Eligah Darnell v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00203-CR
ELIGAH DARNELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Eligah Darnell brings thirty-seven points2 challenging his conviction for
failure to comply with the sex offender registration requirements by failing to
notify the Fort Worth police department at least seven days before moving to a
1
See Tex. R. App. P. 47.4.
2
Because appellant raises so many points, we will only discuss relevant
background facts within our discussion of each point.
new address. See Tex. Code Crim. Proc. Ann. arts. 62.051(a) (West Supp.
2011), .102(a) (West 2006). We affirm.
Speedy Trial
In his first point, appellant contends that his speedy trial rights under the
United States and Texas Constitutions were violated.
The Sixth Amendment to the United States Constitution and article 1,
section 10 of the Texas Constitution guarantee an accused the right to a speedy
trial. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Murphy v. State, 280
S.W.3d 445, 450 (Tex. App.––Fort Worth 2009, pet. ref’d). Texas courts use the
same test to analyze claims of a denial of this right under the federal and state
constitutions. Murphy, 280 S.W.3d at 450. Thus, we analyze speedy trial claims
on an ad hoc basis by weighing and then balancing the four Barker v. Wingo
factors: 1) length of the delay, 2) reason for the delay, 3) assertion of the right,
and 4) prejudice to the accused. 407 U.S. 514, 530, 92 S. Ct. 2182, 2192
(1972); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999); Murphy,
280 S.W.3d at 450. While the State has the burden of justifying the length of
delay, the defendant has the burden of proving the assertion of the right and
showing prejudice. Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Murphy, 280
S.W.3d at 450. The defendant’s burden of proof on the latter two factors varies
inversely with the State’s degree of culpability for the delay. Doggett v. United
States, 505 U.S. 647, 657, 112 S. Ct. 2686, 2693 (1992); Murphy, 280 S.W.3d at
450. Thus, the greater the State’s bad faith or official negligence and the longer
2
its actions delay a trial, the less a defendant must show actual prejudice or prove
diligence in asserting his right to a speedy trial. Cantu v. State, 253 S.W.3d 273,
280–81 (Tex. Crim. App. 2008); Murphy, 280 S.W.3d at 450–51.
The Barker test is triggered by a delay that is unreasonable enough to be
―presumptively prejudicial.‖ Doggett, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686,
2691 n.1; Murphy, 280 S.W.3d at 451. There is no set time element that triggers
the analysis, but the court of criminal appeals has held that a delay of four
months is not sufficient while a seventeen-month delay is. Phillips v. State, 650
S.W.2d 396, 399 (Tex. Crim. App. 1983); Pete v. State, 501 S.W.2d 683, 687
(Tex. Crim. App. 1973), cert. denied, 415 U.S. 959 (1974); Murphy, 280 S.W.3d
at 451. Once the Barker test is triggered, courts must analyze the speedy trial
claim by first weighing the strength of each of the Barker factors and then
balancing their relative weights in light of the conduct of both the prosecution and
the defendant. Barker, 407 U.S. at 530, 92 S. Ct. at 2192; Murphy, 280 S.W.3d
at 451. No one factor is either a necessary or sufficient condition to the finding of
a deprivation of the speedy trial right; instead, the four factors are related and
must be considered together along with any other relevant circumstances.
Barker, 407 U.S. at 530, 92 S. Ct. at 2192; Murphy, 280 S.W.3d at 451. Thus,
courts must apply the Barker balancing test with common sense and sensitivity to
ensure that charges are dismissed only when the evidence shows that a
defendant’s actual and asserted interest in a speedy trial has been infringed.
Murphy, 280 S.W.3d at 451; see Barker, 407 U.S. at 534–35, 92 S. Ct. at 2192.
3
In September 2006, appellant was indicted in the 213th District Court in
cause number 1037163D for failing to notify the Fort Worth police department
within seven days after moving. After appellant appealed the denial of a pretrial
motion to dismiss to this court,3 the State reindicted him in the 432nd District
Court in cause number 1177732R on October 26, 2009. Appellant filed a speedy
trial motion in cause number 1177732R on November 10, 2009. 4 The State
reindicted appellant a second time in cause number 1197286R on April 22,
2010.5 In a hearing on appellant’s pretrial motions in that cause number, he
testified that he was arrested on September 14, 2006 and detained until October
4, 2006, when he was released on bond. He was rearrested on June 29, 2007
and incarcerated for another eleven months with a hold on his bond.6 According
to appellant, he was prejudiced because a key witness––whom he admitted on
cross-examination was Pete Gilfeather––had passed away in 2009. But
3
Appellant filed his notice of appeal on June 27, 2008; we affirmed the
conviction on April 9, 2009, and the mandate from this court’s opinion was issued
on October 16, 2009.
4
Appellant had filed a prior pro se Motion For Speedy Trial in cause
number 1037163D on October 5, 2007, while he was represented by counsel. It
appears that the trial court did not rule on this motion.
5
The record does not indicate why the case was reindicted for a second
time, but the third indictment adds a paragraph indicating that the original
indictment in cause number 1037163D was filed September 18, 2006 and was
pending as of April 23, 2010.
6
The trial court reminded appellant that it could take judicial notice of its
file. The record in cause number 1037163D shows that on June 2, 2008, the trial
court set appellant’s bond at $25,000.
4
appellant also admitted on cross that Gilfeather did not have any information as
to whether appellant had been living at a certain place in 2006 or whether he had
fulfilled his reporting requirements with the Fort Worth police department.
