John David Brown v. State of Texas

NO. 12-01-00117-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHN DAVID BROWN,

§ APPEAL FROM THE 337TH

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

§ HARRIS COUNTY, TEXAS

A jury convicted Appellant John David Brown of murder and assessed punishment at ninety-nine years in prison and a fine of $10,000.00. Appellant raises eight issues on appeal. We affirm.

Background     

In the early evening hours of August 15, 1999, Tony Gaston ("Tony"), who had graduated from high school the previous May and was set to begin college at the University of Houston the following week, went to meet someone who was selling a used car he was interested in buying. Tony was driving his father's dark blue Chevy pickup truck, and Tony's younger brother Justin Gaston ("Justin") was along for the ride. After meeting with the seller of the used car in a parking lot in Northshore in eastern Harris County, Tony decided to buy the vehicle and left to return home to get a check for the purchase. After Tony pulled out of the parking lot, he made a U-turn on Woodforest Boulevard and inadvertently cut off another automobile.

The car stayed behind the truck for a short distance and then came around the truck on its right side and got in front of it. The two vehicles continued to travel down Woodforest with the truck directly behind the car for several minutes. During this time, Justin observed that the car was a Mazda Protege and that there was a sticker on the bumper which read, "My child is an honor student at Field Elementary." Justin could see the driver of the Protege looking in his rearview mirror, waving his fingers and hands.

Soon the Protege moved into the left-hand lane. Tony continued in the same lane, and the Protege fell back so that it was driving beside the truck. Three or four miles ⁽¹⁾ from the place where Tony had pulled out in front of the Protege, the two vehicles stopped side by side at a red light, with the car on the left side of the truck. According to Justin, Tony looked at the two occupants of the Protege but did not say anything to them or gesture to them in any way. Justin recounted that Tony was not angry with the occupants of the Protege, but he told Justin the two guys were just being "asses."

When the light turned green, the truck began to pull forward. Justin heard glass shatter and assumed that someone had thrown a bottle at the truck. The truck continued forward a short distance but left the roadway and, after running along an iron fence, crashed into the office building of an apartment complex adjacent to Woodforest. The Protege sped away so hastily that Justin could actually smell rubber burning as the tires spun against the pavement.

After the truck came to rest, Justin observed that Tony was bleeding profusely and was unresponsive. Tony, who had been shot in the left side of his face, died early the next morning in a Houston hospital.

That same morning, Justin met with a police sketch artist who composed a picture of the passenger of the Protege from Justin's description. When the sketch and the description of the car were released to the public, an acquaintance of Appellant's recognized the sketch as Appellant and the car as one owned by Appellant's brother's girlfriend. Based on that individual's information, along with Justin's description of the two occupants of the Protege, the police began an investigation of Appellant and his brother, John Glenn Brown ("Glenn"). The brothers were subsequently charged with Tony's murder. They were tried together, and both were convicted.

The Right to Self-Representation  

In his first issue, Appellant argues that the trial court erred by "ignoring" his request to dismiss counsel and proceed pro se.

An accused has a constitutional right to represent himself in a criminal proceeding. Faretta v. California, 422 U.S. 806, 836, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975). However, this right does not attach until it has been clearly and unequivocally asserted. Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986). To preserve error on a trial court's failure to conduct a hearing on a defendant's pro se motion to dismiss counsel, a defendant is required to request a hearing. See Malcom v. State, 628 S.W.2d 790, 792 (Tex. Crim. App. [Panel Op.] 1982). The record does not reflect that Appellant ever requested a hearing on his motions to dismiss counsel and proceed pro se. Furthermore, our rules of appellate procedure provide that

[a]s a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, and the trial court ruled on the request, objection, or motion, either expressly or implicitly or refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

See Tex. R. App. P. 33.1 (emphasis added). Appellant argues that he was unable to request a ruling on his motions because counsel waived his appearance at the severance hearing. However, the record reflects that the severance hearing was continued to a second day and that Appellant was present on the second day of the hearing but did not request a ruling or object to the trial court's failure to rule at that time. Because the record does not reflect that Appellant requested a hearing on his motions to dismiss counsel and proceed pro se, requested a ruling on his motions, or objected to the trial court's failure to rule on the motions, Appellant has not preserved this issue for our review. Accordingly, Appellant's first issue is overruled.

The Right to be Present  

In his second issue, Appellant contends that the trial court erred by allowing trial counsel to waive his appearance at a pre-trial hearing on his motion to sever.

The presence of the defendant is required during any pre-trial proceeding. Tex. Code. Crim. Proc. Ann. art. 28.01 § 1 (Vernon 1989). A hearing on a motion to sever, where evidence is offered and argument is heard, is undoubtedly a "proceeding" at which the presence of the defendant is required by the Code of Criminal Procedure. However, a defendant's right to be present may be waived at such a hearing. See Tex. Code. Crim. Proc. Ann. art. 1.14(a) (Vernon Supp. 2002).

