In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00180-CR
______________________________
RONI A. MCKINNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 35845-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Roni A. McKinney, appellant, has filed with this Court a motion to dismiss her appeal. The motion is signed by McKinney and by her counsel in compliance with Tex. R. App. P. 42.2(a). As authorized by Rule 42.2, we grant the motion. See Tex. R. App. P. 42.2.
Accordingly, we dismiss the appeal.
Bailey C. Moseley
Justice
Date Submitted: November 25, 2008
Date Decided: November 26, 2008
Do Not Publish
>
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 19023
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross
O P I N I O N
Robert Owen Chancellor appeals from his conviction by a jury for aggravated robbery, with a deadly weapon finding, and with a finding of true for two prior felony convictions. The jury assessed punishment at eighty years' imprisonment. In several points of error, Chancellor raises one jury charge instruction issue and also complains he received ineffective assistance of counsel.
Background
The sufficiency of the evidence is not raised. For context, however, we briefly summarize the evidence. A man came into a shop and robbed the female shopkeeper at knifepoint. A female customer came in during the robbery. The robber stabbed this customer with the knife as he was forcing her into a bathroom to lock her up with the shopkeeper. In the meantime, the shopkeeper called the police on a cordless telephone. Both the shopkeeper and the customer identified Chancellor as the robber at trial. The descriptions given by both witnesses to police, however, varied on several points from Chancellor's actual appearance.
Jury Instruction on Good Conduct Time
Chancellor first contends the trial court erred by giving a jury instruction about good conduct time when he was not eligible for the application of any such credit to his sentence. He contends that, given the fact he was not eligible for good conduct time, the information provided to the jury was at best irrelevant, and at worst positively misleading because he was not eligible for mandatory supervision. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). The contention is necessarily based on alleged violations of due process and fairness. An "as applied" challenge asserts that, as applied to a defendant in his or her situation, the statute is unconstitutional. Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989); Parker v. State, 119 S.W.3d 350 (Tex. App.—Waco 2003, no pet. h.); Legere v. State, 82 S.W.3d 105, 111 (Tex. App.—San Antonio 2002, pet. ref'd).
As acknowledged by counsel, the Texas Court of Criminal Appeals has recently addressed the issue and held there is no "as applied" violation of due process under either the United States or Texas Constitution when a charge recites the statute as directed by the Legislature. Luquis v. State, 72 S.W.3d 355, 364–65 (Tex. Crim. App. 2002). Thus, whether the statute actually applies, could apply, or, as in this case, absolutely could not apply—and thus arguably be affirmatively misleading to the jury—a trial court does not err by giving the statutory charge. We note that the charge in this case comes close to conforming to the statutory language, except that one phrase was omitted from the last paragraph:
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
(Lined out section was omitted from the instruction.)
The court in the Luquis opinion considered: (1) the instruction in the context of the entire charge; (2) whether the record showed the jury discussed, considered, or attempted to apply what it was told about good conduct time and parole; (3) that the record did not give any indication, such as a jury note, that the jury was confused about the possible application of good conduct time in the case; and (4) the punishment the jury assessed. Id. at 366–67. The court also relied on the precept stating that a reviewing court may assume a jury followed its instructions. Id. at 366. The court concluded Luquis had not shown the instruction was "calculated to mislead this jury or that there is a reasonable probability that it did mislead this jury." Id. at 367. It was not error, therefore, to submit the instruction, and the submission did not violate due process. Id. at 368.
