Roger Lee Carlock v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00116-CR

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ROGER LEE CARLOCK, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 76th Judicial District Court

Camp County, Texas

Trial Court No. CF-01-7259

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

          Roger Lee Carlock appeals his sentence of ninety-nine years' imprisonment and a $5,000.00 fine. In a single point of error, Carlock contends the evidence is factually insufficient to support the jury's finding he had been previously convicted of aggravated sexual assault and, therefore, the jury should not have been permitted to assess his punishment within the range provided for a first degree felony rather than under the range provided for a second degree felony. We overrule the issue presented and affirm the trial court's judgment.

Standard of Review

          The Texas Court of Criminal Appeals recently refined the standard for reviewing factual sufficiency. In Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004), the court held that, when an appellant challenges the factual sufficiency of the evidence, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in reaching its verdict beyond a reasonable doubt. Id. There are two ways in which the evidence may be factually insufficient. First, the evidence supporting the verdict, if considered alone, may be too weak to support the jury's finding beyond a reasonable doubt. Id. Second, if—when weighing the evidence supporting and contravening the conviction—the reviewing court concludes the contrary evidence is strong enough that the state could not have met its burden of proof, then the evidence must be held to be insufficient. Id. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, the reviewing court must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). While the Zuniga court framed its analysis within the context of reviewing the evidence to support a verdict on guilt/innocence, we hold the same analysis applies when evaluating the adequacy of the proof to support an enhanced punishment verdict. Cf. Davis v. State, No. 03-03-00148-CR, 2004 Tex. App. LEXIS 4723, at *10–11 (Tex. App.—Austin May 27, 2004, no pet. h.) (applying Zuniga standard when evaluating factual sufficiency of deadly weapon finding); and Lopez v. State, Nos. 12-03-00057-CR & 12-03-00058-CR, 2004 Tex. App. LEXIS 4862, at *11–12 (Tex. App.—Tyler May 28, 2004, no pet. h.) (applying pre-Zuniga standard to evaluate factual sufficiency of evidence to enhance punishment range).

Factual and Procedural Background

          In the case now before us, Carlock was convicted of indecency with a child, a second degree felony. See Tex. Pen. Code Ann. § 21.11(a)(1), (d) (Vernon 2003). The punishment range for a second degree felony is between two and twenty years' imprisonment. Tex. Pen. Code Ann. § 12.33(a) (Vernon 2003). However, "[i]f it is shown on the trial of a second-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a first-degree felony." Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2004). A first degree felony carries a punishment range of between five and ninety-nine years' imprisonment, or incarceration for life. Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003). The State sought to enhance the punishment range for Carlock's offense to that of a first degree felony by virtue of a previous conviction June 16, 1986, for aggravated sexual assault (a first degree felony) in Titus County District Court cause number 10,496. See Tex. Pen. Code Ann. § 22.021(e) (Vernon Supp. 2004). Carlock pled "not true" to having been previously convicted of aggravated sexual assault.

          The State's first punishment witness was a Titus County deputy district clerk named Jacki Francis. Francis identified State's Exhibit 1 as a certified copy of the Titus County judgment of conviction of "R. L. Carlock" in cause number 10,496. Francis testified State's Exhibit 1 pertained to a defendant named Roger Lee Carlock. On cross-examination, however, Francis admitted she lacked any personal knowledge whether the "R. L. Carlock" named in State's Exhibit 1 was the same "Roger Lee Carlock" then on trial.

          Kathy Worth, an experienced parole officer, testified next. She told the jury she had supervised Carlock while he was on parole on two previous occasions. Worth stated Carlock was the same "R. L. Carlock" who had been convicted of aggravated sexual assault in Titus County cause number 10,496. She also told the jury she had supervised Carlock while he was on parole in connection with Camp County cause number 6123, a conviction for indecency with a child. Worth admitted on cross-examination, however, that she lacked any independent memory of the specific cause numbers of Carlock's convictions; instead, she had reviewed State's Exhibit 1 and determined that, because the date of conviction in that case occurred shortly before she began supervising Carlock's parole, she must have supervised Carlock for the Titus County conviction. She was nonetheless certain she had supervised Carlock's parole for an aggravated sexual assault conviction, as well as for a second conviction for indecency with a child.