Rather than considering the merits of Appellant's argument that trial counsel's waiver of his presence at the hearing on the motion to sever was ineffective, we will assume Appellant's argument is correct and proceed to a harm analysis of the trial court's error in conducting a pre-trial proceeding in violation of a defendant's right to be present at that proceeding. Such error will be held harmless unless the defendant's presence bore a reasonably substantial relationship to the opportunity to defend. Adanandus v. State, 866 S.W.2d 210, 219-20 (Tex. Crim. App. 1993).

The hearing on Appellant's motion to sever was held over two days. Appellant was not present the first day, but he was present the second day. Appellant avers that in his absence, the State offered evidence relevant to severance and to a defense of which his counsel had no prior knowledge and of which Appellant alone could have had knowledge: that Glenn was the shooter. Consequently, according to Appellant, his absence on the first day of the hearing rendered his counsel unable to develop his defense. However, the matter of Glenn's being the shooter was not developed on the second day of the severance hearing when Appellant was present or at any time during the trial. Nowhere in the record of the trial is there any evidence that Glenn was the shooter.

Our review of the record reveals that on the first day of the hearing, counsel put on evidence and made well-articulated and coherent arguments on Appellant's behalf. On the second day of the hearing, when Appellant was present, the trial court gave the parties an opportunity to present further evidence or argument. All declined. Therefore, we have no reason to speculate that this was a viable defense or that Appellant's absence on the first day of a two-day hearing was the sole reason the defense was not mounted. Because the record before us fails to show that Appellant actually had any relevant information or knowledge which was not available to or possessed by his counsel on the first day of the hearing, we cannot say that Appellant was harmed by the violation of his right to be present. See Adanandus, 866 S.W.2d at 220; Muennink v. State, 933 S.W.2d 677, 684 (Tex. App.-San Antonio 1996, pet. ref'd). Appellant's second issue is overruled.

Severance and the Right to Confrontation    In his third issue, Appellant contends that the trial court erred by refusing to grant his motion to sever. In his fourth issue, Appellant argues that he was denied his constitutional right to confront and cross-examine the witnesses against him. Appellant briefs these issues together.

Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants. Tex. Code Crim. Proc. Ann. art. 36.09 (Vernon 1981). In cases in which, upon timely motion to sever and evidence introduced thereon, it is made known to the court that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant. Id.

A trial court has considerable discretion in deciding whether a joint trial would be so prejudicial to a particular defendant that a severance should be ordered. Hudson v. State, 794 S.W.2d 883, 885 (Tex. App.-Tyler 1990, no pet.). The defendant has the heavy burden of showing clear prejudice resulting from the denial of a request for severance. Id.

Glenn did not testify at trial. Appellant claims he was prejudiced by the trial court's refusal to sever his trial from Glenn's because hearsay statements made by Glenn, which incriminated Appellant, were admitted into evidence. ⁽²⁾ Specifically, Appellant contends that because he could not cross-examine Glenn, his right to confrontation was violated when hearsay statements made by Glenn which implicated Appellant in the murder were introduced through the testimony of Deputy Harold Moore, James Chaney, and Willie Cater. ⁽³⁾  

In all criminal prosecutions, state as well as federal, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution "to be confronted with the witnesses against him." U.S. Const. amend. VI.; Lilly v. Virginia, 527 U.S. 116, 123, 119 S. Ct. 1887, 1893, 144 L. Ed. 2d 117 (1999) (plurality opinion). The central purpose of the Confrontation Clause is to ensure the reliability of the evidence against an accused through rigorous testing in an adversary proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed. 2d 666 (1990). Confrontation enhances the accuracy of the fact-finding process because (1) a witness who testifies under oath will be impressed with the seriousness of the matter and the possibility of a penalty for perjury; (2) cross-examination, which has been described as "the greatest legal engine ever invented for the discovery of truth," is available for testing the credibility of the witness; and (3) the demeanor of the witness can be considered by the jury in assessing credibility. California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489 (1970) (citations omitted).   