Applying the Luquis factors to the record and charge in this case, there is no principled reason to distinguish that situation from this one. The instruction given in this case actually omitted the statutory language that tells the jury it may consider the existence of the parole law and good conduct time. But, by the same omission, the instruction affirmatively told the jury it may consider (instead of not to consider, as required by the statute) "the existence to which [sic] good conduct time may be awarded to or forfeited by this particular defendant." The syntax of this instruction suggests the omission was a scrivener's error rather than an intentional omission. Nonetheless, the instruction did inform the jury, in accordance with the statute, that it was not to consider the manner in which the parole law may be applied to this particular defendant. We, like the Texas Court of Criminal Appeals in Luquis, assume the jury followed this instruction. See id. at 366. Further, Chancellor has not directed us anywhere in the record showing that the jury discussed, considered, or attempted to apply what it was told about good conduct time and parole, or showing any indication the jury was confused about the possible application of good conduct time in the case. And, while the punishment assessed was on the high end of the scale, the jury did not assess life imprisonment as requested by the State.
Applying the Luquis factors, we are constrained to conclude there was no demonstration of a violation of due process "as applied" in the instruction given. Chancellor's related points of error are overruled.
Ineffective Assistance of Counsel
Chancellor next contends trial counsel was ineffective. 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, an appellant 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 his or her defense. Id. at 687; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that his or her 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. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant 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.
Our review of counsel's representation is highly deferential; we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex. App.—Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
As far as strategic or tactical reasons for counsel's action or inaction, in the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We will not conclude the challenged conduct constitutes deficient performance unless the conduct was so outrageous no competent attorney would have engaged in it. Id.; see Thompson, 9 S.W.3d at 814.
Chancellor contends counsel was ineffective because he 1) unnecessarily impeached his own witness (Chancellor's wife); 2) failed to object to nonresponsive answers from the victims (that they told their story in narrative form without objection); 3) failed to object to the "good conduct" instruction issue discussed above; and 4) did not effectively cross-examine the witnesses about the differences between their descriptions of the robber and his actual appearance.
Impeaching of own witness
Trial counsel asked Chancellor's wife if she had ever had a criminal charge brought against her. She replied yes, that in 1991 her boyfriend (not Chancellor) had some marihuana seeds, and she and her boyfriend were both taken to jail. There is no indication of a final conviction, and possession of marihuana has been held to not be a crime of moral turpitude. See Ortiz v. Furr's Supermarkets, 26 S.W.3d 646, 655 (Tex. App.—El Paso 2000, no pet.). Even had there been a final conviction, the charge would have been a misdemeanor, not one of moral turpitude, and impeachment would be improper. See Tex. R. Evid. 609(a). Further, the only date elicited concerning this offense was one over twelve years before trial. See Tex. R. Evid. 609(b). Thus, it appears certain the State could not have used this evidence to impeach the witness. The trial tactic of bringing the bad out first before the state has an opportunity to do so is not applicable.
It is possible, however, that, for reasons known only to Chancellor's counsel, it was important for the jury to know that the witness did not otherwise have a criminal record of any sort, that her single arrest was over eleven years ago, and that it was actually for something her then-boyfriend had in their house. Under the extremely lenient standard of Strickland, we cannot conclude this was necessarily error from this record, and even if it were, it is not, standing alone, sufficiently destructive to undermine our confidence in the adversarial system.
Narrative testimony
Chancellor next complains counsel did not object to answers by the State's witnesses that turned into narrative soliloquies instead of maintaining the question/answer format that is appropriate to the examination of a witness. Counsel directs our attention to four specific instances where, after being asked a generic question about the sequence of events that occurred during the robbery, the shopkeeper, Karie Raulson, was permitted to speak without interruption for extended periods of time. In the two lengthiest narratives, Raulson described the events of the robbery in graphic detail.
It is apparent counsel did allow the victim to "tell her story" at great length, without making any effort to require the State to elicit the information in a question/answer format. Arguably, her narrative testimony was more emotionally gripping than it would have been had her account been in question/answer form.
Nevertheless, there are several reasons why counsel might have decided to allow the testimony to continue without objection. He could have thought that to allow the State to form its questions would simply extend the amount of time the jury would be exposed to the particular evidence, and therefore increase the emphasis on the evidence, or that he would unnecessarily irritate the jury by continually interrupting the obviously emotional testimony of the victim while she relived an armed attack. It is reasonable to think that counsel would not want to make the victim any more sympathetic than she already was, or possibly that he remained silent in hopes she would forget some portion of the event in the absence of continual pointing by the State at the desired information.
