Affirmed and Memorandum Opinion filed December 23, 2003.
In The
Fourteenth Court of Appeals
____________
NOS. 14-02-01308-CR
14-02-01309-CR
14-02-01310-CR
14-02-01311-CR
14-02-01312-CR
____________
STEVEN CRAIG NETTLES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause Nos. 907733, 907818, 907819, 907820, & 907837
M E M O R A N D U M O P I N I O N
Appellant pleaded guilty to three counts of deadly conduct and two counts of arson. The trial court assessed punishment at ten years= confinement for each offense. In four issues, appellant contends (1) he was denied effective assistance of counsel; (2) the trial court erred in entering a deadly weapon finding in cause number 907837 because there was no evidence to support the finding; (3) the trial court lacked jurisdiction over cause number 907733 because the indictment was not specific enough; and (4) the trial court erred in finding appellant guilty of deadly conduct in cause numbers 907819 and 907820 because there was no evidence appellant acted recklessly. We affirm.
Factual Background
Appellant pleaded guilty to shooting a firearm through the window of a delicatessen on two separate occasions, setting fire to two vehicles owned by complainants Lisa and Shannon Wade, and shooting a firearm at the Wade residence. At the State=s request, the trial court made an affirmative finding that appellant used and exhibited a deadly weapon in each of the five offenses as stated in the indictments. However, because they could not agree on punishment, at appellant=s request the court reset the cases for sentencing following a Pre-Sentence Investigation (APSI@). At sentencing, the court considered appellant=s PSI report, which contained medical records, victim impact statements, and character reference letters, and heard testimony from several witnesses, including appellant. Subsequently, the trial court sentenced appellant to ten years= confinement for each offense.
Discussion
A. Ineffective Assistance of Counsel
In his first issue, appellant argues he was denied effective assistance of counsel because his trial counsel failed to object to statements appellant contends are expert opinions given by lay witnesses. Specifically, appellant asserts that Lisa and Shannon Wade, through their victim impact statements, claimed Lisa had suffered a miscarriage as a result of the stress caused by appellant=s actions.[1] Appellant argues this amounted to speculative lay opinion on a matter of medical science and, because the State did not provide any expert testimony establishing to a reasonable medical certainty that Lisa suffered a miscarriage due to stress, the Wades= statements were inadmissible.
Whether a defendant received effective assistance of counsel is governed by the Strickland test promulgated by the United States Supreme Court. Strickland v. Washington, 466 U.S. 668 (1984). To prove an ineffective assistance of counsel claim, the appellant must first show that counsel=s performance was deficient to the extent his or her assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, the appellant must affirmatively prove prejudice. Id. Under the second prong, the record must show a reasonable probability that the outcome of the proceeding would have been different, but for counsel=s error. Perez v. State, 960 S.W.2d 84, 88 (Tex. App.CAustin 1997, no pet.). This two-prong test applies at both the guilt/innocence and punishment phases of trial. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).
Appellant bears the burden to prove by a preponderance of the evidence that his trial counsel was ineffective. Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). 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. Strickland, 466 U.S. at 689. Further, an allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the supposed ineffectiveness. Thompson, 9 S.W.3d at 813; Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998); McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When presented with no evidence of counsel=s reasons for the challenged conduct, an appellate court will presume a strategic motivation if one can be imagined and will not conclude counsel=s action was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see Thompson v. State, 9 S.W.3d at 814. If the record does not contain a specific explanation for defense counsel=s actions, an appellate court cannot reverse a conviction based upon a claim of ineffective assistance of counsel. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002).
In this case, appellant fails to satisfy the first prong of the Strickland test because there is nothing in the record to overcome the strong presumption that counsel=s conduct was reasonable and professional. Because there was neither a motion for new trial nor a petition for writ of habeas corpus to explain trial counsel=s actions, the record is undeveloped and not adequate to reflect any alleged failings of trial counsel. Freeman v. State, No. 2156-01, slip op. at ___, 2003 WL 22510582, at *1 (Tex. Crim. App. Nov. 5, 2003); see generally Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (stating that a writ of habeas corpus is the appropriate vehicle to investigate ineffective assistance of counsel claims). Thus, we must presume that counsel had a plausible reason for his actions. See Safari v. State, 961 S.W.2d 437, 445 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d, untimely filed). To conclude otherwise, calls for speculation, and this we will not do. See id. (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). Appellant=s first issue is overruled.