Appellant mentioned something about Gilfeather’s having previously presided
over a misdemeanor unlawful carrying of a weapon case that was erroneously
enhanced to a felony, but he never clearly explained why Gilfeather’s testimony
was necessary to his defense.7
The case against appellant had been pending for a little over a year when
he filed his first motion for speedy trial and over three years when he filed his
second motion. Although the State did not articulate a reason for the delay, at
least part of the delay––from June 2008 to October 2009––is attributable to
appellant’s appeal of the trial court’s denial of his motion to dismiss. In addition,
the record shows that two of appellant’s appointed lawyers filed motions to
withdraw on the grounds that appellant’s actions had rendered representation
―unreasonably difficult.‖ One of the lawyers said that appellant had requested
that he file inappropriate pretrial writ applications and threatened him with the
filing of a grievance if he refused to file those writ applications. By the date of
trial, appellant was represented by his third appointed counsel8 and had
7
The record contains a copy of a judgment in an unlawful carrying of a
weapon case that was signed by Judge Gilfeather sentencing appellant to two
hundred days’ community supervision.
8
Appellant had also been appointed a fourth counsel for standby purposes
during pretrial.
5
represented himself pro se for a time. Even while represented by counsel,
appellant continued to file numerous pro se motions.
As prejudice, appellant cited Gilfeather’s death while this case was
pending. But appellant failed to articulate why Gilfeather was important to the
pending case. The State introduced evidence at punishment showing that
appellant’s probation for the unlawful carrying of a weapon at a school conviction
was revoked in 1989. Gilfeather was not the trial judge or appellant’s counsel for
the revocation. Moreover, the unlawful carrying of a weapon offense was
mentioned by the State only in passing during closing and in conjunction with
several other prior offenses, including the indecency with a child conviction for
which appellant was subject to registration.
Appellant has presented no evidence of prejudice as a result of the delay,
other than the delay itself, a large part of which was attributable to appellant’s
own actions.9 Thus, while some of the Barker factors, such as the length of
delay, may weigh in appellant’s favor, we cannot conclude that the evidence
shows that his rights to a speedy trial were violated such that he is entitled to
relief.10 We overrule his first point.
9
In a postsubmission brief, appellant claimed that he was prejudiced
because the State would not have been able to use statements he made to his
bond caseload officer against him had he been tried earlier. However, as shown
below, the State had ample other evidence upon which to convict appellant.
10
Appellant complains within his first point that he was held without a bond
he could afford for more than ninety days after the State announced ready. See
Tex. Code Crim. Proc. Ann. art. 17.151 (West Supp. 2011). However, this court
6
Motion to Quash
In his second and third points, appellant claims that the trial court erred by
denying his motion to quash and ―Collateral Estoppel Writ of Habeas Corpus.‖
Although the motions are not exactly the same as the motion that was at issue in
this court’s prior opinion in Ex parte Darnell, No. 02-08-00229-CR, 2009 WL
976021, at *1 (Tex. App.––Fort Worth Apr. 9, 2009, pet. ref’d) (mem. op., not
designated for publication), both motions raise the same arguments that this
court has already considered and rejected: that the prosecution against
appellant is barred because (a) the issue of whether his indecency with a child
conviction is a ―sexually violent offense‖ has already been litigated,11 (b)
subjecting him to the registration and reporting requirements constitutes
impermissible ex post facto punishment, and (c) according to appellant, he did
report when he was supposed to. See id. For the reasons set forth in our prior
opinion and because appellant is not entitled to a pretrial evidentiary hearing on
the merits of the charge pending against him, we conclude and hold that the trial
has previously addressed and rejected appellant’s complaint that the trial court
abused its discretion by denying him a reduction in bail. Ex parte Darnell, No.
02-08-00229-CR, 2009 WL 976021, at *1 & n.7 (Tex. App.––Fort Worth Apr. 9,
2009, pet. ref’d) (mem. op., not designated for publication).
11
Appellant couches part of this argument in terms of being eligible for
mandatory supervision parole; however, his argument is still that his indecency
conviction should be categorized based on a prior trial court’s decision in 1989
(of which there is no evidence) rather than the mandatory provision in article
62.001(6)(A) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann.
art. 62.001(6)(A) (West Supp. 2011); Ex parte Darnell, 2009 WL 976021, at *1.
7
court did not abuse its discretion by refusing to quash the indictment and dismiss
the case. Id.; see State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App.
1994) (op. on reh’g). We therefore overrule appellant’s second and third points.
Quashing of Appellant’s Subpoenas
Appellant claims in his fourth and fifth points that the trial court erred by
quashing subpoenas for Timmie White, who had represented appellant in his
prior indecency with a child conviction and an unlawful carrying of a weapon
conviction, and Stuart Jenkins, a parole officer from the Texas Department of
Criminal Justice.
Criminal defendants have a right to compulsory process for obtaining
witnesses. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Emenhiser v. State,
196 S.W.3d 915, 921 (Tex. App.––Fort Worth 2006, pet. ref’d). But the right to
compulsory process is not absolute; defendants have the right to secure only the
attendance of witnesses whose testimony would be both material and favorable
to the defense. Emenhiser, 196 S.W.3d at 921; see Coleman v. State, 966
S.W.2d 525, 527–28 (Tex. Crim. App. 1998). To exercise this right, the
defendant must make a plausible showing to the trial court, by sworn evidence or
agreed facts, that the witness’s testimony would be both material and favorable
to the defense. Coleman, 966 S.W.2d at 528; Emenhiser, 196 S.W.3d at 921.
