In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-04-120 CR
____________________
CHARLES ELVIS RABY, Appellant
V.
THE STATE OF TEXAS, Appellee
Liberty County, Texas
Trial Cause No. CR24500
A jury found Charles Elvis Raby guilty of aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). The trial court sentenced Raby to sixty years' confinement in the Texas Department of Criminal Justice, Institutional Division. After the instant appeal was perfected, appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), concluding there was no arguable error to support an appeal. Raby filed a pro se brief raising eight issues.
In his first issue, Raby claims he did not receive effective assistance of counsel because trial counsel deprived him of the possibility of a probated sentence. The record reflects that before voir dire began, defense counsel informed the trial court, "we're going to go to the Judge for the punishment." The trial court questioned Raby, asking, "You're going to ask that the Court assess your punishment?" Raby replied, "Yes." The record does not reflect the reason for the decision.
The cases upon which Raby relies in support of this issue are inapplicable and distinguishable upon their facts. In Stone v. State, 751 S.W.2d 579, 582-83 (Tex. App.-- Houston [1st Dist.] 1988, pet. filed), trial counsel testified that before the guilt-innocence stage, he advised appellant to elect to have the court assess punishment if appellant was found guilty. The record in Stone reflected that appellant filed a motion for probation upon counsel's advice. After the guilty verdict and before the punishment stage, trial counsel remembered the trial court could not grant probation. Id. at 582-83. Trial counsel testified that appellant relied on his recommendation to forego sentencing by the jury, and appellant testified that he would not have elected to have punishment assessed by the court had he known he was ineligible for probation if sentenced by the court. Id. at 583. The record in the case at hand fails to show that Raby was advised incorrectly by his counsel.
In Turner v. State, 755 S.W.2d 207, 208 (Tex. App.--Houston [14th Dist] 1988, no pet.), appellant's defense evidenced his desire to obtain a probated sentence if the jury found him guilty. Appellant filed a verified Motion for Probation and an election for the jury to assess punishment; successfully challenged five members of the jury panel for cause because of their inability to consider a probated sentence; and took the stand during the punishment hearing to establish his eligibility for probation, after withdrawing his request to have the jury assess the punishment. Id. Furthermore, trial counsel concluded his defense argument by asking the court to grant either deferred adjudication or shock probation. Id. The court on appeal found that "[w]ithout a doubt, appellant's defense counsel was unaware that the trial court was statutorily prohibited from delivering a probated sentence to appellant. Without this knowledge, appellant was not adequately informed of the ramifications of the withdrawal of his request to be sentenced by the jury." Id. at 208-09. The record before this Court does not indicate that counsel was unaware of the statutory prohibition.
In the present case, Raby does not assert, nor does the record reflect, that trial counsel advised him the trial court could order community supervision. A motion for probation was filed one month before trial but the jury panel was never questioned on whether it could consider community supervision and trial counsel did not request it from the trial judge. Unlike Turner or Stone, the record does not reflect that either trial counsel or appellant held the belief that the judge could order community supervision, and therefore does not demonstrate such an erroneous belief was the basis for the decision to have the trial court assess punishment. We have no record on appeal explaining the reasons for defense counsel's recommendation (assuming, without deciding, that counsel made such a recommendation). Such a record is usually developed in a motion for new trial hearing or on writ of habeas corpus. See Redmond v. State, 30 S.W.3d 692, 698 (Tex. App.--Beaumont 2000, pet. ref'd). Absent evidence in the record of counsel's thought processes and trial strategy, the presumption of effectiveness cannot ordinarily be overcome. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Issue one is overruled.
Issue two asserts the trial court erred in refusing to submit the lesser-included offense of robbery in its charge to the jury. A two-prong test must be met before a jury charge instruction on a lesser-included offense is required. See Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense. Id. (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). Clearly, robbery is a lesser-included offense of an aggravated robbery alleging the use of a firearm as a deadly weapon as the aggravating element. Thus the first prong is satisfied.
As to the second prong, there is no evidence that would permit a rational jury to find Raby guilty only of the lesser offense. There is no evidence in the record that a firearm was not used during the course of the robbery and the victim's gunshot wounds establish otherwise. Because the only affirmative evidence adduced at trial germane to the issue reflected that a firearm was used, we cannot conclude a rational jury could have found to the contrary. The second prong has not been met. Issue two is overruled.
Raby's third issue contends his rights were violated because he did not waive his right to have a jury determine punishment in writing. The requirement of Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon Supp. 2005) that a written waiver be on file does not apply when a defendant elects not to have a jury assess punishment. See Martin v. State, 753 S.W.2d 384, 388 (Tex. Crim. App. 1988); Medina v. State, 770 S.W.2d 54, 55 (Tex. App.--Texarkana 1989, no pet.). Issue three is overruled.
Issue four complains the trial court erred in allowing the State to introduce evidence in violation of Rule 404(b). See Tex. R. Evid. 404(b). The evidence Raby complains of was admitted during the punishment phase. Under section 3 of article 37.07, after a finding of guilty, any extraneous offense or bad act evidence is expressly admissible without regard to Rule 404. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2005); Fowler v. State, 126 S.W.3d 307, 310 (Tex. App.--Beaumont 2004, no pet.); Tex. R. Evid. 404. Issue four is overruled.
Issue five argues trial counsel was ineffective in failing to file a pre-trial motion to suppress evidence obtained with a defective search warrant. The warrant in question is not contained in the record on appeal. Accordingly, nothing is presented for our review. Issue five is overruled.
In his sixth issue, Raby claims the trial court erred in failing to rule on trial counsel's request to strike a statement made by the victim and in failing to instruct the jury to disregard it. The record reflects that after the trial court sustained trial counsel's objection to the State's question, trial counsel asked it be stricken and the jury instructed to disregard it. Before the trial court ruled on the request, the State withdrew the question. Trial counsel did not re-urge his request. To preserve error, counsel must pursue the objection to an adverse ruling. See Tex. R. App. P. 33.1; Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). This complaint was not pursued to the level of an adverse ruling, therefore it was not preserved for our review. Schumacher v. State, 72 S.W.3d 43, 47 (Tex. App.--Texarkana 2001, pet ref'd). Issue six is overruled.
Issue seven contends the trial court erred in admitting State's Exhibit 17-B into evidence. The exhibit is a submission form that accompanied evidence to be tested by the laboratory. It contains nothing of substance, such as any test results. Raby argues the exhibit was inadmissible hearsay. However, there is nothing on the form that was offered for the truth of the matter asserted. See Tex. R. Evid. 801(d). Issue seven is overruled.
Raby's final issue asserts trial counsel was ineffective in failing to object to the admission of State's Exhibit 18, a laboratory report. Raby relies on Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990), in arguing that the report was inadmissible. In Cole, the Court of Criminal Appeals held it error to admit a chemist report upon the testimony of another, not the author. Id. at 805-06. In the instant case, the report was prepared by Kristi P. Wimsatt, a criminalist with the Texas DPS Houston Laboratory. Wimsatt appeared at trial and testified regarding the report. Accordingly, Cole does not apply. Moreno v. State, 2003 WL 22351320, at *2 (Tex. App.--Beaumont Oct. 6, 2003, no pet.). Issue eight is overruled.
We find no arguable error in our review of the clerk's record and the reporter's record. Therefore, we find it unnecessary to order appointment of new counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The issues raised in appellant's pro se brief are overruled. The judgment of the trial court is AFFIRMED.
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CHARLES KREGER
Justice
Submitted on February 10, 2005
Opinion Delivered March 30, 2005
Do not publish
Before McKeithen, C.J., Gaultney, and Kreger, JJ.