          Carolyn Jean Rogers, Carlock's former neighbor, testified on Carlock's behalf. Rogers admitted on cross-examination Carlock had admitted to her he had been to prison twice before. She also said she knew the offenses for which Carlock had been imprisoned were both sex-related offenses.

Analysis

          Examining all the evidence in a neutral light, we believe the jury was rationally justified in concluding, beyond a reasonable doubt, that the "R. L. Carlock" referenced in the State's first exhibit was the same person as the defendant. Worth testified she was certain she had supervised Carlock for his parole on an aggravated sexual assault conviction. Her supervision occurred a few years after the relevant date of conviction. Her testimony reveals she personally identified Carlock as the same parolee she had previously supervised. There is nothing in the record to suggest Worth had supervised a different "R. L. Carlock" for either aggravated sexual assault, or to contradict Worth's testimony that the defendant was the same Roger Lee Carlock she had previously supervised. Moreover, even Carlock's own witness testified Carlock had previously admitted having been imprisoned for sex-related offenses.

          Given the testimony presented in this case, we cannot say the evidence supporting the verdict is too weak to support the jury's finding. We also cannot conclude that the contrary evidence outweighs the evidence supporting the jury's conclusion. As such, we find the evidence factually sufficient to support the jury's conclusion Carlock had been previously and finally convicted of aggravated sexual assault.

          We affirm the trial court's judgment.

 

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      June 15, 2004

Date Decided:         June 23, 2004

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that had occurred at the previous hearing.

The Court: . . . March 31st, 2000 you informed the Court of your intentions to waive your right to counsel -

Mr. Clement: Yes, ma'am.

The Court: - and your desire to represent yourself pro se, correct?

Mr. Clement: Yes, ma'am.

The Court: At that time, I strongly encouraged you to reconsider that decision over the weekend.

Mr. Clement: Yes, ma'am

The Court: And to come back here this afternoon with an attorney.

Mr. Clement: Yes, ma'am.

. . . .

The Court: . . . you're not telling the Court that you're indigent and cannot afford an attorney.

Mr. Clement: No, ma'am, I'm not telling the court that I'm indigent and cannot afford an attorney.

The Court: . . . you are not indigent.

Mr. Clement: No, ma'am.

The court then explained which charge was going to trial on April 17 (there were two indictments pending against Clement at the time). Clement explained that he would try to hire counsel, but continued to express reservations. The court then decided to fully admonish Clement:

You also must be aware in the event that you do end up representing yourself of the extreme disadvantages which might face you if you were to choose to do that. There are many technical rules of evidence and procedure that you would need to follow and you would not be granted any special considerations because you've asserted to represent yourself pro se. You would be under the same rules and guidelines that an attorney in your position would be, okay? There are rules regarding evidence and you must know how to introduce the evidence and what evidence is appropriate and proper, how to get that - those matters into evidence as well as if you had any objections to any evidence that the state was entering or offering, you would need to know how to make those objections and with regard to objections you would need to know what a legal objection is, how to make that and the grounds for that objection. You would also need to know how to respond to the objections made by the state, okay? There are certain motions, and you need to be aware of this, that are required to be made or else they are waived and you would lose certain rights if motions are not made. You must have an understanding of the voir dire process and procedure and what that involves and what is proper and appropriate in a voir dire examination of a jury panel. You would need to know how to examine a witness, both the witness that you call as well as cross-examining witnesses if you choose to do that . . .

Obviously if you're representing yourself, no one will be allowed to assist you . . . [m]eaning that you would be in that seat all alone, with no co-counsel . . . There are certain rights that a non-lawyer might not be able to accomplish . . . [these are] some but not necessarily all of the disadvantages of representing yourself pro se. You have no right to stand by counsel. As a result of everything that I've just gone over with you, you might be disadvantaged both at trial and also with regard to any appeal that might follow your jury trial.

At this point, the court made an inquiry into Clement's background, including his age (thirty-nine), education level (college graduate), lack of any history of mental or psychological problems (none), and work history (no legal training, worked since 1994 as a computer systems product developer/engineer/designer). The court then read the statutory waiver to Clement, and he responded that he understood. See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2002). On April 17, the day trial began, Clement signed the waiver of representation of counsel form and the court read the form into the record.