The rules of evidence also ensure that the evidence against an accused will be reliable, and, under the rules of evidence, therefore, hearsay is generally not admissible. See Tex. R. Evid. 802; Green, 399 U.S. at 155, 90 S. Ct. at 1933. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). There are a number of exceptions to the hearsay rule. See Tex. R. Evid. 803, 804. When hearsay is admitted into evidence pursuant to an exception, an accused has no opportunity to confront and cross-examine a declarant who does not testify, and in that instance, the conflict between the hearsay rules and the guarantees of the Confrontation Clause must be resolved. See Smith v. State, No. 12-99-00066-CR, slip op. at 6-7, 2002 WL 508348, at *4 (Tex. App.-Tyler April 3, 2002, pet. filed ). If a hearsay statement is admissible under a "firmly rooted" exception to the hearsay rule, reliability, for purposes of the Confrontation Clause, can be inferred. Idaho v. Wright, 497 U.S. 805, 816, 110 S. Ct. 3139, 3147, 111 L. Ed. 2d 638 (1990). If evidence is admitted under a hearsay exception which cannot be considered "firmly rooted," the evidence is presumed inadmissible and must be excluded, absent a showing of particularized guarantees of trustworthiness. Id., 497 U.S. at 816-17, 110 S. Ct. at 3147.

The trial court admitted Glenn's statements to Deputy Moore under Texas Rule of Evidence 803(24) as an exception to hearsay, and the State contends that Glenn's out of court statements to the other witnesses were also admissible under the same rule. Rule 803(24) provides that a statement against the declarant's penal interest may be admissible if corroborating circumstances clearly indicate the statement's reliability. See Tex. R. Evid. 803(24). In order for a declaration against interest to be admissible under Rule 803(24), the statement must be self-inculpatory with corroborating circumstances to indicate the trustworthiness of the statements. See Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999). An admission against the declarant's penal interest may be admissible against a co-defendant so long as it is sufficiently against the declarant's own interest to be reliable. See id.

In Lilly v. Virginia, the Supreme Court of the United States distinguished a confession made by an accomplice which inculpates a co-defendant from a statement against the declarant's own interest alone and held that the former is not within a "firmly rooted" exception to the hearsay rule. See Lilly, 527 U.S. at 134, 119 S. Ct. at 1899. The Texas Court of Criminal Appeals has since held that a statement against penal interest made to a friend or acquaintance which implicates the declarant and the defendant equally is a firmly rooted exception to the hearsay rule. See Dewberry, 4 S.W.3d at 753. The court of criminal appeals revisited the issue in Guidry v. State, and held that a statement against penal interest which shifts blame from the declarant to the defendant, is not admissible under Rule 803(24). Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999).

Glenn's Hearsay Statements  

Harris County Sheriff's Deputy Harold Moore testified that in the spring of 2000, he was working as security officer for a group of inmates including Glenn. Deputy Moore overheard Glenn discussing the murder with the other inmates and asked Glenn whether he had been involved in the shooting. Glenn responded that he had been, and Deputy Moore told Glenn that Tony was his godson. Later, Glenn told Deputy Moore that on the day of the murder, he was driving, and Appellant was riding with him. Glenn said Tony cut him off, and then Appellant had a verbal confrontation with Tony as the two vehicles continued to drive alongside one another for three or four blocks. Glenn said that when he stopped at a red light, he leaned down to adjust the radio and heard a gunshot. Glenn said he looked up to see that Appellant had shot Tony, and he sped away and did not return. Glenn told Deputy Moore that he (Glenn) wanted to fight Tony, but he did not know that Appellant was going to shoot Tony. Also, Glenn told Deputy Moore that he wanted to apologize to Tony's parents, and Deputy Moore described Glenn's demeanor as "remorseful."

James Chaney ("Chaney") testified that he was in the Harris County jail in October of 1999. Chaney heard Glenn talking about a murder and asked if it was the "Northshore murder." Glenn responded affirmatively and then shared his concerns about the case against him and his brother with Chaney. Glenn told Chaney that the weapon had not been recovered but that he had left a box of bullets in the car. Glenn said the authorities did not have an accurate description of the car. Glenn told Chaney that when he heard that a witness had seen an elementary school honor student sticker on the car, he removed the sticker and washed the car. Chaney testified that Glenn "just wanted to make sure that nobody could put anything on him." Glenn asked Chaney whether he knew if the fact that a bullet hit glass before hitting the victim affected ballistics evidence, and he asked whether Chaney believed that the authorities could prove the case against him. Glenn told Chaney that he and Appellant had agreed not to talk to the police. Glenn told Chaney that he wanted to apologize to Tony's family. Finally, Glenn told Chaney that he believed that "Willie" had "snitched" on him.

Willie Cater ("Cater") testified that he saw Glenn in jail some time after the Brown brothers were arrested for the murder. Glenn accused Cater of being a "snitch" but admitted to Cater that he was driving when Appellant shot Tony. Glenn told Cater that he wanted to fight Tony but did not know that Appellant was going to shoot Tony and asked Cater to stress that fact to the authorities.