The mere belief that a witness would support the defense’s case is insufficient to
establish materiality. Emenhiser, 196 S.W.3d at 921. Moreover, the right to
compulsory process is dependent upon an accused’s initiative, and the nature of
8
the right requires that its effective use be preceded by ―deliberate planning and
affirmative conduct‖ by the defendant. Id.
We review a complaint that the trial court improperly quashed a subpoena
for an abuse of discretion. Drew v. State, 743 S.W.2d 207, 225 n.11 (Tex. Crim.
App. 1987); Emenhiser, 196 S.W.3d at 921. Likewise, questions regarding
limitations on the right to compulsory process are within the trial court’s
discretion. Emenhiser, 196 S.W.3d at 921.
Appellant wanted to call White and Jenkins to testify about his theory that a
prior trial court had found that his indecency conviction was not classified as a
sexually violent offense under the mandatory supervision statute so that he could
not be charged with the failure to report offense. See Tex. Code Crim. Proc.
Ann. art. 62.001(6)(A) (West Supp. 2011). However, because this court has
already rejected these arguments in its opinion on appellant’s pretrial application
for writ of habeas corpus, we conclude and hold that the trial court did not abuse
its discretion by quashing the subpoenas because appellant did not show that
White’s and Jenkins’s testimony was material and favorable to him. See Ex
parte Darnell, 2009 WL 976021, at *1. Thus, we overrule appellant’s fourth and
fifth points.
Motion for New Trial
In his sixth point, appellant argues that the trial court erred by denying him
a hearing on his motion for new trial. Although appellant raised the issues of
9
ineffective assistance and the need for new evidence to prove his innocence, 12
he did not support his motion with an affidavit or unsworn declaration verifying
the matters he contends are not determinable from the record. Thus, the trial
court did not abuse its discretion by refusing to hold a hearing on appellant’s
motion for new trial. See Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim. App.
2009) (―Thus we require, as a prerequisite to a hearing when the grounds in the
motion are based on matters not already in the record, that the motion be
supported by an affidavit, either of the defendant or someone else, specifically
setting out the factual basis for the claim.‖); Bahm v. State, 219 S.W.3d 391,
393–94 (Tex. Crim. App. 2007). We overrule appellant’s sixth point.
Sufficiency of the Evidence
In his eighth and thirty-sixth points, appellant contends that the evidence is
insufficient to support his conviction and that he is actually innocent of the
indecency with a child conviction for which he was required to report.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
12
Appellant contends that SBC phone records, which were not introduced
at trial, would have shown that he made phone calls to his parole officer from
2800 Lena, the address at which he was supposed to be living; however, this
evidence does not conclusively prove that appellant was actually living at 2800
Lena at the time he made the phone calls.
10
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
We have already determined that appellant’s prior indecency conviction
was reportable. Ex parte Darnell, 2009 WL 976021, at *1. Here, the State
adduced evidence that although appellant had reported his address to the Fort
Worth police as 2800 Lena in Fort Worth, Detective Ufkes, a Fort Worth police
officer, visited the address twice in August 2006 and was unable to find
appellant. The second time Detective Ufkes went to the address, he spoke to
appellant’s sister, Teresa Wyatt, who lived there; she gave a sworn statement
saying that appellant did not live at 2800 Lena. Wyatt confirmed at trial that
appellant did not live at 2800 Lena and that he had never lived there but had
received mail there. Detective Tracy Tillerson, the officer to whom appellant was
supposed to report, testified that appellant did not inform her that he was living
anywhere other than 2800 Lena. According to the testimony of Kristen Ayala, a
probation officer to whom appellant reported when he was released on bond,
appellant told her that he had been living at 729 Glen Garden in Fort Worth since
April 2006. Even though appellant’s brother testified that appellant was living at
2800 Lena in 2006, the jury was entitled to disbelieve his testimony. See Tex.
Code Crim. Proc. Ann. art. 38.04 (West 1979); Brown v. State, 270 S.W.3d 564,
568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). The jury was
likewise entitled to believe Wyatt’s testimony that appellant had never lived at
2800 Lena even though she later admitted that on March 16, 2006, she had
11
signed a form for the Texas Department of Human Services verifying that
appellant was living at 2800 Lena. Thus, we conclude and hold that the evidence
is legally sufficient to uphold appellant’s conviction. We overrule appellant’s
eighth and thirty-sixth points. See State ex rel. Abbott v. Young, 265 S.W.3d
697, 706 (Tex. App.––Austin 2008, pet. denied) (distinguishing ―actual
innocence‖ in habeas context from sufficiency of the evidence in direct appeal
context).
Alleged Errors in Reporter’s Record
In his ninth point, appellant challenges what he claims are two errors in the
reporter’s record and asks this court to abate the appeal for a correction of the
reporter’s record.
Appellant claims that the following prosecutor’s statement during closing
argument was omitted: ―Sgt. Hensley told me he checked the TCIC[13] and found
that the defendant never worked at Whataburger.‖ The record before this court
shows that the prosecutor said the following: ―Defense counsel will have you
believe [appellant] was working. Sergeant Hensley knew that wasn’t true,
because there wasn’t anything from the Texas Workforce Commission. He
couldn’t find any employment. So I don’t know where this Whataburger is
coming from. He’s not working.‖ Sergeant Hensley was the Fugitive Unit Task
13
TCIC is a statewide criminal information database used by law
enforcement agencies. Peacock v. State, 77 S.W.3d 285, 287 (Tex. Crim. App.
2002).
