Joshua David Stevens v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00235-CR

______________________________

JOSHUA DAVID STEVENS, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 31,001-B

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

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Joshua David Stevens appeals his conviction for delivery of a controlled substance, namely methamphetamine. On December 20, 2004, Stevens was placed on deferred adjudication for ten years. Stevens waived the appeal. On June 17, 2005, the State filed an application for the adjudication of guilt, alleging Stevens failed to report, failed to pay various fees, failed to perform community service, and used controlled substances, specifically marihuana and methamphetamine. The trial court adjudicated guilt and sentenced Stevens to twenty-five years' imprisonment. On appeal, Stevens raises two issues: that the indictment was insufficient to confer jurisdiction to the trial court and that he received ineffective assistance of counsel. We affirm.

            Before this Court can address the merits of Stevens' arguments, we must first determine if we have jurisdiction over this appeal. The United States Constitution does not guarantee a criminal defendant the right to appeal a conviction. McKane v. Durston, 153 U.S. 684, 687 (1894). Nor does the Texas Constitution provide such a right. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Instead, a defendant's right to appeal a criminal conviction in Texas "is only as provided by the legislature." Id. As it relates to the case now before us, the Texas Legislature has expressly stated that a defendant may not appeal a trial court's decision to proceed to an adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Cooper v. State, 2 S.W.3d 500, 502 (Tex. App.—Texarkana 1999, pet. ref'd). Further, the general rule is an appellant may raise issues relating to the original plea proceeding placing the defendant on deferred adjudication community supervision only in appeals taken when community supervision was first imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999). The Legislature's prohibition includes all complaints attaching to the trial court's decision to proceed to an adjudication of guilt, except for those challenges to a void judgment, the habeas corpus exception, or issues related to proceedings following the adjudication decision. See, e.g., Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001) (recognizing applicability of "void judgment" exception to the deferred adjudication proceedings); Fluellen v. State, 71 S.W.3d 870, 872 (Tex. App.—Texarkana 2002, pet. ref'd) (defendant whose guilt was adjudicated may appeal issues relating to sentencing). Thus, Stevens can only appeal a void judgment or issues related to proceedings following the adjudication decision. Because Stevens' ineffective assistance of counsel claims do not relate to a void judgment or issues following the adjudication decision, Stevens cannot raise the issue on direct appeal. See Bahm v. State, 184 S.W.3d 792 (Tex. App.—Beaumont 2006, pet. filed); see also Manuel, 994 S.W.2d at 661–62.

            In his first point of error, Stevens argues the trial court lacked jurisdiction because the indictment was so defective as to be a nonindictment. A judgment is void in very rare situations, usually due to a lack of jurisdiction. The indictment in this case provides as follows in pertinent part:

knowingly deliver, by actual transfer, to C. Payne, a controlled substance, namely, a material, compound, mixture, or preparation in an amount of four grams or more but less than two-hundred grams, that contained a quantity of 3,4-methyldioxymethamphetamine . . . .

The indictment clearly alleges that Stevens possessed a controlled substance. However, the compound alleged 3,4-methyldioxymethamphetamine is not listed in the Texas Controlled Substances Act. See Tex. Health & Safety Code Ann. §§ 481.001–.205 (Vernon 2003 & Supp. 2005). The Texas Health and Safety Code, though, does include a compound entitled 3,4-methylenedioxy methamphetamine. Tex. Health & Safety Code Ann. § 481.103. The compound described in the Texas Health and Safety Code contains the letters "ene," which are not included in the indictment.

            In support of his argument, Stevens cites Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995), and Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). In Cook, a fractured Texas Court of Criminal Appeals held that an indictment is not required to charge every element of an offense in order to vest jurisdiction with the trial court, with the proviso that an indictment must charge a person with a criminal offense. Cook, 902 S.W.2d at 477–78. In Duron, the Texas Court of Criminal Appeals explained that the indictment must allege an offense with enough specificity and clarity that the defendant can ascertain the penal statute under which the State intends to prosecute. Duron, 956 S.W.2d at 550–51.

            Historically, "fundamental" errors in the indictment could be challenged at any point in the proceedings. See, e.g., Morris v. State, 13 Tex. App. 65, 71 (1882); see also Cook, 902 S.W.2d at 476. In 1985, Texas voters approved an amendment to Section 12 of Article V of the Texas Constitution that a defect of form or substance in an indictment is waived if no objection is made before the date trial commences and that the presentation of an indictment or information vests the trial court with jurisdiction over the case. Tex. Const. art. V, § 12; see Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990); see also Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005), arts. 21.01–.31 (Vernon 1989 & Supp. 2005).