Analysis: Glenn's Statements to Chaney

Though he was asked several times, Chaney never testified that Glenn implicated Appellant as the shooter. Because Glenn's statements to Chaney implicated both Glenn and Appellant equally, they were sufficiently self-inculpatory of Glenn to be reliable. Dewberry, 4 S.W.3d at 753. We must next determine whether the statements were sufficiently corroborated to indicate their trustworthiness. We consider a number of factors including: (1) whether guilt of declarant is inconsistent with guilt of the defendant, (2) whether declarant was so situated that he might have committed the crime, (3) the timing of the declaration, (4) the spontaneity of the declaration, (5) the relationship between the declarant and the party to whom the statement is made, and (6) the existence of independent corroborative facts. Id. We note first that Glenn's guilt as a party is not inconsistent with Appellant's guilt as the principal. We note that Glenn made the hearsay statements in response to Chaney's casual inquiry after Chaney overheard Glenn talking about the murder with his fellow inmates, and the setting in which the statements were made was apparently genial. These factors tend to indicate the trustworthiness of the statements.

Next, we look to the record for independent corroboration of Glenn's statements to Chaney. Justin testified that the murder occurred in Northshore. Justin and Michelle Avalos, another witness, testified that the Protege had a Field Elementary School honor student bumper sticker on it on the day of the shooting, and Detective Allen Beall testified that when the Protege was found, the bumper sticker had been removed. Several other things that Glenn told Chaney were corroborated by the testimony of Detective Allen Beall: that a murder weapon was not recovered; that the bullet shattered the window of the truck before striking Tony; and that the description that the authorities had of the Protege was inaccurate. ⁽⁴⁾ That Glenn frequently drove the Protege was corroborated by the testimony of Cater and Detective Beall. Finally, Cater himself confirmed that he had "snitched" on the Brown brothers.

Considering this evidence along with the foregoing factors indicating the reliability of Glenn's out of court statements to Chaney, we conclude that Glenn's statements to Chaney were sufficiently reliable that they were admissible against Appellant under Rule 803(24). Consequently, Glenn's statements to Chaney fell within a firmly rooted exception to the hearsay rule. Dewberry, 4 S.W.3d at 753. Therefore, reliability, for purposes of the Confrontation Clause, can be inferred. Wright, 497 U.S. at 816, 110 S. Ct. at 3147.

Analysis: Glenn's Statements to Deputy Moore and Cater  

Glenn's hearsay statements to Deputy Moore and Cater were not so equally against both Glenn's and Appellant's interests as to reach the required level of reliability to be admissible under Rule 803(24). Guidry, 9 S.W.3d at 149. Glenn did admit to Deputy Moore and Cater that he was driving the car during the murder, but on the critical issue of who shot Tony, Glenn implicated Appellant alone. Glenn told both Deputy Moore and Cater that he only wanted to fight Tony. Furthermore, Glenn told Deputy Moore that he was surprised when Appellant shot Tony and that he wanted to apologize. "Granted both driver and triggerman bear potentially equal criminal liability, but the driver might be in a better bargaining position should he decide to cooperate with the State, and the driver might have a better chance at gaining sympathy from the jury." Id. Because Glenn's statements to Deputy Moore and Cater so clearly delineate his and Appellant's roles on the critical issue of who shot Tony, we hold that Glenn's statements to Deputy Moore and Cater which implicated Appellant were not admissible under Rule 803(24). Id.

For the same reasons, Glenn's statements to Deputy Moore and Cater do not possess sufficient inherent guarantees of trustworthiness to satisfy the Confrontation Clause. Where the Confrontation Clause has been implicated, we conduct harm analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure. Id. at 151. We must reverse the judgment of conviction unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. Proc. 44.2(a).

Deputy Moore's and Cater's testimony as to Glenn's hearsay statements were only a small part of the evidence against Appellant. Perhaps the strongest evidence against Appellant was evidence that Appellant implicated himself as the shooter. Cater testified that after seeing news reports about the murder, including a sketch of the passenger and a description of the Protege, he deduced that Appellant and Glenn had committed the crime. When he saw Appellant, Cater jokingly referred to him as "Killer," and Appellant thereafter described the offense in some detail to Cater. According to Cater, Appellant said he was riding with Glenn on Woodforest when they encountered the truck. Appellant said the driver of the truck was "mad dogging" them and giving them disparaging looks, so he told Glenn to "chase that fool." When the two vehicles came to a red light, Glenn wanted to get out and fight with Tony. Appellant showed Glenn a 9 mm handgun and told him, "No, you don't need to do it like that. I got this." As the traffic light turned green, Appellant pointed the gun at the driver's side window of Tony's truck and shot right through the middle of it. Appellant told Cater he did not know whether he had shot Tony but thought he had. Appellant said that after the shooting, Glenn "burned off." Cater testified that Appellant told him he melted the gun after the shooting, and he also testified that he heard that "Henry" had the gun.

