Kenneth Vaden v. State

NUMBER 13-13-00157-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KENNETH VADEN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
A jury convicted appellant Kenneth Vaden of robbery, a second-degree felony.
See TEX. PENAL CODE ANN. § 29.02 (West 2011). After Vaden entered a plea of true to
an enhancement paragraph, the jury assessed punishment at forty years’ confinement in
the Institutional Division of the Texas Department of Criminal Justice. By four issues,
Vaden contends that: (1) the evidence is insufficient to sustain his conviction for
robbery; (2) the evidence is insufficient to sustain an enhancement from a second-degree
felony to a habitual felony offender; (3) the State made an improper jury argument at the
punishment hearing; and (4) counsel provided ineffective assistance. We affirm.
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, Vaden contends that the evidence is insufficient to sustain his
robbery conviction. 1 He specifically challenges the sufficiency of the evidence to
establish whether he committed theft of money through threats.
A. Standard of Review and Applicable Law
In order to determine if the evidence is sufficient, we review all of the evidence in
the light most favorable to the verdict and determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). This “standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Padilla
v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (quoting Jackson, 443 U.S. at 319).
A person commits robbery, an assaultive offense, if, “in the course of committing
theft as defined in Chapter 31 and with intent to obtain or maintain control of the property,
he: . . . (2) intentionally or knowingly threatens or places another in fear of imminent
bodily injury or death.” TEX. PENAL CODE ANN. § 29.02(a); see Ex parte Denton, 399
S.W.3d 540, 546 (Tex. Crim. App. 2013); Jones v. State, 323 S.W.3d 885, 889 (Tex.
1
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
2
Crim. App. 2010). A person commits theft “if he unlawfully appropriates property with
intent to deprive the owner of property.” TEX. PENAL CODE ANN. § 31.03(a) (West Supp.
2013). And when the defendant uses a weapon, it is sufficient for robbery by threat or
fear to show that the defendant caused his victim to believe that he had a functional
weapon. See Cranford v. State, 377 S.W.2d 957, 959 (Tex. Crim. App. 1964); Barehill v.
State, 740 S.W.2d 572, 574 (Tex. App.—Houston [1st Dist.] 1987, no pet.); Rose v. State,
672 S.W.2d 639, 640 (Tex. App.—Fort Worth 1984, pet. ref’d).
B. Discussion
Vaden was charged with robbery. The indictment specifically alleged that “while
in the course of committing theft of property and with intent to obtain or maintain control of
said property, [Vaden did] intentionally or knowingly threaten or place Kimberly Miller in
fear of imminent bodily injury or death.” See TEX. PENAL CODE ANN. § 29.02(a).
Miller testified that Vaden approached her and ordered her to give him the phone
that she was holding. According to Miller, Vaden lifted up his shirt to reveal the butt of a
gun sticking out of his pants. To Miller, the gun looked like a stainless steel revolver.
Vaden then demanded, “Give me the phone or I’m gonna shoot you with this pistol.”
Miller questioned Vaden, “So, you’re telling me, if I don’t give you this phone, you’re
gonna shoot me with that gun?” Vaden replied, “Yes, Ma’am.” In response, Miller said,
“[N]o, I’m not giving you my phone.” According to Miller, Vaden told her, “I’m a drug
addict and I need cash now, give me the phone.” Miller responded, “[N]o,” and “you’re
not getting my phone but I think I have some cash.” Vaden said that he wanted $200.
Miller testified that she gave Vaden the money, jumped into her truck, and drove off as he
was looking down at the money. Miller testified that she was afraid, and she later told an
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officer that she thought she was going to die.
Vaden also testified at trial. According to Vaden’s testimony, he approached
Miller, explained that he had not eaten for a while, and asked her for a couple of dollars.
Miller told him he could not have her cell phone, to which he responded that he did not
want it. Vaden testified that as he started to walk away, Miller reached into her back
pocket, gave him some folded money, and said, “just go.” Vaden walked away and saw
that Miller had given him two $100 bills.
Vaden argues that the “sole issue in this case is whether he committed theft of
money through threats or whether he received a gift of money from [Kimberly] Miller.”
Vaden claims that “the [S]tate had to prove that [he] had the means to create a threat or
fear in Miller in order to control the money and failed to prove this when it could not
forensically tie Vaden to the toy gun or the vehicle.”