B. Deadly Weapon Finding
In appellant=s second issue, he argues that neither the PSI report nor evidence adduced at sentencing suggest the use or exhibition of a firearm during the commission of the arson offense, as alleged in the indictment. Appellant reasons that, because there is no proof he used or exhibited a firearm, the trial court had a duty to make a negative finding as to the deadly weapon.[2]
The indictment in this cause specifically states the following:
The duly organized Grand Jury of Harris County, Texas, presents in the District of Harris County, Texas that in Harris County, Texas, Steven Craig Nettles, hereafter styled the Defendant, heretofore on or about January 20, 2002, did then and there unlawfully, start a fire by igniting a flammable liquid with an incendiary device with the intent to destroy and damage a vehicle located at 9626 Poynes and knowing that the vehicle was insured against damage and destruction.
It is further presented that in Harris County, Texas, Steven Craig Nettles, hereafter styled the Defendant, heretofore on or about January 20, 2002, did then and there unlawfully start a fire by igniting a flammable liquid with an incendiary device with the intent to destroy and damage a vehicle located at 9626 Poynes and knowing that the vehicle was located on property belonging to another.
The final paragraph of the indictment alleges that appellant Aused and exhibited a deadly weapon, namely, a firearm during the commission of and during immediate flight therefrom.@ The indictment contains all of the necessary elements of arson.[3] Tex. Pen. Code ' 28.02.
Appellant pleaded guilty to the felony offense of arson as stated in the indictment.[4] When a defendant pleads guilty to an indictment that includes an allegation he used a deadly weapon during the commission of the offense, the trial court may make a deadly weapon finding. Hunt v. State, 967 S.W.2d 917, 919 (Tex. App.CBeaumont 1998, no pet.); Alexander v. State, 868 S.W.2d 356, 361 (Tex. App.CDallas 1993, no pet.). In appellant=s judicial confession, he confessed that the allegations contained in the indictment, including the use of a deadly weapon, were true. A judicial confession is sufficient to support the court=s affirmative deadly weapon finding. Alexander, 868 S.W.2d at 360. Accordingly, we overrule appellant=s second issue.
C. Deadly Conduct Crimes
1. Jurisdiction of the Trial Court
In appellant=s third issue, he contends the trial court lacked jurisdiction over cause number 907733, a deadly conduct charge, because the indictment did not allege the offense with enough specificity to allow him to identify the penal statute under which the state intended to prosecute.
A person commits deadly conduct if he Aknowingly discharges a firearm at or in the direction of . . . a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.@ Tex. Pen. Code ' 22.05(b)(2). The indictment at issue stated appellant did Aunlawfully, knowingly discharge a firearm at and in the direction of a habitation, namely, a habitation located at 9626 Poynes.@ Further, the indictment specifically stated the felony charge was ADEADLY CONDUCT.@ Here, appellant argues that because the indictment fails to allege he was reckless as to whether the habitation was occupied, the indictment is not specific enough to identify the applicable penal statute.[5] We disagree.
Generally, an indictment must plead every element that must be proven at trial. Dinkins v. State, 894 S.W.2d 330, 338 (Tex. Crim. App. 1995). However, an indictment is sufficient to vest the trial court with jurisdiction if it accuses someone of a crime with sufficient clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the indictment is otherwise defective. See Duron v. State, 956 S.W.2d 547, 550B51 (Tex. Crim. App. 1997). This is true even if the indictment fails to include an element of the offense. Id. at 551; see, e.g., Caldwell v. State, 971 S.W.2d 663, 666 (Tex. App.CDallas 1998, pet. ref=d); Le v. State, 963 S.W.2d 838, 844 (Tex. App.CCorpus Christi 1998, pet. ref=d). Indeed, the Court of Criminal Appeals has held that indictments which omit any reference to a culpable mental state are not fundamentally defective so as to preclude the trial court from obtaining jurisdiction in the cases. See State v. Oliver, 808 S.W.2d 492, 493B94 (Tex. Crim. App. 1991).
