IN THE
TENTH COURT OF APPEALS
No. 10-00-349-CR
GREG WILLIAM HOLDEN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 1999-360-C
O P I N I O N
The State alleged that, in the course of being arrested, Greg William Holden head-butted one of the arresting officers. He was indicted for intentionally, knowingly, or recklessly causing bodily injury to a police officer, a third degree felony. Tex. Pen. Code Ann. § 22.01(b)(1) (Vernon Supp. 2002). A jury convicted him and assessed punishment at four years in prison.
On appeal, Holden complains that:
1. The trial court erred by refusing to give a jury instruction on “necessity,” in that Holden’s actions in struggling with police, during which the head-butting may have occurred, were necessary to keep from being placed in the patrol car where he feared he would have a heart attack.
2. Negative admonishments by the judge to Holden and his father when they testified were, taken together, unfairly prejudicial, because the admonishments implied to the jury that the court did not find the witnesses credible.
3. The court should have allowed testimony about Holden’s telephone conservation with a police detective, which occurred just before his arrest, because it was not hearsay.
We will affirm the judgment.
Issue One
Holden requested a jury instruction on the defense of “necessity.” Tex. Pen. Code Ann. § 9.22 (Vernon 1994). This defense justifies criminal conduct when the defendant violates the literal language of a criminal statute to avoid a harm greater than that caused by committing the crime. Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999). Holden said he struggled with the officers, during which he may have head-butted one of them, because he was afraid if he was placed, handcuffed, into the patrol car, he would not get enough air and would have a heart attack. Holden had a history of heart problems.
A trial court must charge the jury on any defensive issue raised by the evidence, "regardless of its substantive character." Brown v. State, 955 S.W.2d 276, 279 (Tex. Crim. App. 1997); McGarity v. State, 5 S.W.3d 223, 226 (Tex. App.—San Antonio 1999, no pet.). The evidence supporting the defense need not be persuasive to the court:
A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. The defendant's testimony alone may be sufficient to raise a defensive theory requiring a charge.
Brown, 955 S.W.2d at 279 (quoting Williams v. State, 630 S.W.2d 640, 643 (Tex. Crim. App. 1982)).
This rule is designed to insure that the jury, not the judge, will decide the relative
credibility of the evidence. [citation omitted] When a judge refuses to give an instruction
on a defensive issue because the evidence supporting it is weak or unbelievable, he
effectively substitutes his judgment on the weight of the evidence for that of the jury.
[citation omitted] The weight of the evidence in support of an instruction is immaterial.
Id. (quoting Woodfox v. State, 742 S.W.2d 408, 409-10 (Tex. Crim. App. 1987)).
However, to claim “necessity,” the defendant must first admit violating the criminal statute, after which he offers “necessity” as a justification. Young, 991 S.W.2d at 838. A defendant cannot establish that his conduct was justified without first admitting that the predicate act, i.e., the crime, occurred. Maldonado v. State, 902 S.W.2d 708, 712 (Tex. App.—El Paso 1995, no writ) (citing Trotty v. State, 787 S.W.2d 629, 630 (Tex. App.—Fort Worth 1990, no writ)). The merits of the defense are assessed from the standpoint of the defendant; therefore, he must admit to committing the offense and then explain why he did so, i.e., the necessity. Leach v. State, 726 S.W.2d 598, 600 (Tex. App.—Houston [14th Dist.] 1987, no writ).
Here, when asked by the prosecutor: “Did you hit anybody’s head with your head?,” Holden answered: “Not at all, that I’m aware of, no. sir.” However, the next day, when asked by his own counsel: “[I]s it possible that, at that time, that you collided heads with Officer Etchison?,” Holden replied: “It’s possible. [Q] Do you remember colliding with him? [A] Not at all.” But then on cross-examination, Holden again said: “To the best of my knowledge, no I didn’t [butt heads with the officer].” The State argues this is not a sufficient admission of the offense to invoke the “necessity” defense. Holden urges us, without authority, to adopt a new rule that when the defendant’s testimony is “in between” admission and denial, the defense may apply.