Viewing the evidence in the light most favorable to the verdict, we conclude that a
rational trier of fact could have found, beyond a reasonable doubt, that Vaden
intentionally or knowingly threatened Miller with a gun and that Miller thought the gun was
functional and was in fear of imminent bodily injury or death. See Jackson, 443 U.S. at
319; Cranford, 377 S.W.2d at 959; Barehill, 740 S.W.2d at 574; Rose, 672 S.W.2d at 640;
see also TEX. PENAL CODE ANN. § 29.02(a). And resolving any conflicts in the testimony,
weighing the evidence, and drawing reasonable inferences from the basic facts, the jury
could have determined that Vaden intended to deprive Miller of money through this threat.
See Padilla, 326 S.W.3d at 200; see also TEX. PENAL CODE ANN. §§ 29.02(a), 31.03(a).
Thus, we conclude that the evidence was sufficient to sustain Vaden’s robbery
conviction. We overrule the first issue.
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II. HABITUAL FELONY ENHANCEMENT
In his second issue, Vaden argues that he did not receive a valid sentence
because (1) the evidence was not sufficient to sustain the enhancement from a
second-degree felony to an habitual-felony offender; (2) his 1986 conviction for
unauthorized use of a vehicle (UUV) could not be used for enhancement because that
offense was downgraded to a state-jail felony in 1994; (3) his 1980 conviction for robbery
could not be used for enhancement because it had been used to enhance his 1986
conviction; and (4) there was error in the punishment charge that caused egregious harm.
A. Sufficiency of the Evidence
Vaden argues that the State failed to prove beyond a reasonable doubt that the
two prior convictions, one in 1980 and one in 1989, were those of Vaden. Yet when a
defendant pleads true to enhancement allegations, the State is relieved of its burden to
prove them because a plea of true constitutes evidence and sufficient proof to support
those allegations. Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984); Wise v.
State, 394 S.W.3d 594, 598 (Tex. App.—Dallas 2012, no pet.); Torres v. State, 391
S.W.3d 179, 184 (Tex. App.—Houston [1st Dist.] 2912, pet. ref’d); see also Ex parte Rich,
194 S.W.3d 508, 513 (Tex. Crim. App. 2006) (reciting the general rule that a plea of true
to an enhancement paragraph relieves the State of its burden to prove a prior conviction
alleged for enhancement and forfeits the defendant’s right to appeal the sufficiency of
evidence to prove the prior conviction). At the beginning of the punishment phase of his
trial, Vaden pleaded true to both enhancement allegations. His pleas of true constituted
sufficient proof to support the allegations. See Wilson, 671 S.W.2d at 526; Wise, 394
S.W.3d at 598; Torres, 391 S.W.3d at 184; see also Ex parte Rich, 194 S.W.3d at 513.
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This argument fails.
B. Prior Convictions
1. The 1986 UUV Conviction
Vaden asserts that his 1986 conviction for unauthorized use of a vehicle (UUV)
could not be used for enhancement purposes because that offense was downgraded to a
state-jail felony in 1994. However, if a prior conviction was for a qualifying third-degree
felony at the time the crime was committed, it may be used to enhance a subsequent
offense, even if the prior criminal offense was later amended and reclassified such that it
would presently be a non-qualifying state jail felony. See State v. Wooldridge, 237
S.W.3d 714, 716–17 (Tex. Crim. App. 2007) (citing Castaneda v. State, 135 S.W.3d 719,
724 (Tex. App.—Dallas 2003, no pet.)). Relevant to this case, the offense of
unauthorized use of a vehicle was originally a third-degree felony, but was downgraded to
a state-jail felony in 1994. See TEX. PENAL CODE ANN. § 31.07(b) (West 2011) (setting
out in its historical note that the 1994 amendment substituted “a state jail felony” for “a
felony of the third degree”). So at the time of Vaden’s 1986 conviction, unauthorized use
of a vehicle was still a third-degree felony, which the State could subsequently use for
enhancement purposes. We are not persuaded by this argument.
2. The 1980 Robbery Conviction
Vaden also argues that his 1980 conviction for robbery could not have been used
for enhancement because it had been used to enhance his 1986 conviction. Although
the evidence establishes that Vaden’s 1986 sentence was enhanced, it does not specify
what prior conviction was used for enhancement. Nonetheless, even assuming that the
1980 robbery conviction was used to enhance the 1986 UUV sentence, the penal code
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provides that “[t]he use of a conviction for enhancement purposes shall not preclude the
subsequent use of such conviction for enhancement purposes.” TEX. PENAL CODE ANN.
§ 12.46 (West 2011). Specifically, the court of criminal appeals has approved such
subsequent use with regard to a habitual offender. See Haines v. State, 623 S.W.2d
367, 369–70 (Tex. Crim. App. 1981) (en banc); see also Barnes v. State, 70 S.W.3d 294,
303 (Tex. App.—Fort Worth 2002, pet. ref’d) (approving such use in response to an ex
post facto challenge). So this argument has no merit.