12
Force officer who arrested appellant for the instant offense. When asked how he
went about finding someone with a pending warrant, he testified:
We get his information, his date of birth, his full name, any family
members, and then . . . before we leave, . . . we kind of put a packet
together. We run certain, like, Texas Workforce Commission, if
they’re working, we check addresses, we have crime analysts that
assist us with that kind of stuff.
Sergeant Hensley did not testify that appellant was not working; instead, he
testified that when he finally arrested appellant, he was at a barbecue restaurant
owned by a relative. Although the prosecutor’s statement as reflected in the
record appears to be an inaccurate statement of Sergeant Hensley’s testimony,
whether the prosecutor told the jury that Sergeant Hensley checked with TCIC or
the Texas Workforce Commission is irrelevant to whether appellant was actually
living at 2800 Lena. It is undisputed that appellant was not present at 2800 Lena
when a Fort Worth police officer went looking for him in August 2006; whether
appellant was absent because he was at work, simply not home, or did not
actually live there was the issue for the jury to resolve, not whether the officer
who finally arrested appellant verified through some database that appellant was
not working.
Appellant also alleges that the reporter left out testimony from Ayala that
appellant’s stepbrother told her that appellant was not living at 729 Glen Garden.
Although this information is in Ayala’s notes, which are included in the State’s
open file that was provided to appellant and included in the reporter’s record from
a pretrial hearing, there is no indication in the record that Ayala so testified before
13
the jury. Ayala did testify that when she visited 729 Glen Garden, appellant was
not there, and she spoke to his stepbrother.14 Appellant raised this challenge to
the record in a presubmission motion before this court, and in response, the
reporter certified that Ayala’s testimony was included in the reporter’s record
provided.
Because the first alleged inaccuracy is not relevant to the issues at trial or
on appeal and because even if the jury heard testimony from Ayala that
appellant’s stepbrother told her appellant was not living at 729 Glen Garden, any
error in the admission of that evidence would be harmless, abatement would not
serve any purpose here; moreover, we have already denied appellant’s
objections to the record in a presubmission order. 15 See Tex. R. App. P. 44.2(b).
We overrule his ninth point.
14
In his closing argument, the prosecutor characterized this testimony as
follows: ―729 Glen Garden. She goes there, she talks to his stepbrother, half-
brother, he don’t live here.‖
15
Appellant also claims that Ayala testified at guilt-innocence that he tested
positive for THC. The record shows that Ayala testified at punishment that
appellant told her while he was released on bond that he would have tested
positive for marijuana. Even if this testimony is misplaced in the record, we
would hold that the testimony was harmless in light of our review of the entire
record.
14
Ineffective Assistance
In his seventh and tenth through thirty-fourth points, appellant alleges that
his counsel provided ineffective assistance at trial.16
Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988
S.W.2d 770, 770 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was
reasonable under all the circumstances and prevailing professional norms at the
16
In his seventh point, appellant complains that counsel failed to present
eight items of evidence to the jury that appellant contends would prove that he is
actually innocent. However, appellant failed to file a bill of exception as required
by the appellate rules. See Tex. R. App. P. 33.2. Therefore, we may not
consider these items because they are not included in the appellate record.
Ramirez v. State, 104 S.W.3d 549, 550–51 & n.9 (Tex. Crim. App. 2003); Booth
v. State, 499 S.W.2d 129, 135 (Tex. Crim. App. 1973).
15
time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Review of counsel’s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel’s conduct fell within a wide range of
reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at
63. A reviewing court will rarely be in a position on direct appeal to fairly
evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at
740; Thompson, 9 S.W.3d at 813–14. ―In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.‖ Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d
at 63). To overcome the presumption of reasonable professional assistance,
―any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting
Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to
simply infer ineffective assistance based upon unclear portions of the record.
Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
appellant must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. The ultimate focus of our inquiry must
16
be on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
Sexually Violent Offense
Appellant’s tenth and eleventh points allege that counsel was ineffective
for failing to request a lesser included offense and for failing to cross-examine a
witness; both points are based on appellant’s contention that his indecency
conviction is not a sexually violent offense and therefore he was not required to
report anymore. However, as we explained in our prior opinion, the legislature
has defined appellant’s indecency conviction as both a reportable conviction and
a sexually violent offense for which appellant is subject to lifetime registration
unless he applies for early termination through the trial court. See Tex. Code
Crim. Proc. Ann. arts. 62.001(5)(A), (6)(A) (West Supp. 2011), 62.101(a) (West
Supp. 2011), 62.401–.408 (West 2006 & West Supp. 2011). Nothing in the
record shows that appellant’s duty to report had terminated. Thus, we overrule
his tenth and eleventh points.
SBC Phone Records
In his twelfth point, appellant contends counsel was ineffective for failing to
subpoena a Detective Benson who would have testified that appellant called him
from 2800 Lena a short time after Detective Ufkes left the residence. Appellant
also contends in that point that counsel should have requested a continuance to
obtain SBC phone records, which would confirm Detective Benson’s testimony
and also show that Detective Ufkes went by 2800 Lena at 6:35 a.m. on August 7
17
rather than 12:10 p.m. Neither the phone records nor Detective Benson’s
proposed testimony are in the appellate record; moreover, whether appellant
called someone from 2800 Lena and at a different time from when Detective
Ufkes testified that he visited does not show that appellant was actually living at
that address at the time. Thus, we overrule appellant’s twelfth point.
