Lloyd Dean Clayton v. State

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00254-CR

Lloyd Dean Clayton,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2005-1581-C

MEMORANDUM  Opinion

            A jury convicted Lloyd Dean Clayton of felony driving while intoxicated and sentenced him to life in prison.  Clayton presents three issues on appeal: (1) the State injected false information into the punishment proceedings; (2) the State engaged in improper jury argument; and (3) trial counsel rendered ineffective assistance.  We affirm.

FALSE INFORMATION

            In his first issue, Clayton argues that the State violated due process by presenting false information regarding his prior murder conviction.

            During the punishment phase, the State presented evidence of Clayton’s prior criminal offenses, including a 1982 murder conviction.  On cross-examination, the State asked Clayton’s community supervision officer about the conviction:

STATE:  Were you aware that his murder case was originally a capital murder case and that he actually plead to life?

WITNESS:  No, I was not.                                                                            

Clayton contends that his murder case was not for capital murder; thus, the assertion that he committed capital murder was “outside the record” and the State presented the jury with false information.  Because Clayton did not object to the State’s question, the State argues that Clayton has failed to preserve this issue for appellate review.  Clayton acknowledges his failure to object, but urges that his complaint affects the “public interest in an accused being accorded due process of law” and so constitutes fundamental error that may be raised for the first time on appeal.[1]  We disagree.

The Court of Criminal Appeals has identified three categories of fundamental error: (1) the denial of absolute, systemic requirements, (2) the violation of rights which are waivable only, and (3) errors recognized by the legislature as fundamental.  See Saldano v. State, 70 S.W.3d 873, 887-88 (Tex. Crim. App. 2002) (citing Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993)).  In Saldano, the Court enumerated the following “fundamental errors:” (1) absence of jurisdiction over the person of the defendant; (2) absence of subject-matter jurisdiction; (3) prosecution under an ex post facto law; (4) denial of the right to counsel; (5) denial of the right to a jury trial; (6) denial of 10 days' preparation before trial for appointed counsel; (7) holding trials at a location other than the county seat; (8) comments by a trial judge which taint the presumption of innocence; and (9) jury charge errors resulting in egregious harm.  See Saldano, 70 S.W.3d at 887-89.

Clayton’s complaint does not fall within any of these categories.  Moreover, Texas courts have held that a defendant must object to the State’s use of allegedly false evidence to preserve the complaint for appeal.  See Haliburton v. State, 80 S.W.3d 309, 315 (Tex. App.—Fort Worth 2002, no pet.); see also De Los Santos v. State, No. 04-05-00459-CR2006, Tex. App. Lexis 7185, at *16-17 (Tex. App.—San Antonio Aug. 16, 2006, no pet.) (not designated for publication); Villarreal v. State, No. 04-02-00886-CR, 2005 Tex. App. Lexis 9781, at *2-3 (Tex. App.—San Antonio Nov. 23, 2005, no pet.) (not designated for publication)  (failure to object to allegedly false testimony did not preserve due process complaint); Rodriguez v. State, No. 01-05-00032-CR, 2006 Tex. App. Lexis 2007, at *19-24 (Tex. App.—Houston [1st Dist.] Mar. 16, 2006, pet. ref’d) (not designated for publication) (failure to object to State’s questions “that implied the existence of a factual predicate that the prosecutor either knew or should have known was false” did not preserve due process complaint).  Accordingly, Clayton has failed to preserve his complaint for appellate review.  We overrule his first issue.

IMPROPER JURY ARGUMENT

            In Clayton’s second issue, he contends that the State engaged in improper jury argument by presenting false evidence of Clayton’s prior murder conviction.  During closing argument at the punishment phase, the State argued that:

Then he commits the murder offense.  And I want you to look at this paperwork, if you will.  He plead to life because it was a capital case.  So this is break number one.  He could have been put on trial and had to face the death penalty but he took the plea and he took a life sentence instead. 

Clayton did not object to the State’s argument. 

            “[A] defendant’s failure to object to a jury argument or a defendant’s failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal.”  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004); see also Godsey v. State, 989 S.W.2d 482, 496 (Tex. App.—Waco 1999, pet. ref’d).  Improper jury argument may not be raised for the first time on appeal.  See Cockrell, 933 S.W.2d at 89; see also Threadgill, 146 S.W.3d at 670-71; Moreno v. State, 195 S.W.3d 321, 329 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d).  We overrule Clayton’s second issue.

                                                   INEFFECTIVE ASSISTANCE

Clayton contends, in his third issue, that his trial counsel rendered ineffective assistance by failing to object to the State’s use of allegedly false testimony.[2]

To prove ineffective assistance, an appellant must show that: (1) counsel’s performance was deficient; and (2) the defense was prejudiced by counsel’s deficient performance.  See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003).  The appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission.  Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).  There is “a strong presumption that counsel’s conduct fell within a wide range of reasonable representation.”  Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  “[A]ny 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. Crim. App. 1999).

              Clayton did not file a motion for new trial alleging ineffective assistance.  The record is silent as to trial counsel’s reasons for not objecting to the State’s question or the State’s closing argument.  It is possible that trial counsel did not object in order to avoid drawing further attention to the murder conviction.  See Oliva v. State, 942 S.W.2d 727, 733 (Tex. App.—Houston [14th Dist.] 1997) (failure to object to State’s alleged mischaracterization of prior conviction may have been trial strategy to avoid overemphasizing prior conviction), pet. dism'd improvidently granted, 991 S.W.2d 803 (Tex. Crim. App. 1998); see also Cravens v. State, No. 2-04-448-CR2006, Tex. App. Lexis 1885, at *19-20 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.) (not designated for publication).  However, we are not permitted to speculate as to trial counsel’s reasons for failing to object.  See McNeil v. State, 174 S.W.3d 758, 760 (Tex. App.—Waco 2005, no pet.); see also Bone, 77 S.W.3d at 835; Thompson, 9 S.W.3d at 814.

Absent a record revealing trial counsel’s strategy or motivation, Clayton has not defeated the strong presumption that trial counsel’s actions fell within the wide range of reasonable professional assistance.  See McNeil, 174 S.W.3d at 760 (citing Thompson, 9 S.W.3d at 814).  Because Clayton’s ineffective assistance claim is better raised through an application for a writ of habeas corpus, we overrule his third issue.  See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Bone, 77 S.W.3d at 837 n.30.

Having overruled Clayton three issues, we affirm the trial court’s judgment.    

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna                 

(Chief Justice Gray concurs in the Court’s judgment which affirms the trial court’s judgment without a separate opinion, but does not join the Court’s opinion)

Affirmed

Opinion delivered and filed October 3, 2007

Do not publish

[CRPM]

---

[1] Fundamental error is that which “directly and adversely affects the interest of the public generally, as such interest is declared in statutes or the constitution of the State.”  G.A.O. v. State, 854 S.W.2d 710, 715 (Tex. App.—San Antonio 1993, no writ).  Deliberate presentation of false evidence by the State violates due process. See Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972); see also Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959).

[2]               Clayton’s argument appears to be premised on the idea that trial counsel failed to adequately investigate Clayton’s prior criminal history; otherwise, trial counsel would have recognized that the conviction was not for capital murder and so would have objected.