AT AUSTIN
NO. 3-92-341-CR
DWIGHT ERIC CRAYTON,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0914120, HONORABLE BOB JONES, JUDGE PRESIDING
Dwight Crayton, appellant, was convicted of the offense of aggravated robbery; the jury found the enhancement allegations true and assessed punishment at confinement for a term of seventy-five years. The trial court cumulated the sentence for aggravated robbery with two sentences for contempt imposed in the course of the trial and with sentences imposed in five other criminal causes. (1) Appellant brings four points of error, complaining that (1) he received ineffective assistance from appointed counsel, (2) the evidence is insufficient to sustain the conviction, (3) the trial court erred in giving additional instructions to the jury after they appeared to be deadlocked, and (4) the trial court erred in cumulating the sentences. We will affirm the conviction.
BACKGROUND
John Fisher, the assistant manager of an Austin convenience store, was a victim of two aggravated robberies at the store during his "graveyard" shift--one on July 2nd and another on July 16, 1991. Fisher did not get a good look at the July 2nd thief, but described the man to police as best he could. Fisher got a better look at the robber on July 16th and again gave police a description. On August 18th when appellant entered the store, Fisher thought he recognized him as the robber, noted the license plate number of appellant's car, and reported this information to the police. On August 19th Sergeant Hampton of the Austin Police Department presented Fisher with a photo line-up of eleven similar individuals; Fisher identified appellant as the same individual who had entered his store the day before and who had robbed the store at gunpoint on July 16th. Fisher also thought appellant was the July 2nd assailant. However, appellant was indicted, tried, and convicted only for the July 16th robbery.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first point of error, appellant complains that he did not receive effective assistance of counsel as guaranteed under the Sixth Amendment to the United States Constitution. The standard by which an appellate court reviews the effectiveness of counsel at the guilt/innocence stage of a non-capital trial was articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by the Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). The Supreme Court in Strickland outlined a two-step analysis. First, the reviewing court must decide whether trial counsel's performance failed to constitute "reasonably effective assistance." Stated differently, the question is whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Ex parte Menchaca, No. 71,567, slip op. at 5 (Tex. Crim. App. May 12, 1993). If counsel's performance fell below the objective standard, the reviewing court then must determine whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. Prejudice is demonstrated when the convicted defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 57. We must evaluate counsel's performance in light of the totality of the representation, not by isolated acts or omissions. See Strickland, 466 U.S. at 688. In order to eliminate the distorting effects of hindsight, the conduct must be judged from counsel's perspective at the time of trial. Id. at 689; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987).
Although appellant cites eight strategic shortcomings of defense counsel, his most serious complaint is that counsel improperly "opened the door" to Fisher's allegations that appellant robbed the store on July 2nd, as well as on July 16th, even though appellant was indicted only for the July 16th robbery. Although defense counsel filed a motion in limine to prevent the State's discussion of Fisher's belief that appellant was the July 2nd assailant, counsel himself cross-examined Fisher as to the extraneous robbery. Appellant contends that this questioning falls outside the bounds of reasonably effective assistance. We disagree.
Defense counsel maintained throughout the trial that this was a case of mistaken identity. Fisher, the only witness to the crime, positively identified appellant as the July 16th robber. By cross-examining Fisher about his equivocal identification of the robber on July 2nd, defense counsel intended to introduce some doubt about Fisher's "positive" identification of the July 16th assailant. Fisher gave a detailed description to the police on July 2nd, even though he admitted that he had had little opportunity to get a good look at his assailant. Furthermore, Fisher provided conflicting descriptions of the assailant on July 2nd and on July 16th but maintained that appellant robbed him both times.
After the July 2nd incident, Fisher told police he was robbed by "a black male, five-nine, 150 pounds, 27 to 30 years of age, short curly hair and some facial hair and a small mustache." Discrepancies existed between this description and that of the "clean-shaven" individual who entered the store on August 18th, whom Fisher recognized as the robber of July 16th, also described as having no facial hair. In light of these discrepancies, defense counsel cross-examined Fisher extensively about his testimony that appellant had been the assailant on both occasions. Counsel's apparent trial strategy in questioning Fisher about who robbed the store on July 2nd was to discredit the only witness and thereby create a reasonable doubt about the identity of the July 16th assailant.