Henry Gates ("Gates") testified that around the first of September of 1999, Appellant gave him a 9 mm Glock in exchange for fifty dollars in cash and some other item which Gates did not identify. Gates told the jury that it was a loan transaction, and the agreement was that Appellant could get the gun back for $200.00. Two weeks later, Appellant offered to give Gates $180.00 for the gun, but Gates refused. Another time Appellant offered to trade a Ruger .357 for the Glock, but again Gates refused. Later, on October 10, 1999, Appellant told Gates that there was "a body on the gun,"meaning it had been used in a killing. Appellant asked if Gates had heard about the murder and "hinted around" to Gates that he had done it. When Appellant got arrested, Gates threw the gun in the San Jacinto River, and it was never recovered.

There was direct testimonial evidence of Appellant's guilt. Justin identified Appellant as the shooter in a line-up and in court. Maria Galindo, an eyewitness to the shooting, identified Appellant in court as the man she saw stick his head out the window of the Protege toward Tony's truck before she heard a loud boom and saw smoke. There was also circumstantial evidence linking Appellant with the car through his brother. We conclude beyond a reasonable doubt, in light of the foregoing evidence and in light of the fact that Glenn was also convicted, that admission of Glenn's hearsay statements to Deputy Moore and Cater did not contribute to Appellant's conviction or punishment. Therefore, Appellant's fourth issue is overruled.

Likewise, Appellant's third issue is overruled. The prejudice which Appellant claims resulted from the trial court's refusal to sever is that Glenn's hearsay statements which incriminated Appellant were admitted into evidence, and Appellant could not cross-examine Glenn. Because we found that any error in the admission of Glenn's hearsay statements against Appellant was harmless, we cannot say that Appellant has met his burden of showing prejudice sufficient to require severance. The trial court did not abuse its discretion by denying Appellant's motion for severance.

  Prior Written Statements of Witnesses  

In his fifth issue, Appellant argues that the trial court erred by prohibiting him from cross-examining Justin on his prior written statements.

It appears from the record that the prosecutor asked the judge to prohibit Appellant from seeing Justin's prior written statements under Rule of Evidence 612 because Justin testified that he had not used the statements to refresh his memory. See Tex. R. Evid. 612. The statements should, of course, have been made available to Appellant under Rule 615 and under the Gaskin rule. See Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1962) (op. on reh'g). However, Appellant waived error on these grounds by failing to object to the trial court's ruling. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a). Therefore, Appellant's fifth issue is overruled.

  Hearsay

  In his sixth issue, Appellant contends that the trial court erred by overruling a hearsay objection to part of Detective Beall's testimony. When Detective Beall was asked whether Glenn's girlfriend provided information to the police that was consistent with what Cater had told the police, Glenn's counsel objected on the basis of hearsay. The objection was overruled. Appellant's counsel did not object.

If a co-defendant does not voice his own objection at trial, he has not preserved error. See Lerma v. State, 679 S.W.2d 488, 498 (Tex. Crim. App. [Panel Op.] 1982). A co-defendant may adopt the objection of his fellow defendant, but that adoption must be reflected in the record. See Woerner v. State, 576 S.W.2d 85, 86 (Tex. Crim. App. 1979). Appellant does not point out where, if anywhere, in the record he adopted Glenn's objection. Therefore, Appellant has not preserved error, if any. See Tex. R. App. P. 33.1. Accordingly, Appellant's sixth issue is overruled.

Proceeding with Eleven Jurors  

In his seventh issue, Appellant contends that the trial court erred by dismissing a juror during the punishment phase of the trial over his objection.

Not less than twelve jurors can render and return a verdict in a felony case. Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon Supp. 2002). However, after the trial of any felony case begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict. Id. The determination as to whether a juror is disabled is within the discretion of the trial court, and absent an abuse of that discretion, no reversible error will be found. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999). However, the exercise of the trial court's discretion is limited to situations where there exists some physical illness, mental condition, or emotional state which hinders one's ability to perform one's duties as a juror. Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990).

Before the trial resumed on the second day of the punishment phase, the trial judge stated for the record that a juror's mother had suffered a heart attack the previous day. The juror had come to the courthouse before trial was set to begin for the day and informed the judge that she needed to be with her mother who was scheduled for surgery that morning. The judge detained the juror in the jury room until he informed the parties that he intended to release the juror due to her disability. The judge recounted the juror's mother's very critical condition and noted that the juror "just cannot continue to serve [because] she must go and be with her mother." The judge said, "I now find that it is impossible for [the juror] to continue serving as a juror." Appellant was afforded an opportunity to question the juror before she was released but did not do so. Appellant's objection to proceeding with eleven jurors was overruled, and the trial continued.