Clement's argument essentially posits that despite his knowing and intelligent waiver of counsel, and despite his own insistence on proceeding pro se in the face of repeated warnings against doing so, the trial court erred because it did not discern that Clement subjectively "failed to fully appreciate the dangers of self-representation." Clement cites no authority for this position and makes no argument for what "fully appreciating the dangers of self-representation" means, nor does he argue for an expansion of the current requirements. The trial court's admonishments exceeded both in scope and frequency the requirements of Article 1.051. The law does not require more.

Clement also asserts that he received ineffective assistance of counsel because his counsel did not file a timely application for probation (now community supervision). Clement argues that the failure to file such a motion amounts to per se ineffective assistance of counsel. Texas recognizes no such per se rule of ineffective assistance under the circumstances presented. Because the attorney alleged to have committed ineffective assistance withdrew with the court's approval one month before trial, and because the application for community supervision may be filed at any time before trial, Clement has failed to demonstrate ineffective assistance of counsel.

To prevail on his claim of ineffective assistance, Clement must demonstrate that his attorney's representation fell below a reasonable standard of effectiveness and that the deficient performance was so serious that it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.-Texarkana 2000, pet. ref'd). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.

Clement's retained counsel filed various pretrial motions, including a discovery motion and an election for the jury to assess punishment. The record shows that Clement's relationship with his counsel deteriorated to the point that Clement dismissed him sometime in February 2000. Counsel filed a motion to withdraw and served a copy on Clement on March 10. The trial court granted the motion on March 17, one full month before trial.

Clement  filed  and  argued  his  own  motion  to  proceed  pro  se  before  the  trial  court on March 31. The same day, Clement also filed a motion to suppress that was heard before jury selection on April 17. A defendant is eligible for jury-recommended community supervision provided he files a written sworn motion stating his eligibility with the trial court before the trial begins. Tex. Code Crim. Proc. Ann. art. 42.12 § 4(e) (Vernon Supp. 2002). There is no requirement that this motion be filed any earlier than the day of trial. Clement did not file a sworn motion of eligibility for community supervision.

Clement had ample opportunity to file his motion of eligibility for community supervision, and he could have done so any time after March 17, up to and including the morning trial began. He did not do so. Indeed, the record indicates that Clement did not want to apply for community supervision and made a deliberate decision not to do so. At the voir dire of the jury, the court and the prosecutor stated that no application for community supervision had been filed. The prosecutor then asked Clement if he filed an application for community supervision, and Clement answered "no." Before being permitted to proceed pro se, the trial court sternly admonished Clement that his rights could be restricted by the failure to file motions that were required before trial began. Clement has failed to demonstrate any error, because the lawyer he dismissed in February withdrew as attorney of record a full month before trial, well before an application for community supervision was necessary. Any subsequent counsel would have been in a position to file the application, including Clement, acting pro se. There is no error in not filing a motion in the trial court a month before it is due. Clement has thus failed to make the requisite showing of deficient performance. See Burruss v. State, 20 S.W.3d at 186.

Under Strickland, Clement is required to show that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Once again, this burden is on the defendant. Clement offers no argument in his brief that the failure to file an application for community supervision in February or March might have adversely affected his sentence. ⁽³⁾ He has therefore also failed to make a showing of prejudice. See Burruss v. State, 20 S.W.3d at 186.

Because we have overruled all of Clement's points of error, we affirm the trial court's judgment.

William J. Cornelius

Chief Justice

Date Submitted: October 24, 2001

Date Decided: December 12, 2001

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1. At the hearing on the motion to suppress, Warren testified that he had received a written statement, but that it was incomplete. He later testified that the incomplete statement referred to was the same one Scott completed at 11:15 p.m., and that he had received an oral statement from another officer attesting to Scott's written statement.

2. The record does not contain a copy of the motion to withdraw, but does indicate that Clement fired Griffith and refused to accept the appointment of any lawyer from the Gilmer area.

3. We further note that, because he was sentenced to twelve years' imprisonment, Clement was ineligible for community supervision. See Tex. Code Crim. Proc. Ann art 42.12 § 4(d)(1) (Vernon Supp. 2002). Thus, even if he had been represented by counsel, it is not clear that he could have shown the requisite harm to successfully argue ineffective assistance of counsel.