C. Charge Error
Finally, Vaden contends that there was error in the punishment charge that caused
egregious harm. He claims that paragraph 2 of the punishment charge failed to provide
a complete instruction to the jury if it found that the State failed to prove the
enhancements beyond a reasonable doubt.
In analyzing a jury charge issue, the first inquiry is whether error exists in the
charge submitted to the jury. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)
(en banc); Cueva v. State, 339 S.W.3d 839, 848 (Tex. App.—Corpus Christi 2011, pet.
ref’d). If error is found, and if the defendant failed to object, as in this case, the reviewing
court should only reverse if the record shows egregious harm, or harm that affects the
very basis of the case, deprives the defendant of a valuable right, or vitally affects a
defensive theory. See Ngo, 175 S.W.3d at 750 (citing Almanza v. State, 686 S.W.2d
157, 172 (Tex. Crim. App. 1985) (op. on reh’g) (en banc)); Cueva, 339 S.W.3d at 848.
To determine whether a defendant suffered egregious harm, the reviewing court should
assess the degree of harm in light of (1) the entire jury charge, (2) the state of the
evidence including contested issues, (3) the arguments of counsel, and (4) any other
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relevant information in the record. See Gelinas v. State, 398 S.W.3d 703, 705–06 (Tex.
Crim. App. 2013) (citing Almanza, 686 S.W.2d at 171); Cueva, 339 S.W.3d at 848.
In this case, the court’s punishment charge began with the following: “You have
found the Defendant, Kenneth Vaden, guilty of Count 1: Robbery, a felony of the
Second Degree. In addition[,] the indictment alleges for enhancement purposes that the
defendant has previously been convicted of two felonies, . . . . To these allegations the
Defendant has plead[ed] true.” The court’s instructions followed.
In paragraph 1, the court instructed that,
if you find beyond a reasonable doubt that the allegations of the
enhancement paragraph above is [sic] “TRUE,” you will assess the
punishment if it be shown on the trial on any felony that the Defendant has
previously been convicted of two felony offenses, and the second previous
felony conviction is for an offense that occurred after the first previous
conviction of the felony on trial he shall be punished by confinement in the
institutional Division of the Texas Department of Criminal Justice for Life, or
for any term of not more than 99 years or less than 25 years.
Paragraph 2 of the court’s instructions read, “If you find the allegations of the
above enhancement paragraph is [sic] ‘NOT TRUE,’ or if you have a reasonable doubt
thereof, you will assess the punishment of the Defendant at confinement in the Texas
Department of Criminal Justice.” This paragraph appears to be incomplete because it
does not specifically set out a term of confinement or amount of fine if the jury finds
allegations of the enhancement paragraph to be “not true.” Yet the court continued its
instruction in paragraph 3 setting out the term of punishment for a second-degree felony
as follows:
An individual adjudged guilty of a felony of the second degree shall be
punished by confinement in the Institutional Division of the Texas
Department of Criminal Justice for any term of not less than 2 years or not
more than 20 years. In addition to imprisonment, an individual adjudged
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guilt of a felony of the first degree may be punished by a fine not to exceed
$10,000.00.
When read as a whole, the charge informed the jury that Vaden had been
convicted of a second-degree felony. It also fully instructed the jury on the range of
punishment for a second-degree felony, which would have been applicable had the jury
found the allegations in the enhancement paragraph “not true.” The charge also
instructed the jury on the range of punishment to assess if it found that the allegations in
the enhancement paragraph were true. We cannot conclude that error existed in the
charge submitted to the jury—that the punishment charge failed to provide a complete
instruction to the jury if it found that the State failed to prove the enhancements beyond a
reasonable doubt. See Ngo, 175 S.W.3d at 743. Nonetheless, even assuming error,
we cannot conclude that the error caused egregious harm. See id. Considering the
entire charge and Vaden’s pleas of true to the enhancements, we conclude that Vaden
was subject to punishment under the range set out in paragraph 1, the punishment range
considered by the jury in assessing forty years’ imprisonment. See Gelinas, 398 S.W.3d
at 705–06; Cueva, 339 S.W.3d at 848. We are not persuaded by Vaden’s charge-error
argument.
D. Summary
Because Vaden’s arguments in support of this issue have no merit, we overrule his
second issue.
