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Opinion filed March 6, 2008
In The
Eleventh Court of Appeals
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No. 11-06-00121-CR
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DONALD SAMUEL CAMPBELL, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 118th District Court
Martin County, Texas
Trial Court Cause No. 1382
M E M O R A N D U M O P I N I O N
The jury convicted Donald Samuel Campbell of attempted aggravated sexual assault and assessed his punishment at confinement for ten years and a fine of $10,000. Campbell appeals. We affirm.
Issues
Appellant presents four issues for review. In the first two, he complains of the trial court=s exclusion of evidence. In the third issue, appellant complains that he was improperly impeached with a prior conviction. In the fourth issue, appellant argues that he was denied effective assistance of counsel at trial.
Background Facts
Appellant was charged with and convicted of attempting to sexually assault Katrena Dawn Chisum and of using or exhibiting a firearm in the commission of the offense. The offense occurred at the residence where Matthew David Wilcox lived with his parents, who were Chisum=s aunt and uncle. On the day of the incident, Chisum was moving into the Wilcox residence, and Wilcox was working on a car. Wilcox was unable to fix the car, so he sought the assistance of appellant, his friend. Appellant helped Wilcox; drank some beer; and, at some point, was introduced to Chisum. After the car was fixed, appellant=s wife arrived to give appellant a ride home. Later that evening, appellant walked back to the Wilcox residence and startled Wilcox and Chisum, who were sitting in the shop talking. Chisum went inside while Wilcox and appellant drank some more beer and went rabbit hunting. Wilcox and appellant returned to the Wilcox residence, went inside, had a snack, and sat down to watch television. Wilcox fell asleep, but he woke up around 5:00 a.m. and saw appellant and Chisum on the porch. Chisum was smoking a cigarette, and appellant was holding Wilcox=s rifle. Although Wilcox thought this was odd, he was feeling sick at the time and just went to bed.
Chisum testified that she was in bed asleep when she was awakened by appellant, who was in bed behind her with his hand over her mouth. Appellant had taken off his pants and was wearing only underwear and a T-shirt. Appellant was holding a .22 rifle, which belonged to Wilcox. Chisum was terrified. Appellant tried to turn Chisum around and take her pants off. They wrestled and fell to the floor. Appellant kept asking Chisum if she would Abe with [him].@ Chisum tried to Ahumanize@ herself, and she finally got appellant to stop and talk to her. Appellant talked about his problems and his wife. Appellant apologized to Chisum, but then he threw her on the bed and tried again. During the incident, appellant was choking Chisum. Appellant quit when the nightstand got knocked over. Appellant was shaking, and he apologized again. They continued to talk, and eventually Chisum encouraged appellant to leave. Appellant put his pants on, unloaded the gun, and handed Chisum the bullets. Chisum put the bullets away, and they walked outside to smoke a cigarette. Appellant and Chisum remained on the porch talking until daybreak, at which time appellant walked home. As soon as appellant left, Chisum went to Wilcox=s room, woke him up, and told him what had happened. They called the police.
Chief Deputy Jerry Heflin and Sheriff Randy Cozart responded to the call. They verified that Chisum had some red marks around her neck. Sheriff Cozart testified that the marks looked like they had been made by hands with a choke hold squeezing the neck. Appellant was arrested at his house shortly thereafter, still groggy and smelling of alcohol.
Appellant=s version of the events is similar but deviates drastically at the point where he and Chisum get together. Appellant denied having a gun or using any kind of force and testified that Chisum came in the living room, woke appellant, and invited him to come to bed with her. After they got in bed, he attempted to roll over with her, and they fell off the bed. At that point, he realized that he was quite drunk, and he expressed concern over what they were about to do. Appellant got up and left the room. Chisum reportedly told appellant that he was an Aidiot for not doing anything.@ Afterward, they went to the porch and talked until daybreak. Appellant walked home.