Because the court's charge on punishment had not been read to the jury, it was within the trial judge's discretion to release the juror. Rojas v. State, 986 S.W.2d 241, 249 n. 7 (Tex. Crim. App. 1998). The judge was in the best position to evaluate the juror's mental condition and emotional state. Where Appellant declined to question the juror, and where the judge made detailed remarks on the record recounting the juror's circumstances and his finding that the juror was disabled, we cannot say that the trial judge abused his discretion by releasing the juror. Appellant's seventh issue is overruled.

  Ineffective Assistance of Counsel

In his eighth issue, Appellant argues that he was denied effective assistance of counsel during the punishment phase of the trial. Specifically, Appellant cites four instances where he believes his trial counsel's performance was deficient: (1) where an officer testified that Appellant was a suspect in a drive-by shooting, and counsel did not request a jury instruction on extraneous offenses; (2) where a gang expert testified to statements made to him by Appellant while Appellant was in jail, and counsel did not object; (3) where the same gang expert was allowed to testify about gang violence without linking Appellant to that violence, and counsel did not object; and (4) where the prosecutor argued for a life sentence, telling the jury that any other sentence would be "rol[ling] the dice" with the parole board, and counsel did not object.

The standard of review for ineffective assistance of counsel is enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Strickland standard applies to a determination of ineffective assistance of counsel in the punishment stage of trial as well as at guilt-innocence. See Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999). Under the Strickland test, Appellant must show that (1) counsel's performance was deficient, and (2) but for counsel's unprofessional errors, the result of the proceeding would have been different within reasonable probability. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Tong, 25 S.W.3d at 712. Appellant is required to establish his claims by a preponderance of the evidence. Id. 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. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Id. An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. Our review of counsel's representation is highly deferential. Tong, 25 S.W.3d at 712. We indulge a strong presumption that counsel's conduct falls within a wide range of reasonably professional representation. Id. We will consider each of counsel's alleged errors separately.

The Jury Instruction on Extraneous Offenses  

Appellant contends that his trial counsel was ineffective for failure to request a jury instruction that the State must prove extraneous offenses beyond a reasonable doubt after an undercover narcotics agent testified that Appellant was a suspect in a drive-by shooting. ⁽⁵⁾ Article 37.07, section 3(a) and (b) of the Texas Code of Criminal Procedure requires the trial court to instruct the jury at the punishment phase not to consider evidence of extraneous crimes or bad acts unless it is shown beyond a reasonable doubt that the defendant committed them. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) and (b) (Vernon Supp. 2002); Huizar v. State, 12 S.W.3d 479, 482-83 (Tex. Crim. App. 2000). In light of the fact that the State put on evidence of several extraneous offenses at the punishment phase, we will assume, without deciding, that counsel's performance was deficient for failure to request the jury instruction to which Appellant was entitled. Therefore, we must determine whether the result of the proceeding would have been different but for counsel's error.

When the trial court fails to instruct the jury on the reasonable doubt standard for extraneous offenses, we utilize the Almanza standard of review for jury charge error. Huizar, 12 S.W.3d at 484-85; Huizar v. State, 29 S.W.3d 249, 251 (Tex. App.-San Antonio 2000, pet. ref'd). Under Almanza, we review jury charge error according to whether the error was preserved at trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Unpreserved jury charge error does not require reversal unless it was so harmful that the defendant was denied a fair and impartial trial and suffered actual egregious harm. See Huizar, 29 S.W.3d at 251. The degree of harm must be evaluated "in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. (quoting Almanza, 686 S.W.2d at 171).

After reviewing the entire jury charge and the record of the trial as a whole, we do not believe that Appellant was denied a fair and impartial trial or suffered actual egregious harm by the omission of the jury instruction. Throughout both phases of the trial, Appellant's trial counsel thoroughly examined witnesses, objected to evidence and vigorously argued on Appellant's behalf. The fact that the jury assessed the maximum punishment cannot, by itself, show egregious harm. See Huizar, 29 S.W.3d at 251. Therefore, we cannot say that but for counsel's failure to request a jury instruction on the reasonable doubt standard for extraneous offenses, the result of the trial would have been different. See Id.  

The Gang Expert  

Appellant contends that trial counsel was ineffective for failure to object to the admissibility of oral statements made by him to Deputy Michael Squyres on the basis that the statements were inadmissible under the Texas Code of Criminal Procedure. Article 38.22, section 3 of the Code of Criminal Procedure prohibits the admission of unrecorded oral statements made by a defendant as a result of custodial interrogation. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon Supp. 2002). Specifically, Appellant avers that trial counsel should have objected on the basis of Article 38.22 when the following colloquy occurred:

Prosecutor: And, to your knowledge, is [Appellant] in a gang or has he been in a gang?