In this case, the indictment included one of the requisite mental states under the offense of deadly conductCknowingly discharging a firearm. In addition, the indictment not only stated the felony charge was ADEADLY CONDUCT,@ but also provided that appellant knowingly discharged a firearm at and in the direction of a habitation. This language tracks the language in the Penal Code pertaining to the offense of deadly conduct. See Tex. Pen. Code ' 22.05(b)(2). Although it may have omitted the element of recklessness, it was sufficiently specific to inform the appellant of the penal statute involved.
Moreover, the failure to allege an element of an offense in an indictment is a defect of substance. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990); Muhammad v. State, 846 S.W.2d 432, 437 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d). Defects of substance must be raised before commencement of trial, otherwise the accused forfeits his right to raise the objection on appeal or by collateral attack. Studer, 799 S.W.2d at 268; see Tex. Code Crim. Proc. art. 1.14(b). Because appellant failed to object to the indictment prior to trial, he waived this issue on appeal. See State v. Murk, 815 S.W.2d 556, 557B58 (Tex. Crim. App. 1991) (holding that failure of an indictment to allege any culpable mental state is a defect of substance which the defendant waives if not raised before trial); Oliver, 808 S.W.2d at 493B94 (same); Prudhome v. State, 989 S.W.2d 852, 854 (Tex. App.CHouston [14th Dist.] 1999, no pet.) (same). Accordingly, we overrule appellant=s third issue.
2. Sufficiency of the Evidence
In his fourth issue, appellant asserts there is no evidence to support the allegations he was reckless in the indictments for the felony offenses of deadly conduct in cause numbers 907819 and 907820.
When an appellant challenges the sufficiency of the evidence, we review the evidence in a light most favorable to the verdict. Ross v. State, 931 S.W.2d 633, 635 (Tex. App.CDallas 1996, no pet.). We determine whether any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jones v. State, 833 S.W.2d 118, 122 (Tex. Crim. App. 1992); Ross, 931 S.W.2d at 635. The evidence is sufficient to uphold the conviction if the collective weight of all the incriminating circumstances warrants the conclusion. Livingston v. State, 739 S.W.2d 311, 330 (Tex. Crim. App. 1987); Ross, 931 S.W.2d at 635.
According to appellant, on two separate occasions, he fired shots into a delicatessen owned by Jon Daigle after the delicatessen=s regular business hours. Specifically, in a statement submitted to the court, appellant stated that on the first occasion, he fired four to five shots from his rifle at a time he Aknew the business was closed@ and, on the second occasion, at 1:00 a.m., when he Aknew no one was in the business and that it was closed.@[6]
According to article 1.15 of the Texas Code of Criminal Procedure, a defendant in a felony case may waive his right to a jury trial and plead guilty, provided the State introduces sufficient evidence of the defendant=s guilt. Tex. Code Crim. Proc. art. 1.15; Dinnery v. State, 592 S.W.2d 343, 351 (Tex. Crim. App. 1980) (op. on reh=g); Ross, 931 S.W.2d at 635. A judicial confession, which is a defendant=s admission the allegations in the indictment are true, is sufficient to sustain a conviction upon a plea of guilty without any additional evidence. Dinnery, 592 S.W.2d at 353; Ross, 931 S.W.2d at 635; see Boyd v. State, Nos. 14-99-01355B57-CR, 2001 WL 619587, at *3 (Tex. App.CHouston [14th Dist.] June 7, 2001) (not designated for publication).
Here, before the trial court, appellant entered a plea of guilty to the offenses charged in each indictment. In the AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession@ for both deadly conduct charges at issue, it is specifically stated that appellant was reckless as to whether the building was occupied each time he fired into it. Also, appellant confessed to committing the crimes as alleged in the indictments. Appellant testified he pleaded guilty freely and voluntarily because he was guilty of the offenses of deadly conduct. The State offered, and the trial judge admitted, both of appellant=s signed judicial confession forms without objection by appellant.[7] Because the record reflects that appellant=s written judicial confessions were admitted into evidence without objection at trial, this is sufficient to sustain the trial court=s finding of guilt. See Ross, 931 S.W.2d at 635. We overrule appellant=s fourth issue.