We find this tactic by trial counsel, like whatever tactic prompted him to impeach his own witness, of highly questionable value. It is not one, however, we can entirely disregard. And again, under the extremely lenient standard of Strickland, we cannot conclude from this record this was necessarily error or actions taken without reason, and even if it were, it is not, standing alone, sufficiently destructive to undermine our confidence in the adversarial system.
The good-conduct instruction that could not apply to this case
We have already discussed the "good-conduct" instruction. As giving the instruction was not error, counsel's failure to object was not error, and we need not consider that matter.
Ineffective cross-examination on identity
Chancellor finally complains trial counsel's cross-examination was inadequate in connection with the testimony identifying him as the robber. This contention is largely based on areas that appellate counsel does not believe were adequately explored.
The contemporaneous descriptions of the robber by the two victims were not consistent in several respects. The shopkeeper, Raulston, described the robber as a white male, fifty-three years old, 5'6" to 5'8" tall, slim, with gray wavy hair that was combed back, and with a full gray mustache. She said his teeth were stained and dirty. The customer, Jenna Hackney, described the robber as forty-five years old, 5'10" tall, thin, with puffy gray hair combed back and a teardrop-shaped mole near his right eye. The evidence showed Chancellor was actually thirty-nine years old, between 6'2" and 6'3" tall, had two missing front teeth, and had never had a mustache.
Chancellor had an alibi, in the form of a telephone call to his employer, on the day of the robbery, stating he was not coming to work because of illness. His wife testified he was at home in bed when she arrived home from work at 3:45 p.m. on the day of the robbery. She also testified he had two missing front teeth.
Chancellor's former employer, Elizabeth Anthony of Anthony Roofing, and a coworker, Debbie Nelson, both testified Chancellor had never had a mustache.
Counsel first points out a lack of cross-examination about the existence of a mustache. Raulson described the attacker as having a gray mustache. Hackney was not asked whether she had described him as having a mustache, and counsel did not question the officer who had created a computer composite sketch based on Hackney's description as to why no mustache appeared on the composite. However, counsel did later point out the discrepancy between Raulson's testimony that Chancellor had a mustache and the other evidence that he had never had a mustache. Appellate counsel also argues trial counsel should have more vigorously pointed out the mismatch in the victims' descriptions of the robber, despite their similar opportunities to observe him at extremely close range.
Counsel also points out that the victims were not asked whether the composite looked like the assailant and that trial counsel did not address whether there was agreement between the victims that the attacker had a "teardrop shaped mole" or tattoo under one eye, or why the police went looking for someone with two tattoos instead of one.
The missing front teeth were also of some interest, since that would be quite visible. Raulson had described the robber as having "stained" teeth, but then was never asked whether he had all of them. Counsel also did not ask Hackney about his teeth or lack thereof.
It appears all these areas were appropriate for more questions than were asked by trial counsel. However, in the absence of any information to reflect what the answers to these questions would have been, it is difficult for a reviewing court to conclude counsel erred by failing to ask them. Without this information, we can only recognize that the answers could as easily have been harmful as helpful to the defendant.
When ineffective assistance is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Freeman v. State, No. 2156-01, 2003 WL 22510582 (Tex. Crim. App. Nov. 5, 2003). Although some claims may be disposed of on direct appeal where "trial counsel's ineffectiveness is so apparent from the record," Massaro v. United States, 538 U.S. 500 (2003); Freeman, 2003 WL 22510582, it appears from the court's statements that such situations are quite rare. See Freeman, 2003 WL 22510582.
We cannot conclude under this record that counsel's actions were necessarily error or actions taken without reason. Even if they were, they are not sufficiently destructive to undermine our confidence in the adversarial system. The contention of error is overruled.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: February 5, 2004
Date Decided: February 18, 2004
Do Not Publish