Squyres: By his own admission and by the tattoos that he has on his body, I would say, yes.  

Prior to that exchange, Deputy Squyres testified that he was working in his capacity as an officer of the Harris County Sheriff's Department's Disruptive Group Unit when he met two times with Appellant in the Harris County jail. Deputy Squyres explained that whenever the employees in the classification section of the jail come across an inmate who belongs to a particular gang or group, they advise the Disruptive Group Unit. Then someone from the Disruptive Group Unit will talk to the inmate individually to find out if the inmate is a member of a gang. Deputy Squyres told the jury that the main purpose of his unit is "to identify and to assist the people that belong to different disruptive groups, gangs." He explained that the purpose of this inquiry is to determine if the inmate needs special housing. The Deputy testified, "Our main concern is care, custody and control of the inmates within the jail."

The prohibitions of Article 38.22 do not apply to oral statements which are not the result of custodial interrogation. "Even express questioning is not interrogation if it is normally attendant to the legitimate processing of a suspect." 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 13.25 at 31 (2d ed. 2001). Nowhere in the record before us does it appear that Deputy Squyres interrogated Appellant about the crime with which he was charged. We hold that Appellant's answers to questions which served the legitimate purposes of care, control, and appropriate housing of inmates in the Harris County jail were not the result of custodial interrogation, and, thus, were not admitted as evidence in violation of Article 38.22. Cf. Cruse v. State, 882 S.W.2d 50, 51-52 (Tex. App.-Houston [14th Dist.] 1994, no pet.)(interview by pretrial services department employee to obtain information on which pretrial release decisions would be made did not implicate the Fifth or Sixth Amendments to the Constitution of the United States); Mayes v. State, 870 S.W.2d 695, 698 (Tex. App.-Beaumont 1994, no pet.)(question regarding employment status asked during routine booking procedures at county jail did not constitute custodial interrogation).

In order to successfully argue on appeal that trial counsel's failure to object to certain evidence constituted deficient performance, Appellant must show that the trial judge would have committed error in overruling such an objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). Because the trial court would not have erred by overruling an objection, based on Article 38.22, to the admissibility of Deputy Squyres' testimony that Appellant was a member of a gang, counsel's failure to make such an objection did not amount to deficient representation.

Appellant also contends that trial counsel was ineffective for failure to object to Deputy Squyres' testimony about gang violence because it did not comply with the requirements for admission of such evidence. Evidence of Appellant's membership in a gang is relevant and admissible as it relates to his character where it is shown that the gang engaged in violent and criminal behavior such that a rational jury could conclude that the gang's reputation is bad. See Beasley v. State, 902 S.W.2d 452, 456 (Tex. Crim. App. 1995). It is not necessary to link the accused to the bad acts or misconduct generally engaged in by gang members, so long as the jury is (1) provided with evidence of the defendant's gang membership, (2) provided with evidence of character and reputation of the gang, (3) not required to determine if the defendant committed the bad acts or misconduct and (4) only asked to consider reputation or character of the accused. Id. at 457. Our review of the record reveals that Deputy Squyres' testimony provided evidence of Appellant's gang membership in more than one gang by an analysis of Appellant's many tattoos; provided evidence of the bad reputation of both gangs; did not suggest that Appellant committed any of the bad acts or misconduct ascribed to the gangs; and was geared specifically, by the prosecutor's questions, to the ultimate issue of Appellant's character and reputation as a peaceful and law-abiding person. Again, because the trial court would not have erred had it overruled an objection to the gang violence testimony, trial counsel was not deficient for failure to make such an objection. See Vaughn, 931 S.W.2d at 566.

The Prosecutor's Final Argument  

Appellant contends that trial counsel was ineffective for failure to object to the prosecutor's impermissible final argument which asked the jury to consider parole law in assessing Appellant's sentence.

The prosecutor's reference to parole law came near the end of his argument. He said:

And how in anybody's right mind could you ever not give these guys life?

That's 30, that's 30, before they're eligible for parole. Okay.

No guarantee they're going to stay locked up. They got to do 30 flat, and they're eligible for parole. Then they come before a parole board, who will ask them questions, like, did you pay your debt to society? Are you, like rehabilitated and stuff?

Where a parole board will role [sic] the dice, gamble, and pray to keep their fingers crossed that we don't have to have another Anthony Gaston. That's what the parole board would do.