Excluded Evidence
In the first two issues, appellant contends that the trial court abused its discretion by excluding evidence regarding Chisum=s mental state and the motive of appellant=s wife to testify against him. We review a trial court=s decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a ruling that lies within Athe zone of reasonable disagreement.@ Id.
In the first issue, appellant complains of the exclusion of evidence that Chisum suffered from depression and had suicidal tendencies. The record shows that, during the cross-examination of Wilcox, defense counsel asked Wilcox if he knew Chisum Awell enough to know about her contemplating suicide.@ The State objected to the lack of foundation and relevance. The trial court sustained the objection, and trial counsel then asked Wilcox if he knew Awhether or not that she suffered from depression.@ The State objected that the witness was not qualified to give such a medical conclusion and that the question was improper at that time. The trial court again sustained the State=s objection. No offer of proof or bill of exception was made.
Appellant contends that these questions were relevant to impeach the credibility of the witness. However, the questions were directed to Wilcox, not Chisum, and were asked prior to Chisum testifying. Thus, contrary to appellant=s argument, the questions were not relevant at the time they were asked. Chisum=s credibility was not yet in issue. Subsequently, when Chisum testified, appellant did not attempt to cross-examine Chisum with regard to her mental health. Moreover, any error in the exclusion of the evidence was not preserved for review because appellant did not make an offer of proof or a bill of exception or otherwise indicate what the excluded evidence would have shown. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) (error in the exclusion of evidence may not be urged unless the proponent perfected an offer of proof or a bill of exception); see Tex. R. Evid. 103(a)(2). Nothing in the record indicates that Chisum actually suffered from depression or had suicidal tendencies or that some nexus existed between Chisum=s mental health and her testimony at trial. Appellant=s first issue is overruled.
In the second issue, appellant complains of the exclusion of evidence showing his estranged wife=s motive to testify against him. Appellant contends that he should have been allowed to ask his wife about an affair that she had with another witness. The record shows that, at the time of trial, appellant and his wife were separated and that appellant was living with another woman and her four children. During direct examination, appellant=s wife admitted that she had told appellant she was having an affair with Wilcox, but she denied actually having such an affair. She testified at trial that she made the statement Ajust to get at@ appellant because he was living with another woman and her children and not supporting his own children. On cross-examination, appellant=s wife was asked whether she had also told the pastor at church that she was having an affair with Wilcox. The State objected that the information was privileged, and the trial court sustained the objection. Appellant made no offer of proof or bill of exception, and nothing in the record indicates what, if anything, appellant=s wife told her pastor.
Pursuant to Tex. R. Evid. 505, a confidential communication made to a member of the clergy is privileged. What appellant=s wife told her pastor would be covered by Rule 505. We note that the privilege can be waived by the voluntary disclosure of the privileged matter (such as the disclosure appellant=s wife made to appellant). Tex. R. Evid. 511. However, appellant did not urge waiver at trial or on appeal. The party seeking to benefit by a finding of waiver has the burden to show waiver. Carmona v. State, 941 S.W.2d 949, 953-54 (Tex. Crim. App. 1997). Because appellant did not urge or show that the privilege had been waived and because appellant did not perfect a bill of exception or make an offer of proof regarding the excluded testimony, we cannot hold that the trial court abused its discretion in sustaining the objection and excluding the testimony. See id.; Guidry, 9 S.W.3d at 153. Moreover, appellant=s wife=s animosity toward appellant was clear from her testimony at trial, and the exclusion of evidence that appellant=s wife may or may not have told her pastor that she was having an affair with Wilcox was not harmful under Tex. R. App. P. 44.2. Thus, the error, if any, is not reversible error. Appellant=s second issue is overruled.
Impeachment of Appellant
In his third issue, appellant argues that the trial court erred in allowing appellant to be impeached with the prior burglary conviction in violation of Tex. R. Evid. 609(c)(2). Pursuant to Rule 609(c)(2), evidence of a prior conviction is not admissible to impeach a witness if the witness has satisfactorily completed probation for that offense and has not been convicted of a subsequent felony or crime of moral turpitude.