Failure to Call Sendria Ford
In his thirteenth point, appellant contends his counsel was ineffective for
failing to call Sendria Ford, whom the defense had subpoenaed, because
appellant contends she could have verified that he was working at Whataburger
and that she had records verifying his work status at Whataburger. He also
contends that through Ford, he could have shown that he was working nights at
Whataburger (thus, presumably explaining why he was not at 2800 Lena at 6:35
a.m.). However, what Ford would have testified to or what her records would
show is not in the record, and whether appellant was working at Whataburger, or
somewhere else, or not working at all, does not show whether he was living at
2800 Lena at the time. We overrule appellant’s thirteenth point.
Alleged Violation of Motion in Limine
In his fourteenth point, appellant complains that counsel was ineffective for
failing to object to the prosecutor’s opening statement during guilt-innocence,
which appellant claims violated a pretrial motion in limine by discussing
extraneous bad acts. However, the part of the opening statement about which
appellant complains is limited to appellant’s failure to register, being arrested for
18
failure to register, and being on bond for failure to register, all of which are
related to the offense charged in the indictment. Accordingly, counsel was not
ineffective for failing to object; we overrule appellant’s fourteenth point.
Consolidation
In his fifteenth point, appellant claims that counsel was ineffective for
failing to object to the State’s ―consolidated evidence from cause 1197285 into
the trial of cause 1197286.‖ The record shows that although the State moved to
consolidate the two cases, the trial court denied that motion. Nothing in the
record indicates what appellant was charged with in number 1197285, but it
appears to be another failure to report offense. Appellant does not specify what
evidence counsel should have objected to, but he does argue that Ayala’s
testimony about him telling her he had lived at 729 Glen Garden since April 2006
is extraneous because it pertains to the charge in 1197285. However, even if
Ayala’s testimony is relevant to the charged offense in 1197285, it is likewise
relevant to the charged offense in this appeal; thus, we overrule appellant’s
fifteenth point.
State’s Exhibits 5 and 6
In his sixteenth point, appellant contends that counsel was ineffective for
failing to object to testimony by Ayala and evidence admitted through her
testimony. Specifically, appellant complains that counsel should have objected
to State’s exhibit 5, a form entitled, ―Tarrant County Community Supervision and
Corrections Department Probationer Data Sheet,‖ that appellant filled out for
19
Ayala in his own handwriting while he was released on bond and which indicates
that his address was 729 Glen Garden. Appellant contends counsel should have
objected to the admission of this document because it is not admissible under the
rule 803(8)(B) hearsay exception because it involved ―matters observed by police
officers and other law enforcement personnel.‖ Tex. R. Evid. 803(8)(B).
However, the form is not hearsay under rule 801(e)(2)(A) and thus was
admissible. Tex. R. Evid. 801(e)(2)(A) (providing that a defendant’s own
statements when offered against him are not hearsay); Stevenson v. State, 304
S.W.3d 603, 616–17 (Tex. App.––Fort Worth 2010, no pet.); Logan v. State, 71
S.W.3d 865, 869 (Tex. App.—Fort Worth 2002, pet. ref’d) (―The defendant and
the State . . . are party opponents.‖). Accordingly, we overrule appellant’s
sixteenth point.
In his seventeenth and eighteenth points, appellant contends that counsel
was ineffective for failing to object to State’s exhibits 5 and 6 under rule 403 and
404(b). Exhibit 6 is the second page of the form that appellant filled out in
compliance with his bond conditions entitled ―Information On People You Know.‖
According to appellant, these documents are substantially more prejudicial than
probative because they do not contain his signature or Ayala’s signature, they do
not show a date or time, and they do not indicate that appellant himself
completed them. However, Ayala testified that appellant filled out the forms in
his own handwriting and that she went over each of them with him carefully.
Counsel was able to cross-examine her about the documents. The documents
20
contained probative information and were more likely to assist the jury on the
issues rather than confuse or inflame it. Accordingly, we conclude and hold that
counsel was not ineffective for failing to object to State’s exhibits 5 and 6 on rule
403 grounds. See Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim.
App. 2006) (listing factors involved in rule 403 balancing test). We overrule
appellant’s seventeenth point.
Appellant contends that counsel should have objected to exhibits 5 and 6
under rule 404(b) because Ayala later testified that she visited 729 Glen Garden,
where appellant had indicated he had lived since April 2006, and appellant was
not there. She also testified that when she asked him about it, he told her he
moves around to be near work. Appellant says that this evidence shows the
documents were admitted solely to prove character conformity. However,
Ayala’s later testimony about his not being at 729 Glen Garden and his telling her
that he moved around a lot occurred at punishment. There was no similar
testimony from Ayala at guilt-innocence; thus, exhibits 5 and 6 were admitted at
guilt-innocence as evidence pertinent to the charged offense, not as evidence of
extraneous acts. Thus, rule 404(b) was not applicable, and counsel was not
ineffective for failing to object to the admission of exhibits 5 and 6 under rule
404(b). We overrule appellant’s eighteenth point.
Ayala’s Testimony
In his nineteenth point, appellant contends that counsel should have
objected to Ayala’s testimony about his telling her he had lived at 729 Glen
21
Garden since April 2006 as extraneous offense evidence. However, this
evidence is probative of whether appellant was living at 2800 Lena in August
2006 when Detective Ufkes visited; thus, it was not extraneous offense evidence.
See Tex. R. Evid. 404(b). We overrule appellant’s nineteenth point.