            However, an instrument which is not an "indictment" under Article V, Section 12 of the Texas Constitution fails to vest the trial court with jurisdiction and can be raised for the first time on appeal. See Duron, 956 S.W.2d at 555; Cook, 902 S.W.2d at 479–80. "[T]o comprise an indictment within the definition provided by the constitution, an instrument must charge: (1) a person; (2) with the commission of an offense." Cook, 902 S.W.2d at 476. "[A] written instrument is an indictment or information under the Constitution if it accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the indictment is otherwise defective." Duron, 956 S.W.2d at 550–51. The issue presented to this Court is whether the omission of the letters "ene" prevents the charging instrument from describing the crime with enough clarity and specificity to identify the relevant penal statute.

            Stevens argues that 3,4-methyldioxymethamphetamine is a mere "jumble of letters that means nothing." The State responds, although the record is not clear whether 3,4-methyldioxymethamphetamine is a salt or isomer of 3,4-methylenedioxy methamphetamine, the compounds are essentially identical and no reasonable person would be confused. Although the indictment in this case misspelled the scientific name of the controlled substance, the indictment provided sufficient notice to the defendant. In general, the mere misspelling of a name does not prevent an indictment from alleging an offense, provided the indictment nevertheless provides the necessary notice of the statutory offense. See Cantu v. State, 944 S.W.2d 669, 671 (Tex. App.—Corpus Christi 1997, pet. ref'd) ("heroin" misspelled as "herion"); Ex parte Eckrich, No. 02-04-00133-CR, 2004 Tex. App. LEXIS 5398 (Tex. App.—Fort Worth June 17, 2004, no pet.) (mem. op.) (not designated for publication) ("3,4-methylenedioxy methamphetamine" misspelled as "3,4-theylenedioxy methamphetamine"); see also Fitts v. State, 982 S.W.2d 175, 184 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) ("remuneration" misspelled as "renumeration"); Enriquez v. State, No. 08-02-00005-CR, 2004 Tex. App. LEXIS 6480 (Tex. App.—El Paso July 21, 2004, no pet.) (not designated for publication) ("benefit" misspelled as "bebfit"). Given the similarity between the names of the compounds and that the indictment clearly provides Stevens was accused of delivery of a controlled substance, no reasonable person would have been confused that the State was alleging delivery of a controlled substance listed in penalty group 2 of the Texas Controlled Substances Act. Such a conclusion is particularly true when one considers that scientific names appear excessively complex to most laymen. The indictment, even with the misspelled word, accused Stevens of a crime with enough clarity and specificity to identify the penal statute under which the State intended to prosecute. As such, Stevens was not deprived of the screening function of a grand jury. The typographical error in the spelling of the scientific name of the compound is not sufficient to deprive Stevens notice of the crime of which he was accused or to deprive the trial court of jurisdiction. We overrule Stevens' first point of error.

            For the reasons stated, we affirm the judgment of the trial court.

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          April 21, 2006

Date Decided:             May 2, 2006

Do Not Publish

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00141-CR

                                                ______________________________

 

 

                                   JESSE DWAYNE BLACK, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                  

 

 

                                       On Appeal from the Sixth Judicial District Court

                                                             Lamar County, Texas

                                                            Trial Court No. 23640

 

                                                                                                   

 

 

 

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

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

 

            Jesse Dwayne Black was driving a maroon Toyota Tundra—bearing Texas license number 15FLD5 and filled with gasoline—in front of a Murphy Oil Company filling station in Paris, Texas, when spotted by Paris Police Officer Curtis Graham.  Graham was, at that moment, in the midst of investigating a theft of $60.11 worth of gasoline from that station just minutes before—a theft reportedly committed by a man matching Black’s description and driving a maroon Toyota Tundra, license number 15FL05, not exactly matching the correct number, 15FLD5.

            Black was arrested by Graham, and convicted by a jury, for theft of property, of less than $1,500.00, with two prior convictions.  The trial court assessed punishment, sentencing Black to two years’ confinement in a state-jail facility.  Black appeals, asserting only ineffective assistance of his trial counsel.  We affirm the trial court’s judgment.