The record in this case shows that it was appellant, not the State, who first alluded to the prior conviction: the third question asked by trial counsel during the direct examination of appellant was, AMr. Campbell, in '92 you had a charge against you for burglary of a habitation?@ Appellant responded, AYes.@ During cross-examination by the State, appellant did not object that his impeachment violated Rule 609(c)(2) or that the burglary conviction was otherwise inadmissible for impeachment purposes. The only objection made by appellant with respect to testimony about the burglary conviction was a general objection to a question indicating that appellant Acouldn=t live out probation.@ Prior to the objection, appellant had already confirmed on cross-examination that he was convicted at the age of eighteen and that he went to the penitentiary at the age of nineteen. Appellant did not timely object and did not object on the grounds that he urges on appeal; therefore, he failed to preserve his complaint for review. Tex. R. App. P. 33.1(a). The third issue is overruled.
Effectiveness of Counsel
In his final issue, appellant contends that he received ineffective assistance of counsel at trial because counsel failed to file a motion to quash as to the enhancement, failed to offer proof as to the excluded testimony, presented evidence of an otherwise inadmissible burglary conviction, failed to object that Rule 609(c)(2) barred appellant=s impeachment with the prior conviction, failed to request a jury charge on the lesser included offense of attempted sexual assault, allowed appellant to plead true to the enhancement despite its unavailability, and failed to object to the pen packet. In order to determine whether trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In assessing counsel=s performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel=s perspective at the time. We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508‑09 (Tex. Crim. App. 1991).
Most of the deficiencies that appellant points out relate to his 1992 conviction for burglary.[1] This conviction was alleged as an enhancement in the indictment. It was first brought to the jury=s attention during the guilt/innocence phase of trial by trial counsel during his direct examination of appellant. Appellant was also impeached with this conviction during the State=s cross-examination of appellant. During the punishment phase of trial, the enhancement paragraph of the indictment was read to the jury, appellant pleaded true to the enhancement allegation, and the corresponding pen packet was admitted into evidence without objection. Subsequently, on rebuttal questioning by his counsel, appellant testified as follows:
Q: And while you=re here, you said you plead [sic] true to that. And they offered that pen packet there. When you got your probation revoked, what happened to you? They said you went to prison. But what happened after you went to prison?
A: It was the shock probation.
Q: So what does that mean, Ashock probation@?
A: They send you down for three months to the trustee camp. It was just for two. It wasn=t population or anything. And if you obey the rules for three months, everything is good. You get back out and you=re on probation, and you get to finish it out. There=s no extra time involved or anything.
Q: And were you able to live it out when you got out?
A: Yes.
Q: Okay. Is that what that SAIP refers to in that judgment there? When it says A10 years SAIP,@ is that an indication that if things go right, you -- it=s intended that you be shocked out?
A: I guess. I don=t --
After both sides rested and closed, the prosecutor and trial counsel briefly questioned whether the prior conviction was a Afinal conviction.@ The next morning, prior to jury arguments on punishment and outside the jury=s presence, the trial court announced:
Since we left here yesterday evening and during the time the Court has prepared the Charge, it=s come to the Court=s attention based upon information received by [the prosecutor] that the conviction earlier alleged in this cause with regard to a prior conviction for burglary of a habitation out of Potter County may not comply with the requirements of the law with regard to a prior felony conviction sufficient to raise the range of punishment to a first degree felony, even if proven.
And it=s my understanding the State is waiving its right to request a charge even referring to that conviction for the purpose of enhancement.
No reason was given as to why the prior conviction Amay not comply@ with the law regarding enhancements. Trial counsel thanked the court and the prosecutor. The trial court omitted from the punishment charge any reference to the prior conviction or the enhancement allegation.