In his twentieth point, appellant contends counsel was ineffective for failing
to request an instruction at guilt-innocence that all extraneous offenses must be
proven beyond a reasonable doubt. Appellant contends that evidence he told
Ayala that he had been living at 729 Glen Garden since April 15, 2006 is an
extraneous act for which counsel should have asked for an appropriate jury
instruction. However, the State did not use this evidence as proof of character
conformity; the State’s contention at guilt-innocence was that appellant’s
assertion that he had been living at 729 Glen Garden was truthful and that
appellant either lied when he said his address was 2800 Lena, or he moved and
did not inform the police. Thus, this is not the type of extraneous bad act
evidence for which a beyond a reasonable doubt instruction is required. We
overrule appellant’s twentieth point.
In his twenty-first point, appellant contends that he was denied effective
assistance of counsel by the cumulative effect of counsel’s failure to object to
Ayala’s testimony combined with cross-examination by defense counsel that
elicited extraneous offenses. Ayala testified at punishment that appellant told her
he moves around a lot to live where he is working. According to appellant, this
testimony misled the jury to believe that he was moving around without
22
complying with registration requirements; thus, counsel should have objected
because evidence appellant attached to his brief––which is not part of the
appellate record––shows that Ayala knew he was in compliance with registration
requirements each time he moved. Appellant contends that counsel should have
objected because Ayala’s testimony was misleading and unfairly prejudicial. See
Tex. R. Evid. 403. Appellant also contends that counsel elicited further testimony
regarding the misleading extraneous offenses.
At punishment, the State elicited testimony from Ayala that when, in May
2007, she went to visit appellant at 729 Glen Garden, he was not there. When
appellant next reported to her, she confronted him about whether he lived there,
and he told her that he moves around to live close to where he works. She also
said that as his bond caseload officer, she was concerned because he had
trouble reporting to her and thus complying with his bond conditions. On cross-
examination, counsel elicited testimony from Ayala that appellant had told her he
was trying to find a job. Counsel asked Ayala whether sex offenders often have
to move because they have difficulty finding jobs; she said she did not know.
When counsel asked whether Ayala knew that appellant was seeking
employment in the food and beverage industry, she said that appellant had
reported to her that he was working at Mom’s Barbecue but that appellant’s
stepbrother told her appellant was not working there. But the stepbrother also
said he sometimes saw appellant at that restaurant.
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Nothing about Ayala’s testimony is misleading. She simply testified as to
what appellant told her as part of his bond conditions and what her investigation
uncovered. Although counsel did elicit testimony from her that appellant may
have lied when he told her he was working at Mom’s Barbecue, this evidence is
no more damaging than other evidence that appellant lied to Ayala about where
he was living. We conclude and hold that counsel was not deficient for failing to
object to Ayala’s testimony or for his cross-examination of Ayala, which did put
before the jury the idea that sex offenders may have trouble finding places to live
convenient to employment. See Tex. R. Evid. 403; Gigliobianco, 210 S.W.3d at
641–42. We overrule appellant’s twenty-first point.
Appellant claims in his twenty-ninth point that counsel was ineffective for
failing to object to Ayala’s testimony at punishment that appellant’s stepbrother
told her appellant did not live at 729 Glen Garden and did not work at Mom’s
Barbecue. According to appellant, his stepbrother’s statements are testimonial
and not admissible under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004). Contrary to appellant’s assertions, Ayala did not testify that appellant’s
stepbrother told her appellant did not live at 729 Glen Garden. She said that she
had visited that address, that appellant was not there, that she later questioned
appellant about it, and that he told her he moved around to be near work. She
also testified that she was concerned ―[b]ecause the address he gave me of 729,
he did not live there.‖ In an attempt to mitigate the effect of this testimony,
counsel questioned Ayala about whether sex offenders often have trouble finding
24
work and have to move around a lot. Ayala testified about the stepbrother telling
her that appellant did not work at Mom’s Barbecue in response to counsel’s
question as to whether she knew if appellant was attempting to find a job in the
food and beverage industry. However, in that same line of questioning, Ayala
testified that appellant was in the process of getting a job at Luby’s.
Even if the stepbrother’s statement about appellant not working at Mom’s
Barbecue was testimonial, it was redundant in light of other evidence that
appellant was not truthful with Ayala. Moreover, it was elicited at punishment
and therefore was not ―considered as substantive evidence of guilt and character
conformity in violation of [rule] 404(b),‖ as asserted by appellant. See Tex. Code
Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2011) (providing that at
punishment trial court may consider any evidence relevant to sentencing
including character of defendant). We overrule appellant’s twenty-ninth point.
Alleged Violation of Pretrial Discovery Orders
In his twenty-second point, appellant claims counsel was ineffective for
failing to object to Ayala’s testimony as violative of the reasonable notice
requirement of rule 404(b). Tex. R. Evid. 404(b). The record contains notices
from the State dated fifteen days before trial, in cause numbers 1197285 and
1197286, indicating that Ayala would testify about appellant’s telling her he was
living at 729 Glen Garden, that Ayala went to that address and appellant’s
stepbrother told her appellant was not living there, and that appellant told her he
moves around to live where he is working. See Martin v. State, 176 S.W.3d 887,
25
900–01 (Tex. App.––Fort Worth 2005, no pet.). Thus, no objection was
necessary. We overrule appellant’s twenty-second point.
Appellant contends in his twenty-third point that his counsel was ineffective
for failing to object to the State’s violation of a pretrial discovery order when the
State impeached appellant’s witness with prior felony convictions. The Motion for
Disclosure of Impeaching Information that the trial court granted compelled the
State to provide such information only for witnesses that the State intended to
call; thus, it did not apply to appellant’s witnesses. We overrule appellant’s
twenty-third point.