            The evidence in this case consists of the testimony of the attendant operating the filling station and the arresting officer.  The record shows that the attendant called police, stating that a person in a maroon Toyota Tacoma^[1] had driven off without paying for $60.11 of gasoline.  He reported that the truck bore license number 15FL05.  Graham came to the station and spoke with the attendant, who informed him that the vehicle was a maroon Toyota Tundra pickup and that the driver was a black male in his mid-forties with a mustache.  While talking to the attendant, Graham saw a truck matching that description driving on Lamar Avenue in front of the station.

            Graham stopped the vehicle driven by Black—a Toyota Tundra, license number 15FLD5.  The officer checked the gas gauge, which showed the tank was full, and then took Black to the station, where the attendant, without hesitation, identified him as the thief.

            On appeal, Black argues that his trial counsel was constitutionally ineffective in failing to object to various pieces of evidence used at trial:  a “showup” identification of Black at the police station, identification of Black resulting from an allegedly unlawful arrest, in-court identification of Black, Graham’s allegedly “bolstering” testimony that the attendant identified Black on the spot, and the allegedly irrelevant audio portion of the police unit’s arrest video of Black—about seven minutes of Black’s repetitive cursing and racial comments.

            The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984).  To prevail on this claim, a defendant must prove by a preponderance of the evidence (1) that his or her counsel’s representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the defense.  Id. at 689; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).  To meet this burden, a defendant must prove that the attorney’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney’s deficiency, the result of the trial would have been different.  Ex parte Martinez, 195 S.W.3d 713, 730 (Tex. Crim. App. 2006); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  Under this standard, a defendant must prove that counsel’s representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.  Strickland, 466 U.S. at 686.

            “This requires a showing that counsel made errors so serious that counsel was not functioning as ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  Ex parte Nailor, 149 S.W.3d 125, 130 n.15 (Tex. Crim. App. 2004) (quoting Strickland, 466 U.S. at 687).

            No motion for new trial was filed in this case, and no post-trial hearings were conducted.  We thus have no record to explain why trial counsel conducted the trial as he did.

            Where an appellate record is silent as to why trial counsel failed to take certain actions, the appellant has failed to rebut the presumption that trial counsel’s decision was in some way reasonable.  See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).  The ineffectiveness of counsel is a matter that must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Smith v. State, 51 S.W.3d 806, 813 (Tex. App.—Texarkana 2001, no pet.).  In the absence of such a record, and in the lack of anything that would indicate such completely ineffective assistance as could be shown without such a record, we must overrule the point of error.

            We address the different allegations of ineffective assistance of counsel.  First, we examine the “showup” identification of Black.

            A “showup” has been defined as a “pretrial identification procedure in which a suspect is confronted with a witness to or the victim of a crime.  Unlike a lineup, a showup is a one-on-one confrontation.”  Black’s Law Dictionary 1506 (9th ed. 2009).  Identification procedures where a suspect is viewed singly by a witness have been widely condemned, but due process is not invariably violated by such a procedure.  Jackson v. State, 657 S.W.2d 123, 127 (Tex. Crim. App. 1983).  The question is, based on the facts of this particular case, whether the totality of circumstances shows a deprivation of due process.  Id.  In our analysis, we look to see whether there was a “very substantial likelihood” of misidentification, which would violate the right to due process and require exclusion of the identification.  Id. (quoting from Neil v. Biggers, 409 U.S. 188, 197 (1972), and Simmons v. United States, 390 U.S. 377, 384 (1968)).

            Neil and Jackson set out factors to be considered in assessing the reliability of the identification procedure.  One of those factors is the opportunity to view the perpetrator.  Here, the attendant watched the perpetrator pump the gas and was nearly run down by the driver as the attendant attempted to stop the vehicle.  Another factor is the degree of attention.  It is reasonable to conclude that the attendant was paying close attention to the driver during the “drive-off” confrontation.  Another factor is the accuracy of the description.  No discrepancies in the description of the perpetrator were shown to exist.  Another factor is the level of certainty of the identification.  The attendant was reportedly certain that Black was the driver, when Black was brought before her.  Finally, the length of time between the crime and the identification is a factor.  Although the time lapse here was not shown precisely, it appears to have been less than an hour.

            Based on these factors, an attorney could reasonably conclude that it would be unfruitful to seek to suppress the evidence and thus reasonably choose not to raise an objection based on the “showup.”  The failure to object to admissible evidence does not constitute ineffective assistance.  McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992).