The pen packet from the prior conviction contains a 1992 judgment indicating that appellant was convicted of the offense of burglary after first having been placed on deferred adjudication probation. During the probationary period, the State filed a motion to adjudicate alleging that appellant had violated the terms and conditions of his probation. The motion was granted, and appellant=s guilt was adjudicated. The first page of the 1992 judgment shows that punishment was assessed at A10 years TDCJ-ID and $2000 Fine. Sentenced under article 42.12 S.A.I.P.@ Elsewhere in the judgment, punishment was stated to be A10 yrs TDCJ-ID and $2000 Fine.@ At that time, former Tex. Code Crim. Proc. art. 42.12, ' 8[2] provided for the Special Alternative to Incarceration Program (SAIP), which was commonly known as Aboot camp.@ Ex parte Bittikoffer, 802 S.W.2d 701, 702 (Tex. Crim. App. 1991). Under former Article 42.12, section 8, the judge that imposed an SAIP sentence could, within a certain time frame, suspend further execution of the sentence and place the defendant on probation. Id. When this type of sentence is imposed, the conviction does not become a final conviction for enhancement purposes unless the probation is revoked. See Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). Thus, if appellant received an SAIP sentence and served out his probation successfully, then his burglary conviction could not have been used for enhancement purposes. Furthermore, the burglary conviction would not have been admissible for impeachment purposes under Rule 609(c)(2).
To defeat the presumption of reasonable professional assistance, the record must affirmatively demonstrate the ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of an ineffective assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The record in this case does not contain sufficient information to affirmatively demonstrate trial counsel=s ineffectiveness; the record is not clear as to whether appellant satisfactorily completed probation or even what type of punishment was actually assessed.[3] Because the record in the present case has not been sufficiently developed as to the admissibility and finality of appellant=s prior conviction, we cannot hold that counsel=s performance fell below an objective standard of reasonableness.[4]
Appellant also contends that trial counsel was ineffective for failing to make an offer of proof or bill of exception as to the excluded testimony. There is nothing in the record indicating what the excluded testimony would have been. Consequently, again, we cannot determine from the record on appeal that trial counsel=s performance fell below an objective standard of reasonableness.
Appellant contends that trial counsel was ineffective for failing to request an instruction on the lesser included offense of attempted sexual assault without the aggravating factor of the use of a firearm. Our review of the record reveals that appellant was not entitled to an instruction on the lesser included offense because he testified that he committed no offense and because there was no other evidence indicating that he attempted to commit a sexual assault but did not exhibit or use a deadly weapon during the attempt. See Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (defendant=s testimony that he committed no offense is not adequate to raise lesser included offense); Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994); see also Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) (delineating well-settled law on when a charge on a lesser included offense is required). Because appellant would not have been entitled to the lesser included instruction, trial counsel was not ineffective for failing to request such an instruction.
Appellant has not shown that trial counsel=s performance fell below an objective standard of reasonableness. The fourth issue is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
March 6, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]We note that it is not clear from the judgment whether appellant was convicted of burglary of a habitation or burglary of a building. On the front page of the judgment, some unidentified person has marked through the word ABuilding@ and written AHabitat@; however, on the remaining pages of the judgment, the offense is referred to four times as ABurglary of a Building.@ Also, the offense is shown to be a second degree felony. At that time, burglary of a building was a second degree felony and burglary of a habitation was a first degree felony. See Tex. Penal Code Ann. ' 30.02 historical note (Vernon 2003) (stating text of Section 30.02 as it read prior to the 1993 amendment).
[2]Tex. Code Crim. Proc. Ann. art. 42.12, ' 8 (Vernon Supp. 2007) is currently entitled AState Boot Camp Program.@ Although the section has been amended, its effect is similar.
[3]We note that the Texas Court of Criminal Appeals has held that defense counsel performed deficiently when he elicited testimony from the defendant at the guilt phase of trial regarding two convictions that would have been inadmissible for impeachment because they were not final convictions. Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006).
[4]We note that our resolution of this issue does not affect appellant=s entitlement to re-urge this complaint in a postconviction writ. Bone, 77 S.W.3d at 837 n.30.