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). “To
avoid forfeiture of a complaint on appeal, all a party has to do is let the trial judge
know what he wants and why he thinks he is entitled to it and do so clearly
enough for the judge to understand the request at a time when the trial court is in
a proper position to do something about it.” Bedolla v. State, 442 S.W.3d 313,
316 (Tex. Crim. App. 2014).
Here, Hubble did not inform the trial court of the specific argument he
intended to make after the State interrupted his argument to object and after the
4
trial court sustained the State’s objection. Defense counsel argued, “[A]nother
thing to remember about burglary of a motor vehicle, and no one is saying it’s a
good crime. There’s not such a thing. But you also need to realize that since
then and now—” The only other argument in the record that sheds light on what
defense counsel was attempting to argue was his objection at the beginning of
the punishment phase of trial to the State’s use of Hubble’s 1987 burglary of a
vehicle conviction for enhancement. Specifically, defense counsel stated,
Judge, I am going to object to the portion and to any enhancement
that’s come up with regard to burglary of a motor vehicle inasmuch
as that offense since then has been reduced to a Class A -- I mean,
not this particular one. I’m saying the legislature since the ‘80s has
realized -- has thought better of it and gone back in and made that a
Class A misdemeanor. I don’t think it’s fair to come at him two
decades later using it as a felony enhancement. And we are asking
that that be removed from the charge.
As the State recognizes on appeal, Hubble was not required to formally
except to the trial court’s ruling on the State’s objection to preserve error for
appeal but the only matter apparent to the trial court from the context of the
record was that defense counsel wanted to inform the jury that it should not use
the prior burglary conviction for enhancement because it has been reclassified as
a misdemeanor. To the extent that defense counsel was attempting to make any
other argument, he has not preserved his complaint for appeal. See Tex. R.
App. P. 33.1(a)(1). And to the extent that defense counsel was attempting to
argue that the jury should not use Hubble’s 1987 felony conviction to enhance his
punishment because it has since been reclassified as a misdemeanor, this is not
5
a proper statement of the law, as conceded by Hubble on appeal. See
Wooldridge, 237 S.W.3d at 716–17. This argument is also contrary to the law
contained in the jury charge. See State v. Renteria, 977 S.W.2d 606, 608 (Tex.
Crim. App. 1998) (holding that jury argument stating law contrary to the jury
charge is improper). The jury charge stated the applicable law regarding the
jury’s consideration of the prior felony offenses alleged by the State for
enhancement; the jury was tasked with determining whether the allegation of the
prior conviction was true beyond a reasonable doubt. An argument that the jury
find the allegation not true because the prior offense is no longer classified as a
felony would be an improper suggestion that the jury refuse to follow the law.
See Eckert v. State, 672 S.W.2d 600, 603 (Tex. App.—Austin 1984, pet. ref’d).
Because Hubble was not entitled to make the only argument preserved for
appeal and because he did not preserve for appeal any other complaint
regarding his attempted jury argument, we overrule Hubble’s two issues and
affirm the trial court’s judgment. See Tex. R. App. P. 33.1(a)(1).
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J. concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 23, 2014
6
FILE COPY
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00541-CR
WILLIAM BUCKNER HUBBLE APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
TRIAL COURT NO. 07-256
------------
ORDER
------------
We have considered “Appellant’s Motion For Rehearing.”
It is the opinion of the court that the motion for rehearing should be and is
hereby denied and that the opinion and judgment of December 23, 2014, stand
unchanged.
The clerk of this court is directed to transmit a copy of this order to the
attorneys of record.n
SIGNED February 5, 2015.
/s/ Sue Walker
SUE WALKER
JUSTICE
FILE COPY
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DAUPHINOT, J. would grant.
2