Remarks and Questioning by the State
In his twenty-fourth point, appellant challenges counsel’s effectiveness for
failing to object to the following argument by the prosecutor at guilt-innocence:
I mean, honestly, why do we care where Mr. Darnell’s at? Because
he’s a sex offender. He is a convicted sex offender. He’s required
to by law - - this is his paperwork. His victim was nine years old He
abused a child, a nine-year-old girl. He got to go to prison for that.
That’s why we care.
To prove the offense of failure to register, the State had to prove that
appellant had a reportable conviction for which he was required to register. Tex.
Code Crim. Proc. Ann. arts. 62.051, .102(a). Thus, the jury already had before it
evidence of appellant’s conviction for indecency with a child. Although the child’s
age was not part of the evidence before the jury and not relevant to whether
appellant failed to register, counsel might well have strategically decided not to
call additional attention to that fact by objecting. Moreover, it is unlikely that the
26
jury was so inflamed by this remark that it decided the case based on it rather
than the sufficient evidence supporting conviction. See In re A.J.G., 131 S.W.3d
687, 692–93 (Tex. App.––Corpus Christi 2004, pet. denied) (discussing remarks
calculated to appeal to public sentiment or community outrage). We conclude
and hold that counsel was not ineffective for failing to object to this remark. We
overrule appellant’s twenty-fourth point.
In his twenty-fifth point, appellant claims that the cumulative effect of
counsel’s failure to request a curative instruction and move for mistrial when the
court sustained an objection to leading questions by the prosecutor deems
counsel ineffective. When during cross-examination, Wyatt, appellant’s sister,
testified that she told TDHS that appellant was living at 2800 Lena, the State
followed up by asking her, ―Is it fair to say, you’re trying to avoid getting in any
kind of trouble if you said that the Defendant was living on Glasgow with you?‖
She said yes. The State then asked, ―That’s the reason you told the caseworker
about the 28 - -.‖ Counsel objected to the question as leading, and the trial court
sustained the objection. Counsel did not ask for a curative instruction or move
for a mistrial. However, neither was necessary here because the jury was not left
with a false impression; the TDHS form was admitted as evidence, and the jury
was able to gauge Wyatt’s credibility on direct and cross. We overrule
appellant’s twenty-fifth point.
Appellant’s twenty-sixth point also brings into question counsel’s response
to a leading question by the State. Appellant claims that during direct of
27
Detective Tillerson, who was the officer to whom appellant was to report for
registration purposes, the prosecutor ―framed his questions, asserting as fact,
that the appellant moved to three addresses without notifying Ms. Tillerson.‖ The
prosecutor questioned Detective Tillerson as follows:
Q. Okay. What address did this Defendant give you where he was
living?
A. I believe then on Lena Street.
Q. 2800 block of Lena Street, Fort Worth, Texas?
A. Yes.
....
Q. Did you explain to this Defendant that if he moved or changed
addresses, he personally had to come see you?
A. Yes.
Q. Did he acknowledge he understood that?
A. Yes.
Q. After March 20th of 2006, at any time, the year 2006, did the
Defendant come to you and tell you that he was living at a different
address?
A. In 2006, no.
Q. Never personally came in and said, hey, I’ve moved to 729 Glen
Garden?
A. No.
Q. I’m now living at 1404 Glasgow Road?
A. No.
28
Q. I’m living at - - I think it’s the 3400 block of James Avenue?
A. No.
Q. At all times in 2006, the address that this Defendant had given to
you personally, as required by law, was the 2800 block of Lena
Street, Fort Worth, Texas?
A. Yes.
[COUNSEL]: Judge, I object. I’ve been refraining from
objecting to leading questions, but it’s gone on long enough.
THE COURT: Sustained.
According to appellant, ―[w]ithout any curative instructions, the false
impression was left on the minds of the jury‖ that he had moved at least three
times without informing police. He complains that this was exacerbated by the
prosecutor’s closing argument stating that, ―I do not have to go to three or four
different addresses over two or three days to hunt you if you are where you said
you are,‖ referring to officers’ having had to go to several different locations
before finding appellant in August 2006. Appellant contends counsel should
have asked for an instruction to the jury to disregard.
Appellant’s sister had already testified that he never lived at 2800 Lena.
Counsel’s strategy to discredit her testimony by showing she lied to TDHS was
apparent. The State had already established through Detective Ufkes that
appellant was not at 2800 Lena when the detective visited the house and that
police finally found appellant at the third location they visited. In addition, the
State had already established through Detective Tillerson that 2800 Lena was
29
the only address appellant had given the Fort Worth police. Thus, even if
counsel’s strategy for allowing the leading questioning to go on was not
reasonable, we do not believe there is a reasonable probability that the result of
the trial would have been different if counsel had objected sooner. We overrule
appellant’s twenty-sixth point.
In his twenty-seventh point, appellant contends counsel was ineffective for
failing to object to improper argument that misstated the law. During closing, the
prosecutor called State’s exhibit 5, the information form appellant filled out while
on bond stating that he had lived at 729 Glen Garden since April 2006, ―a
handwritten confession.‖ Appellant contends that the form shows no indicia of a
confession, that the jury was misled to believe that appellant had legally
confessed to the offense, and that his defense was undermined and his
credibility called into question. Defense counsel had already addressed exhibit 5
in his closing argument, stating ―this entire family has problems with dates and
places and locations. He told them that, but did you ever hear the State say, he,
in fact, was living at the Glen Garden address? There was no testimony as to
that.‖ Because counsel had already dealt with this evidence, he may very well
have not wanted to call attention to the State’s characterization of the exhibit as a
confession when the document’s nature was clearly explained when it was
admitted. We conclude and hold that counsel was not ineffective for failing to
object to this argument, and we overrule appellant’s twenty-seventh point.