Accordingly, the judgment of the trial court is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed December 23, 2003.
Panel consists of Justices Edelman, Frost, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Lisa=s victim impact statement indicated, among other things, that she and her husband had been Awanting a child,@ and that during the Asecond car bomb,@ she was alone because her husband was at boot camp. Lisa then stated, AI was under a lot of stress and my baby did not grow. . . . Shannon and I, as well as many of our family members, believe that I was under too much stress to carry that baby.@ Shannon=s victim impact statement contains the following: ASince the first fire bomb incident in December our lives have been affected in many different ways, . . . . We have been driven from our home, separated from our daughter, and had a miscarriage. . . . My wife suffered a miscarriage after the second car bomb and my daughter is in therapy. . . .@ Victim impact statements may contain any information, other than facts related to the commission of the offense, related to the impact of the offense on the victim. Tex. Code Crim. Proc. art. 56.03(b)(8). Also, crime victims have the right to have their victim impact statements considered by a judge before sentencing. Id. art. 56.02(a)(13)(A).
[2] Appellant relies upon Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978) (op. on reh=g), to support his argument. In Moon, the issue was whether the trial court had to sua sponte withdraw a defendant=s guilty plea when evidence was presented that raised the issue of a lesser included offense or of defendant=s innocence. Id. The court held that because the trial courtCas opposed to a juryCwas the trier of fact, the trial court was not required to withdraw a guilty plea; rather, the trial court had a duty to consider all the evidence submitted and could find the defendant guilty of a lesser included offense, or it could find the defendant not guilty. Id. Appellant asserts that, similarly, when a trial court detects an absence of proof to support a specific deadly weapon allegation, it has a duty to make a negative finding as to the deadly weapon and ensure that the judgment reflects that finding. We decline to read Moon as requiring that result in this case. Here, the trial court presumably considered all the evidence, including appellant=s guilty plea, which specifically stated the allegations in the indictment were true, and made an affirmative finding on the use of a deadly weapon.
[3] In relevant part, the statute establishes A[a] person commits an offense if the person starts a fire, regardless of whether the fire continues after ignition, or causes an explosion with intent to destroy or damage . . . any building, habitation, or vehicle . . . knowing that it is insured against damage or destruction . . . .@ Tex. Pen. Code ' 28.02(a)(2)(B).
[4] Appellant speculates that the indictment for this cause number was mistakenly drafted to reflect a firearm as the deadly weapon, because the other arson indictment specified Afire@ as the deadly weapon. However, any defects in the substance or form of the indictment must be raised before or during trial, or such defects are waived. Tex. Code Crim. Proc. art. 1.14(b); Ex parte Long, 910 S.W.2d 485, 486 (Tex. Crim. App. 1995). Thus, this contention has not been timely raised.
[5] Appellant argues the Class B misdemeanor offense of disorderly conduct under Penal Code section 42.01(a)(9) or the misdemeanor offense of discharge of a firearm in certain municipalities under Penal Code section 42.12 could apply to the facts of this case.
[6] As further support for appellant=s contention there was no proof he was reckless, appellant highlights Jon Daigle=s AVictim Impact Letter@ which stated that appellant fired shots into his delicatessen when the business was closed and no one was in the building. He also references the written PSI report which was silent as to whether there were any employees or customers in the delicatessen when it was fired upon. This information is irrelevant to the issue of appellant=s recklessness in this case because in the context of the deadly conduct offense, whether appellant was reckless focuses on his awareness of a substantial and unjustifiable risk that the building was occupied, not on what may have actually happened or what someone may have failed to report. See Tex. Pen. Code ' 6.03(c).
[7] These two forms were admitted into evidence simultaneously with the three judicial confession forms pertaining to the offenses committed against the Wades.