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NUMBER 13-00-692-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
RONALD CRENSHAW, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
O P I N I O N
Before Chief Justice Valdez and Justices Dorsey and Rodriguez
Opinion by Justice Dorsey
Appellant, Ronald Crenshaw, appeals his conviction for robbery. Appellant=s counsel brings thirteen points of error for review. Appellant has filed a pro se brief raising three points of error.[1] We affirm.
Facts
Patricia Lazo got into her car after parking it at a nursing home. As she drove home a man grabbed her from behind and told her to drive and that he had a gun. She rear-ended a truck and got out of the car, leaving her purse. The man drove away with her car. Damon Sahadi, the driver of the truck, watched the car until a police car began to follow it. Officer Giles, the first officer to pursue Lazo=s car, followed the car until it hit a fence. He saw someone run from the scene, carrying a purse. He and Officer Sanchez followed the suspect and captured him.
Factual Sufficiency
By point one appellant argues that the evidence is factually insufficient to sustain the conviction. When considering the factual sufficiency of the evidence we apply the test set out in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). See Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000).
Appellant argues that the evidence is insufficient to show that he was the person inside Lazo=s car. He argues that no fingerprints connected him to Lazo=s car or property, that no one saw him driving Lazo=s car, and that Damon Sahadi lacked credibility, because his testimony conflicted with the testimony of other witnesses. The facts showed that Lazo only knew that a man was inside her car. However Sahadi identified this man as appellant. Officer Giles began following Lazo=s car soon after it left the scene. He lost sight of the car for only a few seconds each time the car turned onto different streets. When the car hit the fence Giles saw someone running from the scene, carrying a purse. He followed the suspect and saw him throw down the purse. Officer Sanchez joined Giles in the chase and pursed the suspect on foot. He caught the suspect, and Giles recovered the purse where the suspect threw it. The suspect whom Sanchez captured was the same person who Giles saw throw down the purse. The purse belonged to Lazo. Giles did not see anyone else running around in that area. Sanchez identified appellant as the person he caught.
We hold that the jurors were free to believe the State=s evidence and find that appellant was the man inside Lazo=s car from the time she left the nursing home to the time that the car hit the fence. Appellant's evidence does not outweigh the State=s evidence, nor does the verdict shock our conscience. We overrule point one.
Failure To Grant A Mistrial
By points two and five appellant complains of two instances where the trial court failed to grant a mistrial. In the first instance, when the State=s attorney asked Officer Giles what crime he had arrested appellant for, Giles said, AIt was discovered incident to arrest that he had a crack pipe in his possession.@ In the second instance, the State, during punishment, offered a pen packet into evidence. When the trial court asked the purpose for the offer, the State=s attorney replied, AExtraneous offense@ and AJudge, it=s a certified copy of a penitentiary packet.@ In both instances the trial court denied the requests for mistrials, but instructed the jury to disregard Giles=s testimony about the crack pipe and the State=s remarks about the pen packet.
We review a denial of a mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Generally a mistrial is only required when the improper evidence is "clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury." Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). In all other situations the jury is presumed to follow the trial court's instruction to disregard improperly admitted evidence. Id. Whether the erroneous admission of evidence requires a mistrial is determined by looking at the facts and circumstances of the case. Id.
Here Giles made his remark about the crack pipe in response to the State=s inquiry about why he had arrested appellant; nothing shows that either the question or the response was intended to prejudice appellant in the jury=s presence. In the second instance the State made the remark in an effort to convince the trial court to admit a pen packet for punishment. In both instances the remarks were not Aclearly calculated to inflame the minds of the jury,@ and the remarks were not of the character suggesting the impossibility of withdrawing the impression produced on the minds of the jury. Thus the instructions to disregard cured any prejudicial effect the remarks otherwise would have had. The trial court, therefore, did not abuse its discretion in denying the motions for mistrial. We overrule points two and five.
Habitual-Felony Offender
By point three appellant attacks the sufficiency of the evidence to support the jury=s finding that he was a habitual-felony offender. He claims that an offense used for enhancement, an October 23, 1986, California robbery conviction, was not a final conviction. The pen packet, which includes the abstract of judgment, shows that appellant was convicted of robbery on August 9, 1984. This conviction was reversed. The abstract also shows that appellant was re-arraigned, pleaded guilty to the robbery offense, and was sentenced on October 23, 1986. Based on this information the jury could find beyond a reasonable doubt that the October 23, 1986, conviction was final. In an absence of a showing to the contrary a presumption exists that the sentence was based upon a judgment and that the court acted in accordance with the law. Jones v. State, 449 S.W.2d 277, 278 (Tex. Crim. App. 1970). We overrule point three.