Holden’s argument does not comport with well-established case law. See cases cited supra. The defendant “must admit he committed the offense and then offer necessity as a justification.” Young, 991 S.W.2d at 839. In Young, the defendant raised issues about whether he had the requisite “intent” to commit the offense and whether he performed the actions the State alleged. Id. The Court held he was not entitled to claim the protection of “necessity.” Id. But Holden never unequivocally admitted head-butting the officer. His testimony left open the possibility that he did not. He also called two eye-witnesses to testify they did not see a head-butting. In addition, his lawyer argued in closing that the evidence did not support a finding of a head-butting. These facts do not constitute the kind of admission of the offense required by the “necessity” defense.
We overrule issue one.
Issue Two
During the testimonies of Holden and his father, the trial court had to repeatedly admonish them not to state hearsay and make non-responsive comments. Eventually the court’s admonishments became harsh. Holden complains that the harsh admonishments violated article 38.05 which prohibits the court from “mak[ing] any remark calculated to convey to the jury his opinion of the case.” Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979).
Holden did not object during trial that the court was commenting on the credibility of the witnesses, nor did he make any other objections about the court’s admonishments. We will not review an unpreserved complaint. Tex. R. App. P. 33.1(a).
Alternatively, Holden argues that the court committed fundamental error, and therefore the complaint need not have been preserved. Tex. R. Evid. 103(d). It is true that comments by a judge before the jury which taint the presumption of innocence constitute fundamental error. Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000). However, we have reviewed this record, and although we do not condone all of the comments made in the presence of the jury, we do not find that the court voiced, expressly or impliedly, an opinion about whether Holden committed the crime. Therefore, any error was not fundamental.
We overrule issue two.
Issue Three
Just before he was arrested, Holden was having a conversation on his cell phone with a police detective. He tried to get the arresting officers to talk to the detective, but they refused. At trial, Holden attempted through several witnesses to introduce testimony about his conversation with the detective, but the trial court granted the State’s hearsay objections. Holden claims he was not offering the conversation to prove the truth of the matters asserted in it, and therefore it was not hearsay.
Holden did not make an offer of proof, and we do not know from the reporter’s record what was said during the conversation. When the complaint on appeal is about the court’s exclusion of evidence, error cannot be found unless the appellant made known to the court the substance of the evidence, except when the substance is apparent from the context in which the questions were asked. Tex. R. Evid. 103(a)(2). Neither occurred here. Therefore, the complaint was not preserved, and we will not review it. Tex. R. App. P. 33.1(a)(1)(B).
We overrule issue three.
Conclusion
Having overruled Holden’s three issues, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed April 3, 2002
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[CR25]
n with the indictments upon which they were subscribed. These stipulations which embraced every element of the offenses charges were legally and factually sufficient to support Appellant’s pleas of nolo contendere to all counts of aggravated sexual assault of a child under 14, as alleged in the two indictments. Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996); Wright v. State, 930 S.W.2d 131, 132 (Tex. App.—Dallas 1996, no pet.); Burger v. State, 920 S.W.2d 433, 436 (Tex. App.—Houston [1st Dist.] 1996, pet ref’d).
Moreover, the pleas of nolo contendere waived all non-jurisdictional defenses including contention as to the insufficiency of the evidence. Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986).
Points 1 through 4 are overruled in both cases.
Point 5 asserts in both cases the trial court erred in denying Appellant’s motion for a new trial because the motion for new trial lacked a verification and an affidavit. Appellant’s motions for a new trial in both cases were signed pro se and contained the following verification:
I understand under the penalties of perjury and under the penalties of perjury I swear that the foregoing statements are true and correct to the best of my knowledge. (28 U.S.C. 1746)
Section 132.003, Texas Practice & Remedies Code, requires the declaration to be substantially as follows:
I being presently incarcerated in (Texas Department of Corrections Unit name or County Jail name) in County, Texas, declare under penalty of perjury that the foregoing is true and correct.
The affidavit made by Appellant “to the best of my knowledge” is a qualified verification and is insufficient. State v. Moore, 774 S.W.2d 711, 715 (Tex. App.—El Paso 1998, no writ); Guidry v. State, 896 S.W.2d 381, 387 (Tex. App.—Texarkana 1995, writ ref’d); DeGay v. State, 923 S.W.2d 847, 855-58, writ ref’d).
The trial court overruled Appellant’s motion for new trial on the basis that it lacked proper verification and on the merits of the motion. As will be demonstrated under points 6, 7 and 8, there was no merit to the motion for new trial.