30
In his twenty-eighth point, appellant contends counsel was ineffective for
failing to object to the prosecutor’s argument outside the record that appellant
never worked at Whataburger. As we have explained, whether appellant worked
at Whataburger is not relevant to whether he was living at 2800 Lena.
Accordingly, we overrule appellant’s twenty-eighth point.
In his thirty-first point, appellant claims counsel was ineffective for failing to
object and move for mistrial when the prosecutor ―improperly [led] the jury to
believe that the appellant, in fact, was a habitual criminal‖ during voir dire
questioning. The record shows that the prosecutor was questioning the jury
about the purpose of the habitual offender paragraphs in the indictment (that if
proven they increase the range of punishment) and what type of evidence would
be appropriate for punishment rather than guilt/innocence. Nowhere does the
prosecutor intimate that appellant himself is a habitual offender, only that he was
charged with such. Hanson v. State, 269 S.W.3d 130, 134 (Tex. App.––Amarillo
2008, no pet.). We overrule appellant’s thirty-first point.
In his thirty-second point, appellant claims counsel was ineffective for
failing to object to the prosecutor’s suborning perjury when he asked Ayala
whether appellant was charged with a first-degree felony, knowing that the failure
to report offense is a second degree felony. Not only is the record silent as to the
prosecutor’s knowledge of what Ayala would answer or her state of mind, the
question about whether appellant was on bond for a first degree felony was
proper because with the inclusion of the habitual offender paragraphs in the
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indictment, if proven, appellant was charged with a first-degree felony. See Tex.
Code Crim. Proc. Ann. art. 62.102(b)(2), (c); Tex. Penal Code Ann. § 12.42(b)
(West Supp. 2011). We overrule appellant’s thirty-second point.
In his thirty-fourth point, appellant contends counsel should have objected
to the following argument expressing the prosecutor’s personal opinion of guilt:
―The Defendant is the convicted sex offender in this case, and it is his burden to
apprise law enforcement of where he is . . . . He may not like it, but it’s his duty
and it’s the law.‖ According to appellant, this remark ―implied that there is
evidence that the appellant has failed to register previously.‖ We do not believe
the remark can be so construed, but even if it could, we conclude and hold that
any error was harmless; thus, counsel’s failure to object to this remark did not
deprive the trial of a reliable result. See Allen v. State, 149 S.W.3d 254, 261
(Tex. App.––Fort Worth 2004, pet. ref’d) (holding more direct statement of
prosecutor’s opinion harmless). Accordingly, we overrule appellant’s thirty-fourth
point.
Allegedly Eliciting Improper Testimony and Failing to Call Witness
Appellant contends in his thirtieth point that counsel was ineffective for
eliciting testimony of appellant’s previous convictions. During questioning by
defense counsel whether appellant had ever lived at the 1404 Glasgow address,
appellant’s sister Wyatt responded that he had, ―[e]ach time he came home from
prison.‖ Counsel repeated ―each time he came home from prison‖ in two of his
subsequent questions. However, the State had already introduced evidence of
32
appellant’s prior conviction for indecency with a child resulting in at least one
nine-year prison sentence. Counsel may well have wanted to minimize any
potential effect of Wyatt’s answer by refraining to object to her statement. As for
repeating her answer; the jury was well aware that appellant had a prior record of
at least a sex offense, so the effect was likely not as significant as it would have
been in a trial in which a prior offense was not a predicate finding for the charged
offense. We conclude and hold that in the absence of a record showing
counsel’s reason from refraining from objecting, we cannot say that counsel was
ineffective for so refraining. See Lopez v. State, 343 S.W.3d 137, 143–44 (Tex.
Crim. App. 2011). We overrule appellant’s thirtieth point.
In his thirty-third point, appellant contends that counsel was ineffective for
failing to subpoena a licensed professional counselor as requested by appellant
to testify that appellant was not a continuing threat to children. According to
appellant, that was his only viable defense. But whether appellant requested that
counsel subpoena this counselor and what the counselor would have testified to
are not included in our appellate record. Without such evidence in the record, we
cannot determine whether the trial’s result would have been different but for this
alleged deficiency by counsel. We overrule appellant’s thirty-third point.
Summary
We have thoroughly reviewed the record as to each instance of alleged
error by counsel claimed by appellant. We find nothing that would, standing
alone or cumulatively, constitute ineffective assistance. See Lopez, 343 S.W.3d
33
at 143 & nn. 35–36; Ex parte Niswanger, 335 S.W.3d 611, 615–16 (Tex. Crim.
App. 2011).
Jury Charge
In his thirty-fifth and thirty-seventh points, appellant contends that the jury
charge at guilt-innocence failed to require the jury to find beyond a reasonable
doubt that his indecency conviction was reportable and that the jury charge at
punishment failed to require the jury to find the habitual offender allegations
beyond a reasonable doubt in violation of Apprendi v. New Jersey. 530 U.S.
466, 120 S. Ct. 2348 (2000). Upon review of both charges, they clearly require
the jury to find beyond a reasonable doubt that appellant’s indecency conviction
is reportable and that appellant committed the offenses alleged in the habitual
offender paragraph of the indictment. We overrule appellant’s thirty-fifth and
thirty-seventh points.
Conclusion
Having overruled all of appellant’s thirty seven points, we affirm the trial
court’s judgment.
PER CURIAM
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 10, 2011
34