Ineffective Assistance of Counsel
By point four appellant argues that he received ineffective assistance of counsel at the guilt-innocence and punishment phases. To prove ineffective assistance of counsel appellant must show: (1) that trial counsel's performance was not reasonably effective, falling below an objective standard of reasonableness under the prevailing professional norms; and (2) this deficient performance prejudiced his defense to the extent that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). A Areasonable probability@ means Aa probability sufficient to undermine confidence in the outcome.@ Id.; Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). A showing of deficiency requires a demonstration that trial counsel made errors so serious that he was not functioning as the Acounsel@ guaranteed a defendant under the Sixth Amendment. The prejudice element requires a showing that trial counsel's errors were so serious that they deprived the defendant of a fair trial; one whose result is reliable. Strickland, 466 U.S. at 687. The totality of the representation is evaluated from counsel's perspective at trial, not his isolated acts or omissions in hindsight. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). The Areasonably effective assistance@ standard does not mean errorless counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Hernandez v. State, 799 S.W.2d 507, 508 (Tex. App.BCorpus Christi 1991, pet. ref'd).
Appellant complains of numerous instances in which he claims trial counsel was ineffective. All are inconsequential and do not satisfy the Strickland requirements. Based upon the totality of the representation there is no showing that trial counsel made errors so serious that he was not functioning as the Acounsel@ guaranteed a defendant under the Sixth Amendment. There is no showing that counsel's performance prejudiced his defense to the extent that the result of the trial would have been different. Strickland, 466 U.S. at 694. We overrule point four.
Allen Charge
By point six appellant claims that his rights to due process were violated when the trial court gave the jury an Allen charge. An Allen charge is given to instruct a deadlocked jury to continue deliberating. See Allen v. United States, 164 U.S. 492, 501 (1896). The primary inquiry to determine the propriety of an Allen charge is its coercive effect on juror deliberation, "in its context and under all circumstances." Howard v. State, 941 S.W.2d 102, 123 (Tex. Crim. App. 1996).
Here the jury began deliberating punishment on Friday at 10:40 a.m. The jury broke for lunch for one and one-half hours and at 3:12 p.m. sent out a note, indicating that it was deadlocked. The trial court told the jury, A[P]lease continue deliberating@ and AI intend to recess at 4:30 until Monday, so please continue deliberating . . . certainly you=ll be given top priority if you elect to come back Monday, but for now please continue deliberating. . . .@ The jury reached a verdict at 3:54 p.m.
Appellant asserts that the trial court=s remarks were coercive. We disagree. The court did not shade the instruction with coercive nuance; rather, the court simply told the jurors it planned to recess at 4:30 p.m., to keep deliberating, and that they would receive top priority if they elected to return on Monday. The instruction served
to encourage discussion and to avert an impasse. We do not find coercive suggestions in the instruction given to the jury. We overrule point six.
Failure To Quash Indictment
By points seven and eight appellant argues that the trial court erred in failing to quash the indictment for several reasons. First he argues that the indictment did not comply with article 21.02 of the Texas Code of Criminal Procedure. Article 21.02 states that an indictment Ashall be deemed sufficient@ if it Aappear[s] that the same was presented in the district court of the county where the grand jury is in session.@ Tex. Code Crim. Proc. Ann. art 21.02(2) (Vernon Supp. 2002). The indictment recites that it was presented by the Aduly organized Grand Jury of Nueces County, Texas, . . . in the District Court of Nueces County, Texas.@ We find that language sufficient to comply with Article 21.02(2).
Next he complains that the indictment failed to show that the minutes of the district court show the fact of presentment, thereby violating article 20.22 of the Texas Code of Criminal Procedure. Article 20.22 states: AThe fact of a presentment of indictment by a grand jury shall be entered upon the minutes of the court . . . noting briefly the style of the criminal action and the file number of the indictment and the defendant's name. . . .@ Tex. Code Crim. Proc. Ann. art. 20.22 (Vernon Supp. 2002). Appellant did not provide us with the portion of the record required to substantiate such a claim. Nevertheless he does not argue that the grand jury did not vote to true bill him on January 6, 2000, and then again, by reindictment, on April 27, 2000. Accordingly he does not argue that the statutory purpose was thwarted, and we would be disinclined to find reversible error under such circumstances. See Hawkins v. State, 792 S.W.2d 491, 494 (Tex. App.CHouston [1st Dist.] 1990, no pet.). The purpose of article 20.22's requirement that the fact of presentment of an indictment by a grand jury be entered upon the minutes of the court is to ensure that persons are tried only under true bills. See Reese v. State, 151 S.W.2d 828 (Tex. Crim. App. 1941)(citing to a predecessor statute). Here appellant does not argue that he was not tried under a true bill, only that a technical violation of article 20.22 occurred. Such technical requirements as those contained in article 20.22 have been held to be Amerely directory despite the use of the word >shall= therein.A See Jenkins v. State, 468 S.W.2d 432, 435 (Tex. Crim. App.1971); Bruns v. State, 924 S.W.2d 176, 179 (Tex. App.CSan Antonio 1996, no pet.).