III. IMPROPER JURY ARGUMENT
By his third issue, Vaden contends that the State committed reversible error when
the prosecutor argued during closing at the punishment hearing that, if the jury imposed
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the minimum sentence of twenty-five years, Vaden would be eligible for parole in twelve
and one-half years. However, failure to object to jury argument at trial forfeits the right to
raise the issue on appeal. TEX. R. APP. P. 33.1; Threadgill v. State, 146 S.W.3d 654,
667, 670 (Tex. Crim. App. 2004) (en banc); Simpson v. State, 119 S.W.3d 262, 268 (Tex.
Crim. App. 2003); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc);
see also Helleson v. State, 5 S.W.3d 393, 398 (Tex. App.—Fort Worth 1999, pet. ref’d)
(waiving the right to challenge the prosecutor’s argument about parole law on appeal
when the defendant failed to object in the trial court). Because Vaden’s trial counsel did
not object to the prosecutor’s argument concerning parole eligibility, he waived error.
See TEX. R. APP. P. 33.1; Threadgill, 146 S.W.3d at 667, 670. We overrule Vaden’s third
issue.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
A claim that trial counsel was ineffective is generally analyzed under the familiar
standard set forth in Strickland v. Washington. 466 U.S. 668, 687 (1984). To obtain a
reversal of a conviction for ineffective assistance of counsel, a defendant must show that:
(1) counsel's performance fell below an objective standard of reasonableness and (2)
counsel's deficient performance prejudiced the defense, resulting in an unreliable or
fundamentally unfair outcome of the proceeding. Id. The court of criminal appeals has
recently explained this standard as follows:
For a claim of ineffective assistance of counsel to succeed, the record must
demonstrate both deficient performance by counsel and prejudice suffered
by the defendant. An ineffective-assistance claim must be firmly founded
in the record and the record must affirmatively demonstrate the meritorious
nature of the claim. Direct appeal is usually an inadequate vehicle for
raising such a claim because the record is generally undeveloped. This
statement is true with regard to the deficient performance prong of the
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inquiry, when counsel’s reasons for failing to do something do not appear in
the record. Trial counsel should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective. If trial counsel
is not given that opportunity, then the appellate court should not find
deficient performance unless the challenged conduct was so outrageous
that no competent attorney would have engaged in it.
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012) (citations omitted).
Vaden urges this Court to apply the standard used in Ex parte Duffy, which does
not require that the defendant show that he suffered prejudice by trial counsel’s
representation at the punishment phase of trial. See 607 S.W.2d 507, 516 (Tex. Crim.
App. 1980) (en banc). However, the court of criminal appeals has expressly overruled
Duffy on this matter, as conflicting with federal constitutional law. Hernandez v. State,
988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (en banc) (“[W]e perceive no valid reason
why [the prejudice prong of] Strickland cannot apply, or why a different rule should apply,
to noncapital sentencing proceedings.”). So our analysis of Vaden’s
ineffective-assistance claim includes Strickland’s deficiency and prejudice prongs. See
Menefield, 363 S.W.3d at 592–93; see also Strickland, 466 U.S. at 687.
Vaden generally complains of the following: (1) counsel conducted only a cursory
voir dire and failed to ask questions of venirepersons number fifteen, twenty-four,
twenty-five, and twenty-nine, who had been affected by theft, burglary, and robbery; (2)
counsel failed to object to the court’s statement that Vaden had the right not to testify
against himself instead of merely stating that Vaden had the right to not testify; (3)
counsel failed to object to the parole argument by the State; and (4) counsel failed to seek
out, interview, or identify potential witnesses who could serve to disprove any evidence of
guilt and failed to call any mitigating witness during the punishment phase of trial. Citing
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Brooks v. Texas, Vaden argues that counsel’s conduct or failure to act “is to be
ineffective, if not incompetent, where the consequences [are] that the only viable defense
available to the accused is not advanced.” See 381 F.2d 619, 625 (5th Cir. 1967).
We conclude that Vaden has not met his burden under Strickland. The present
record is insufficiently developed to show (1) that trial counsel did not make all of the
complained-of actions in accordance with a reasonable trial strategy, or (2) that witnesses
were even available to testify on Vaden’s behalf. Counsel’s reasons for failing to act in
this regard do not appear in the record, and we cannot conclude that the challenged
conduct was so outrageous that no competent attorney would have engaged in it. See
Menefield, 363 S.W.3d at 593. Vaden has not demonstrated deficient performance by
counsel. See id; see also Strickland, 466 U.S. at 687. And Vaden has not established
that he has suffered prejudice because of counsel’s actions or failure to act. See
Menefield, 363 S.W.3d at 592; see also Strickland, 466 U.S. at 687. We overrule
Vaden’s fourth issue.
V. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 19th
day of December, 2013.
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