In light of Fisher's testimony that he did not get a good look at the man who robbed him on July 2nd and the several discrepancies in the physical descriptions given to police on July 2nd and July 16th, questioning Fisher's "positive" identification of appellant as the assailant on those two occasions was a reasonable means of challenging Fisher's credibility. The jury was troubled by the testimony regarding the July 2nd robbery and, during their deliberations, asked to review the transcript of that testimony. (2) The prosecution felt compelled to remind the jury that appellant was on trial only for the July 16th robbery and that the State had no burden as to the July 2nd robbery. Mention of the extraneous offense was calculated to create confusion and doubt regarding Fisher's positive identification of appellant on July 16th. We conclude that such a strategy, given the facts and circumstances of this case, was within the bounds of acceptable representation. (3)
Appellant complains of seven other instances of allegedly unprofessional error: failure to object at all during the guilt-or-innocence phase of the trial; failure to object to the court's charge on punishment; failure to object to the court's failure to respond in writing to a jury request to review certain testimony; failure to attach a police officer who could testify about the inability to lift fingerprints at the crime scene; failure to lay the proper predicate to discuss certain statements in an offense report; failure to inquire into the circumstances surrounding the various photo lineups at which Fisher identified appellant; and failure to object to a "dynamite" charge (4) to the jury that mentioned the cost of a mistrial.
As to appellant's penultimate allegation of unprofessional error, we note that counsel did file a motion to suppress identification, alleging that the photo lineup was impermissibly suggestive. This motion was urged at the pretrial hearing and overruled by the trial court. Appellant does not complain that the trial court erred in its ruling. The record reflects that defense counsel cross-examined the police officer who compiled and presented the photo lineup to Fisher regarding any suggestive comments or other improprieties. We cannot sustain the complaint that counsel was ineffective in failing to bring any questions regarding the propriety of the photo lineup to the trial court's attention.
As to appellant's complaint that counsel objected to neither the court's failure to respond in writing to a jury request that certain evidence be reread to them nor to the court's additional unwritten instructions to the jury, we note that the court properly refused to allow the jury to review the testimony and that counsel's failure to object that the instruction was not in writing does not constitute deficient conduct. See Allaben v. State, 418 S.W.2d 517, 520 (Tex. Crim. App. 1967) (citing Lamkin v. State, 301 S.W.2d 922, 927 (Tex. Crim. App. 1957)). Likewise, although counsel attempted to object to the dynamite charge to the jury, he neither specified the claimed error in the charge, nor requested or obtained a ruling on his objection; thus nothing is preserved for review. See Pennington v. State, 697 S.W.2d 387, 390 (Tex. Crim. App. 1985). In light of our discussion below of the charge itself, we cannot say that this isolated failure to object deprived appellant of a fair trial under the Strickland standard.
In his remaining complaints about counsel's strategic inadequacies, appellant simply makes conclusory statements that counsel's conduct of the trial did not amount to effective assistance. Appellant fails, however, to show a reasonable probability that, but for counsel's alleged ineffective assistance, the result of the case would have been different. Such a showing is essential to a successful challenge on ineffective-assistance grounds. See Strickland, 466 U.S. at 694; Menchaca, No. 71,567, slip op. at 6; Hernandez, 726 S.W.2d at 57. Moreover, we have reviewed appellant's remaining complaints regarding the ineffectiveness of counsel's representation in light of the entire record and conclude that counsel's performance did not fall below the standard of reasonably effective assistance of counsel. We overrule the first point of error.
ADDITIONAL INSTRUCTIONS TO THE JURY
In his third point of error, appellant complains that the court erred by giving further instruction to the jury, after the jury had begun its deliberations on guilt and innocence, because the additional charge was coercive and because it was not given in writing as required by article 36.27 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 36.27 (West 1981). As noted above, appellant failed to preserve any error regarding this statutory infraction by not properly objecting and obtaining a ruling on this easily correctable mistake. See Smith v. State, 513 S.W.2d 823, 829 (Tex. Crim. App. 1974) (defendant must timely object to preserve error of failure to comply with requirement of article 36.27).
We will nevertheless review the entire charge to determine if it was so coercive that it deprived appellant of a fair trial. The comments complained of mention the cost of a new trial.
COURT: This is an important case. The trial has been expensive in time, effort, and money to both the defense and the prosecution. If you should fail to agree on a verdict, the case is left open and must be tried again. Obviously another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side better or more exhaustively that [sic] it has been tried before you.