Third he argues that the indictment failed to identify the property subject to the robbery. The gravamen of robbery is the assaultive conduct, and no completed theft is required. Ex parte Hawkins, 6 S.W.3d 554, 559-60 (Tex. Crim. App. 1999). Thus the State does not have to allege the elements of theft in a robbery indictment. See Hightower v. State, 629 S.W.2d 920, 922-23 (Tex. Crim. App. 1981).
Fourth he argues that the indictment failed to allege how he placed the victim in fear. The indictment alleged in part that appellant Athreaten[ed] Patricia Lazo with and place[d] Patricia Lazo in fear of imminent bodily injury or death.@ In Smith v. State, 732 S.W.2d 440 (Tex. App.BBeaumont 1987, pet. ref=d) the accused was indicted for robbery. The indictment alleged that the accused Athreatened and placed Pam Solly in fear of imminent bodily injury and death by causing Pam Solly to believe that he had a firearm.@ Id. at 440, 442 (emphasis added). The court said that it was legally essential for the indictment to allege the italicized language and that the additional wordsBAby causing Pam Solly to believe that said defendant had a firearm"Bwere not needed and only descriptive of that which is legally essential. Id. at 442 (citing Burrell v. State, 526 S.W.2d 799, 801 (Tex. Crim. App. 1975)). Thus the indictment is not defective for failing to allege how appellant placed Patricia Lazo in fear.
Lastly he argues that the trial court should have quashed the indictment because the affidavit/complaint was not filed before the filing of the indictment. The complaint against appellant was filed in the district court on January 13, 2000. The reindictment was filed on April 27, 2000. We overrule points seven and eight.
Grand Jury Transcript Request
By point nine appellant argues that the trial court erred in denying his request to subpoena the minutes of the grand jury. He argued to the trial court that he needed the grand jury minutes to see what the witnesses testified to and because the indictment did not describe the charges against him. A trial court has considerable discretion concerning production of grand jury testimony. Legate v. State, 52 S.W.3d 797, 803 (Tex. App.BSan Antonio 2001, pet. ref=d). The Texas Code of Criminal Procedure provides: "(a) The proceedings of the grand jury shall be secret" and "(d) The defendant may petition a court to order the disclosure of information otherwise made secret by this article . . . [upon] a showing by the defendant of a particularized need." Tex. Code Crim. Proc. Ann. art. 20.02 (Vernon 2000). See Bynum v. State, 767 S.W.2d 769, 782 (Tex. Crim. App. 1989). The totality of the circumstances must be examined when determining whether a particularized need exists. Bynum, 767 S.W.2d at 781; Legate, 52 S.W.2d at 803. A particularized need is not shown simply because the requested testimony pertains to a key prosecution witness, or that there is a "need" to locate inconsistencies in the witness's testimony. Bynum, 767 S.W.2d at 783; Legate, 52 S.W.2d at 803. Because appellant has not shown a particularized need the trial court did not abuse its discretion in denying his request. We overrule point nine.
Reindictment
By point ten appellant argues that the State erred by reindicting him after the original trial date in violation of the trial court=s order. The State and defense counsel announced ready at a docket-control hearing. Afterwards the State reindicted appellant to add the enhancement allegations. There is no court order preventing or restricting the State=s ability to reindict appellant. Further the State=s announcement of Aready@ does not keep the State from reindicting appellant to add enhancement allegations. See Perez v. State, 678 S.W.2d 85, 86 (Tex. Crim. App. 1984). We overrule point ten.
Arraignment
By point eleven appellant argues that he was denied due process of law because he was not arraigned until a pre-trial hearing. Article 28.01 of the Texas Code of Criminal Procedure states in part that AThe pre‑trial hearing shall be to determine any of the following matters: (1) Arraignment of the defendant, if such be necessary. . . .@ Tex. Code Crim. Proc. Ann. art. 28.01, ' 1(1) (Vernon 1989). The court of criminal appeals has stated that an arraignment is Atimely even if after the jury was selected and impaneled.@ Phillips v. State, 511 S.W.2d 22, 26 (Tex. Crim. App. 1974). Appellant has not made an argument about how his due process rights were violated when the trial court arraigned him at the pre-trial hearing. We hold that the arraignment was properly held at the pre-trial hearing. We overrule point eleven.