Point 5 is overruled in both cases.
Points 6, 7 and 8 in both cases assert the trial court erred in overruling Appellant’s motion for new trial because Appellant received ineffective assistance of counsel: (1) in that counsel did not make an independent investigation of the case; (2) in that counsel represented to Appellant that he would receive probation or ten years in prison if he pled nolo contendere, and thus his pleas were not voluntary; and (3) in that counsel did not object to the pre-sentence investigation that contained matters produced by use of a plethysmograph.
The granting of a motion for new trial on the ground of ineffective assistance of counsel is a matter within the trial court’s discretion. Messer v. State, 757 S.W.2d 820, 827 (Tex. App.—Houston [1st Dist.] 1988, pet ref’d).
Strickland v. Washington, 466 U.S. 668 and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986), set the standards for analyzing a claim of ineffective assistance of counsel. These cases adopted a two-pronged analysis for claims of ineffective assistance. Under the first prong, the defendant must show that counsel’s performance was deficient by norms of the community to the extent that counsel failed to function as the “counsel” guaranteed by the Sixth Amendment to the U.S. Constitution. Strickland, at 687. Under the second prong the defendant must show that counsel’s performance prejudiced the defense. To show prejudice the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. The burden of proving ineffective assistance is on the defendant and it must be proved by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). And when reviewing a claim of ineffective assistance, a court must indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action or omission “might” be considered sound trial strategy. Jackson V. State, 877 S.W.2d 768 (Tex. Crim. App. 1994).
The standard for evaluating a punishment phase “ineffective counsel” claim is the reasonably effective assistance standard of Ex parte Duffy, 607 S.W.2d 507, 516 (Tex. Crim. App. 1980). The test is whether counsel was reasonably likely to render effective assistance and whether counsel reasonably rendered effective assistance.
While the reviewing court looks to the totality of the representation, under some circumstances a single error or omission by counsel can constitute ineffective assistance. Ware v. Ware, 875 S.W.2d 432, 434-36 (Tex. App.—Waco 1994, pet ref’d). And when the record is void of anything which reflects counsel’s reasoning, or lack thereof, to rebut the presumption that counsel’s action constituted trial strategy, a claim of ineffective assistance of counsel must fail. Jackson v. State, supra at 771.
Appellant asserts in point 6 that counsel did not investigate the facts of his case, but at the hearing on his motion for new trial, Appellant testified that he did not know whether counsel had investigated his case or not, and that he based his contention on the fact that counsel had never discussed the details of his investigation with him.
Appellant asserts in point 7 that counsel rendered ineffective assistance by representing to him that he would receive probation or a ten-year prison sentence, and thus his pleas were not voluntary.
Appellant testified at the hearing on his motion for new trial that his counsel told him he would receive probation or at most ten years in prison if he pled nolo contendere.
Defendant was admonished by the trial judge on the range of punishment if he was found guilty, and acknowledged at the hearing on his motion for new trial that he understood at the time of his pleas that final decision as to punishment was with the judge and not his counsel.
Statements made to Appellant by his counsel about the punishment he might expect if he pled no contest simply constituted counsel’s predictions, albeit erroneous, about the logical outcome of certain trial strategy. In view of the clear admonitions by the trial judge before the pleas, which Appellant and his counsel admitted they understood, Appellant cannot credibly contend his plea was involuntary and that he was denied effective assistance of counsel. Messer v. State, 757 S.W.2d 820, 826 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) is almost identical to the instant case on its facts and in its holding.
Appellant has failed to show that the trial court abused its discretion in overruling his motion for new trial on the grounds of ineffective assistance of counsel in points 6 and 7.
Appellant contends in point 8 that his counsel was ineffective for failing to object to the pre-sentence investigation report that contained matters produced by use of a plethysmograph.
Appellant did not raise this contention in his motion for a new trial. His trial counsel was not a part of his defense when the motion for new trial was prepared or litigated. In such situation failure to raise the contention of ineffective assistance of counsel in the motion for new trial waives the same. Henderson v. State, 962 S.W.2d 544, 558 (Tex. Crim. App. 1997).
Points 6, 7 and 8 in both cases are overruled.
The judgments in both cases are affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Davis,
Justice Cummings and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed December 2, 1998
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