            Next, we address the allegedly illegal arrest.  Black was stopped because his vehicle matched the description of the vehicle given by the attendant, and—with the understandable exception of the discrepancy between a “0” and a “D” in the number—the license plate matched as well.  That is an adequate reason for a stop.  Plus, the gas tank was full, and the physical appearance of the driver matched that given by the attendant.  Finally, Black was identified as the thief without hesitation by the attendant.  See Tex. Code Crim. Proc. Ann. art. 14.03(1)  (Vernon Supp. 2010) (peace officer may arrest without a warrant a person “found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some . . . breach of the peace”).  In this case, the vehicle identified as the instrumentality of the theft was a suitably “suspicious place.”  Based on these facts, a detention and subsequent arrest was supportable; and trial counsel could reasonably find no reason to object to the identification based on those grounds.

            Next, we examine the in-court identification.  Based on the scenario set out above, there would be little chance of succeeding in an objection to the in-court identification, and counsel could reasonably choose not to raise an objection that had little chance of success.

            But was there objectionable “bolstering” testimony?  Black argues that trial counsel should have objected to Graham’s testimony that the attendant identified Black on the spot as being improper bolstering of the attendant’s testimony identifying Black as the miscreant.  Bolstering generally refers to evidence that improperly supports the testimony of an unimpeached witness or adds credence or weight to prior evidence introduced by the same party.  State v. Balderas, 915 S.W.2d 913, 919 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d); see Rivas v. State, 275 S.W.3d 880, 886 & n.3 (Tex. Crim. App. 2009).^[2]

            In this case, it is reasonable to conclude that Graham’s testimony did not bolster the attendant’s testimony.  It provided proof of when the identification was made, with an indication of the certainty of the identification at that point in time.  Although it may have added credence to the identification, it also provided an additional piece of evidence that was helpful in light of the type of identification procedure used.  Thus, a “bolstering” objection could reasonably have been considered fruitless or could have been insufficient to preserve error.  The decision of counsel not to object on this basis thus has a rational basis.

            We turn, finally, to the audio recording of Black’s initial stop by Graham.  Black contends his trial counsel should have objected to the admission of the audio portion of the video made of Black when he was stopped.  His argument on appeal is that trial counsel should have made a relevancy objection.  Approximately seven minutes of the video consists of Black’s unimaginative and repetitive cursing and racial comments directed at Graham.

            Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.”  Tex. R. Evid. 401.  Relevant evidence is generally admissible.  It is not apparent how this evidence would be relevant, however.  Thus, it may very well have been objectionable.

            This record, however, contains nothing to reveal the reasoning of trial counsel in failing to object to its admission. Where an appellate record is silent as to why trial counsel failed to take certain actions, Black has failed to rebut the presumption that trial counsel’s decision was in some way reasonable.  See Mata, 226 S.W.3d at 431.  In this case, there is no record at any level to indicate why counsel chose to take or declined to take any of these actions.

            We overrule the sole contention of error and affirm the judgment of the trial court.

 

 

                                                                                                Josh R. Morriss, III

                                                                                                Chief Justice

 

Date Submitted:       December 15, 2010               

Date Decided:         December 16, 2010

 

Do Not Publish

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^[1]The recorded 9-1-1 call had the attendant reporting the truck as being a Toyota Tacoma.  Universally, thereafter, the truck was referred to as a Toyota Tundra.

^[2]The court in Rivas explained that “[w]hile the term ‘bolstering’ is slowly dying as an objection on its face, it has not yet expired, despite the fact that the term itself failed to survive the adoption of the Rules” and indicating that “bolstering” has ties to Rule 613(c) of the Texas Rules of Evidence, which involves prior consistent statements and reiterates principles of hearsay.  Tex. R. Evid. 613(c).  Bolstering occurs when the testimony’s sole purpose is to enhance the credibility of a witness or source of evidence, without substantively contributing “to make the existence of [a] fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.”  Some courts have held that a general “bolstering” objection is insufficiently specific to preserve error because it does not sufficiently inform the trial court of the nature of the objection.  In re J.D., 195 S.W.3d 161, 183 (Tex. App.—San Antonio 2006, no pet.); Montoya v. State, 43 S.W.3d 568, 573 (Tex. App.—Waco 2001, no pet.).

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