Undisclosed Witness
By point twelve appellant argues that his due process rights were violated when the trial court allowed Brenda Gatewood, a fingerprint supervisor, to testify at the punishment phase. Gatewood fingerprinted appellant and testified that his prints matched the fingerprints contained in the pen packets. Appellant complains that she was allowed to testify despite the fact that she was not listed as a witness on the court-ordered witness list. Defense counsel did not object to her testimony and has waived error. Tex. R. App. P. 33.1. However we point out that this issue is reviewed for abuse of discretion, which is evaluated against whether the State's actions were in bad faith, and whether the defendant could have reasonably anticipated the witness's testimony. Campbell v. State, 900 S.W.2d 763, 772 (Tex. App.‑‑Waco 1995, no pet.). Further even if there is an abuse of discretion, if the defendant fails to move for a continuance to have more time to prepare for cross‑examination of the witness, any error is rendered harmless. Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994); Gonzales v. State, 4 S.W.3d 406, 416 n. 6 (Tex. App.‑‑Waco 1999, no pet.).
Here because there is no indication that the State was trying to deceive the defense, bad faith has not been shown. Moreover the defense was aware of the enhancement allegations and could reasonably have anticipated that the State would call someone to testify about appellant=s fingerprints. Under these circumstances we find the trial court did not abuse its discretion in allowing Gatewood's testimony. We overrule point twelve.
Motion For New Trial
By point thirteen appellant argues that the trial court erred by denying his motion for new trial after learning that Damon Sahadi and Detective Ralph Lee had supplied false testimony. The grant or denial of a motion for new trial lies within the discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Id.
At a pre-trial hearing Detective Lee testified that the car which Lazo was driving was Athe victim=s vehicle.@ At trial the victim, Patricia Lazo, testified that the car she was driving belonged to someone else. This discrepancy does not affect the allegations in this case. Robbery is an assaultive offense, and the indictment need not allege the ownership of the property. Babbs v. State, 739 S.W.2d 646, 649 (Tex. App.BHouston [14th Dist.] 1987, no pet.).
Sahadi testified that after the impact he looked back at Lazo=s car and saw Aa person start to climb over from the back seat to the front seat. . . .@ This testimony conflicted with the testimony of Patricia Lazo and Melissa Vetor, both of whom said that they saw the man get out of car and then get into the front seat. Sahadi also testified that Lazo=s vehicle was at the scene for about five minutes, yet Angela Burns testified that the car was there for only fifteen to twenty seconds. These conflicts reflect upon Sahadi=s credibility, but the factfinder=s role is to resolve conflicts in the evidence. These conflicts are not so serious that they require a new trial. We hold that the trial court did not abuse its discretion in denying the motion for new trial. We overrule point thirteen.
PRO SE BRIEF
Challenge To Grand Jury
By point fourteen appellant argues that the trial court erred in denying his request to challenge the array of the grand jurors. Article 19.27 of the Texas Code of Criminal Procedure provides: ABefore the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. . . .@ Tex. Code Crim. Proc. Ann. art. 19.27 (Vernon 1977). Appellant did not challenge the array prior to impanelment. Thus he waived the challenge, and the trial court did not err by denying his request. See Caraway v. State, 911 S.W.2d 400, 401-02 (Tex. App.BTexarkana 1995, no pet.). We overrule point fourteen.
Ineffective Assistance Of Counsel
By point fifteen appellant asserts that he received ineffective assistance of counsel, because trial counsel did not challenge the State=s evidence or the police department=s procedures. Appellant complains of numerous instances in which he claims trial counsel was ineffective. These instances do not satisfy the Strickland requirements. Based upon the totality of the representation there is no showing that trial counsel made errors so serious that he was not functioning as the Acounsel@ guaranteed a defendant under the Sixth Amendment. Further appellant has not shown how counsel=s performance prejudiced his defense to the extent that the result of the trial would have been different. Strickland, 466 U.S. at 694.
Enhancement Allegation
By point sixteen appellant complains that his 1986 California robbery conviction used for enhancement purposes (discussed in point three, supra) is void. A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument does not satisfy the constitutional requisites of a charging instrument, thus the trial court had no jurisdiction over the defendant, (2) the trial court lacked subject matter jurisdiction over the offense charged, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived. Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001). Appellant has failed to meet any of these requirements. We overrule point sixteen.
We AFFIRM the trial court=s judgment.
______________________________
J. BONNER DORSEY,
Justice
Do not publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 23rd day of May, 2002.
[1]On September 14, 2001, we granted appellant=s pro se motion to file a supplemental brief, although generally a pro se brief presents nothing for review when appellant is represented by counsel who files a separate brief. Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981). See Allridge v. State, 850 S.W.2d 471, 496 (Tex. Crim. App. 1991) (no absolute right to hybrid representation ). Because we permitted appellant to file a supplemental brief we will consider the points of error and the arguments raised in both briefs. See generally Ford v. State, 870 S.W.2d 155, 157 (Tex. App.‑San Antonio 1993, pet. ref'd) (considering points in pro se brief after motion for leave to file granted).