   Proper jury argument must fall into one of four general categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; and (4) plea for law enforcement. See Guidry, 9 S.W.3d at 154. The prosecutor's argument for a life sentence was in direct response to counsel's argument against a life sentence. A plea that a defendant be given a long sentence so that he will not soon be released on parole is a proper plea for law enforcement at the punishment phase of trial. See Damian v. State, 881 S.W.2d 102, 115-16 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). An attorney for the State may explain or summarize the law included in the court's charge. See Helleson v. State, 5 S.W.3d 393, 397 (Tex. App.-Fort Worth 1999, pet. ref'd). However, a prosecutor must avoid applying the parole law specifically to the defendant on trial. See Taylor v. State, 911 S.W.2d 906, 911 (Tex. App.-Fort Worth 1995, pet. ref'd). In this case, the prosecutor's arguments "[t]hat's 30 before they're eligible for parole" and "[t]hey got to do 30 flat, and they're eligible for parole" applied specifically to Appellant (and Glenn). We hold that this portion of the prosecutor's argument, applying the parole formula specifically to Appellant, was improper. See Perez v. State, 994 S.W.2d 233, 237 (Tex. App.-Waco 1999, no pet.). Furthermore, the prosecutor's arguments that the parole board would "role [sic] the dice, gamble, and pray to keep their fingers crossed that we don't have another Anthony Gaston" came close to crossing the line of impermissible argument by implicitly urging the jury to consider application of the parole law when assessing Appellant's sentence.

Trial counsel's performance was deficient for failure to object to the prosecutor's argument applying the parole formula specifically to Appellant. Therefore, we must next determine whether the outcome of the proceeding would have been different but for counsel's error. But cf. Valencia v. State, 966 S.W.2d 188, 191 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd)(holding that counsel's failure to object to prosecutor's argument, which invited consideration of parole law and supplied an erroneous formula for calculating parole eligibility, amounted to ineffective assistance of counsel as a matter of law).

Improper jury argument is error of nonconstitutional dimension. Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). A nonconstitutional error which does not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). "A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Determining harm under the standard for nonconstitutional error in improper argument cases requires balancing the following three factors: (1) the severity of the misconduct and its prejudicial effect, (2) curative measures, and (3) the certainty that the punishment assessed would be the same absent the misconduct. See Martinez, 17 S.W.3d at 692-693.

Because the impermissible arguments constituted only a small part of the prosecutor's argument as a whole, the severity of the misconduct was mild. We note that because there was neither an objection to the prosecutor's argument nor a request for an instruction to disregard, there were no curative measures taken by the trial court. Furthermore, the court specifically instructed the jury that although the jury charge advised them of the operation and effect of parole law, the jury was not to consider the manner in which the parole law might be applied to Appellant. We presume the jury followed the court's instruction in the absence of evidence to the contrary. See Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).

We next consider whether the punishment assessed would have been the same absent the misconduct. When analyzing whether a nonconstitutional error caused harm requiring reversal, we must review the entire record to determine whether the error substantially influenced the verdict. McGowen v. State, 25 S.W.3d 741, 745 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd); Rudd v. State, 921 S.W.2d 370, 372 (Tex. App.-Texarkana 1996, pet. ref'd). Overwhelming evidence of the defendant's guilt is a variable that we may consider in determining whether improper prosecutorial jury argument is harmless. Rudd, 921 S.W.2d at 372. The evidence against Appellant, as recounted above, was overwhelming, and the nature of the offense was truly senseless. Perhaps most importantly to our determination, the prosecutor did not distinguish between Appellant and Glenn in his argument. The prosecutor argued for a life sentence for "these guys," and the jury sentenced Glenn, an habitual offender, to thirty-five years. It would be illogical for us to conclude that the jury disregarded the improper argument and abided by the court's instructions when assessing Glenn's sentence but was unable to do so when assessing Appellant's sentence. Therefore, we conclude that the prosecutor's improper argument had no effect on the punishment assessed. Accordingly, Appellant's eighth issue is overruled.

The judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered June 18, 2002.

Panel consisted of Worthen, J., and Griffith, J.  

(DO NOT PUBLISH)

1.

Justin estimated the distance to be three or four miles, but the actual distance is unclear from the record.

2.

Appellant recites in his statement of facts pertinent to this issue that he based his pretrial motion for severance on antagonistic defenses. However, Appellant's brief does not "contain a clear and concise argument for the contentions made, with appropriate citations to authorities" for this proposition. Tex. R. App. P. 38.1(h). Therefore, we do not address this ground for severance.

3.

Appellant also alleges hearsay in the prosecutor's opening statement. However, Appellant has not presented this issue for our review by appropriate argument and authorities. Tex. R. App. P. 38.1(h).

4.

Justin had told the police that the car involved in the shooting was dark green, but Glenn's girlfriend's Mazda Protege was black.

5.

The State suggests that the drive-by shooting to which the officer referred was the murder of Tony-the charged offense. However, because this is not clear from the record, we cannot so assume.