Although we strongly disapprove of the mention of the cost of a new trial, we note that the court went on to admonish the jurors in the majority to reconsider their views on conviction in light of the dissenting jurors' doubts:
On the other hand, the other jurors ought seriously to ask themselves again and most thoughtfully whether they do not have a reason to doubt the correctness of a judgment which is not shared by several of their fellow jurors and whether they should distrust the weight and sufficiency of evidence which fails to convince several of their fellow jurors beyond a reasonable doubt.
After advising each juror not to yield a "conscious conviction" as to the weight or sufficiency of the evidence, the court concluded: "You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt that the accused should have your unanimous verdict of `Not Guilty.'" Despite the improper remarks mentioning the expense of a new trial, we conclude that the additional instructions, considered as a whole, were not coercive in fact and did not deprive appellant of a fair trial. See Calicult v. State, 503 S.W.2d 574, 576 (Tex. Crim. App. 1974); Arrevalo v. State, 489 S.W.2d 569, 572 (Tex. Crim. App. 1973). We overrule point of error three.
SUFFICIENCY OF EVIDENCE AND CUMULATIVE SENTENCES
In his second point of error, appellant complains that the evidence is insufficient to sustain the conviction. After thoroughly reviewing the record evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the only disputed element of the offense, the identity of appellant, beyond a reasonable doubt. See Avery v. State, 632 S.W.2d 610, 614 (Tex. Crim. App. 1982). We overrule point of error two.
In his fourth and final point of error, appellant complains that the trial court erred in cumulating the sentence imposed for aggravated robbery with the two sentences imposed for contempt of court during this trial and with the sentences imposed for five other criminal convictions. Trial judges are given the discretion to cumulate sentences. Tex. Code Crim. Proc. Ann. art. 42.08 (West Supp. 1993). The sentence must be sufficiently clear that authorities know how long to detain the prisoner; the judgment in this case unequivocally announces the length of each sentence and the order in which they are to be served. The judgment contains all of the details required in an order of cumulation. See Grant v. State, 635 S.W.2d 933, 936 (Tex. App.--Amarillo 1982, no pet.). We overrule the fourth point of error.
CONCLUSION
Finding no error below, we affirm the conviction.
Bea Ann Smith, Justice
[Before Justices Powers, Jones and B. A. Smith]
Affirmed
Filed: June 2, 1993
[Do Not Publish]
1. 1 The trial court cumulated the following sentences imposed in other Travis County criminal causes: (1) confinement for seven years for the offense of possession of a controlled substance in cause number 104,515; (2) confinement for five years for the offense of burglary of a vehicle in cause number 90,454; (3) confinement for five years for the offense of theft of at least $750 in cause number 92,011; (4) confinement for five years for the offense of burglary of a vehicle in cause number 90,327; and (5) confinement for five years for the offense of burglary of a vehicle in cause number 90,631.
2. 2 Counsel's failure to object to the trial court's unwritten denial of this request is one of appellant's complaints of ineffective assistance of counsel discussed below.
3. 3 Because of factual distinctions between the two cases, our holding is not controlled by that in Menchaca, in which the Court of Criminal Appeals reversed a conviction based on applicant's complaints of ineffective assistance of counsel. In Menchaca, defense counsel failed to file a motion in limine to prevent admission of an inadmissible prior felony conviction and failed to object when the prosecution elicited testimony of that conviction. Counsel likewise failed to request a limiting instruction and actually referred to the prior conviction during argument. The facts of Menchaca showed counsel to be grossly unprepared to protect his client's interests.
By contrast, defense counsel in this case filed a motion in limine to exclude reference to
appellant's prior convictions or to evidence of guilt of any other offense. Counsel then
strategically opted to discuss the extraneous July 2nd robbery in order to cast doubt on the
credibility of the sole witness. The record before us reflects that counsel's conduct of the
defense in this case is in no way comparable to the inadequate performance by trial counsel in
Menchaca.
4. 4 Although appellant refers to the charge in question as an Allen charge, we believe that to
be a misnomer. The true Allen charge, delivered when the jury is deadlocked, indicates to a
juror that some deference is owed the opinion of the majority of fellow jurors. See Allen v.
United States, 164 U.S. 492 (1896). In the instant case, by contrast, the trial court simply
urged the jurors to arrive at a verdict.