In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-11-00598-CR
____________________
COLUMBUS WRIGHT SCOGGINS A/K/A COLUMBUS SCOGGINS,
Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ _____________ _
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 11-08-09497-CR
________________________________________________________ ____________ _
MEMORANDUM OPINION
Columbus Wright Scoggins 1 appeals his conviction for the offense of
assault. See Tex. Penal Code Ann. § 22.01(b-1) (West 2011); Tex. Fam. Code Ann.
§ 71.0021(b) (West Supp. 2012),2 § 71.005 (West 2008). Scoggins raises two
1
The indictment alleges that Scoggins is also known as Columbus Scoggins.
2
We cite to the current version of the statute, which the Legislature amended
in 2011, as the amendment does not affect the outcome of Scoggins’ appeal.
1
issues in his appeal. In issue one, Scoggins argues that he received ineffective
assistance of counsel because his trial attorney failed to request an instruction on
the defense of consent. In issue two, Scoggins asserts that he was improperly
punished as a habitual offender. Because the record does not demonstrate that
Scoggins received ineffective assistance of counsel or that he was improperly
punished as a habitual offender, we affirm the trial court’s judgment.
Background
In November 2010, S.A. and Scoggins were in a dating relationship and
living together. The police went to S.A.’s house after receiving a 9-1-1 call from
one of her friends. When they arrived, S.A. told the police that Scoggins had
choked her. In 2011, the State indicted Scoggins for an assault involving family
violence, alleging that Scoggins had choked S.A. The State further alleged that
Scoggins had previously been convicted for assaulting a family member. See Tex.
Penal Code Ann. § 22.01(b-1) (making a crime of assault involving family
violence a second-degree felony if the defendant has a prior conviction for an
assault that involved family violence). In addition to the prior conviction for an
assault involving family violence, Scoggins’ indictment also alleges that he had
been convicted of three felonies in other states.
2
When S.A. testified during the trial, she changed the account she gave police
about what Scoggins did to her on the day of the alleged assault. At trial, S.A.
testified that she panicked when Scoggins put his hand behind her neck and pulled
her hair, which made her feel as if she could not breathe, but she explained that she
no longer believed that Scoggins had choked her. However, the State established
that on the day of the incident, S.A. told police that Scoggins choked her.
Following the guilt phase of the trial, the jury found Scoggins guilty of assaulting
S.A. and that Scoggins had committed three prior felonies. Following the
punishment phase of the trial, the jury found that Scoggins should serve a life
sentence and assessed a fine of $10,000. See id. § 12.42(d) (West Supp. 2012).3
The trial court rendered a judgment based on the jury’s verdict.
Analysis
In issue one, Scoggins asserts that he received ineffective assistance of
counsel because his counsel failed to request an instruction on the defense of
consent. See Tex. Penal Code Ann. § 22.06 (West 2011). We apply a two-pronged
test to resolve ineffective assistance of counsel claims. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9
3
We cite to the current version of the statute, which the Legislature amended
in 2011, as the amendments that were made to section 12.42(d) are not relevant to
Scoggins’ appeal.
3
S.W.3d 808, 812 (Tex. Crim. App. 1999). Under the first prong of Strickland,
Scoggins must prove that he received ineffective assistance under a preponderance
of the evidence standard. See Strickland, 466 U.S. at 687. To establish that counsel
provided ineffective assistance, Scoggins must show that trial counsel performed
below the standard expected of counsel under an objective standard of
reasonableness and that a reasonable probability exists that the result in his case
would have been different had counsel not been deficient. See id. at 687-88, 694;
Thompson, 9 S.W.3d at 812. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Thompson, 9 S.W.3d at 812. Our review of
ineffective assistance claims is highly deferential to trial counsel; generally, we
begin with the presumption “that counsel’s actions fell within the wide range of
reasonable and professional assistance.” Garza v. State, 213 S.W.3d 338, 348 (Tex.
Crim. App. 2007).
In reviewing a complaint that trial counsel provided ineffective assistance,
we are to “avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813.
When trial counsel has not provided an explanation for the strategies that trial
counsel decided to employ, the decisions counsel made are reviewed with great
deference. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Generally, when faced with a record that is silent about why counsel chose to
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undertake a given strategy, appellate courts are not at liberty to find trial counsel’s
conduct ineffective, unless the challenged conduct was “‘so outrageous that no
competent attorney would have engaged in it.’” Id. (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)). Additionally, any Strickland claim must
be “‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’
the meritorious nature of the claim.” Id. (quoting Thompson, 9 S.W.3d at 813).
Scoggins argues on appeal that the evidence raised the defense of consent
and that his trial counsel rendered ineffective assistance by failing to request an
instruction on what he characterizes in his appeal as the central issue in the case.
See Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex. Crim. App. 1992) (concluding
that trial counsel’s failure to request an instruction on necessity was ineffective
assistance where the defendant “had nothing to lose by requesting a defensive
instruction”). In Scoggins’ case, his counsel chose to argue that the State had failed
to meet its burden of proving beyond reasonable doubt that Scoggins choked S.A.
In final argument, Scoggins’ counsel argued that reasonable doubt existed because
S.A.’s account about what occurred was unreliable. Given that S.A.’s account
about the assault at issue changed, trial counsel’s strategy is one that is objectively
reasonable.
5
Under the circumstances, relying solely on what counsel might reasonably
have believed was Scoggins’ strongest argument was an objectively reasonable
strategy. Trial counsel could have believed that pursuing a defensive issue of
consent might have risked nudging any equivocal jurors to view relying on a
consent defense as a tacit concession that Scoggins choked S.A. A reasonable
attorney may choose to avoid stacking weaker arguments onto what may be
perceived as a stronger argument in the belief that such a strategy improves their
client’s chance of prevailing at trial.
Without a record that shows why trial counsel made the choice not to request
an instruction on the defense of consent, Scoggins has failed to rebut the strong
presumption that no reasonable counsel would have employed the strategy now at
issue. See Goodspeed, 187 S.W.3d at 392. Because the record does not rebut the
presumption that trial counsel’s decisions regarding trial strategy were reasonable,
we overrule issue one.
In issue two, Scoggins complains that he was improperly punished as a
habitual offender. Scoggins makes two arguments in support of his issue. He
argues that his prior misdemeanor conviction for a crime classified as a crime of
family violence cannot be used to enhance a third-degree felony to a second-degree
felony. Additionally, Scoggins argues that the evidence is insufficient to support
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the jury’s findings that he had previously been convicted of committing three other
felonies.
First, we address Scoggins’ argument that a misdemeanor is not “an offense”
available to elevate his offense to a third-degree felony. See Tex. Penal Code Ann.
§ 22.01(b-1)(2). Section 22.01(b-1) of the Penal Code provides that assault is a
felony of the second degree if:
(1) the offense is committed against a person whose relationship to or
association with the defendant is described by Section 71.0021(b),
71.003, or 71.005, Family Code;
(2) it is shown on the trial of the offense that the defendant has been
previously convicted of an offense under this chapter, Chapter 19, or
Section 20.03, 20.04, or 21.11 against a person whose relationship to
or association with the defendant is described by Section 71.0021(b),
71.003, or 71.005, Family Code; and
(3) the offense is committed by intentionally, knowingly, or recklessly
impeding the normal breathing or circulation of the blood of the
person by applying pressure to the person’s throat or neck or by
blocking the person’s nose or mouth.
Id. § 22.01(b-1).
The plain language of subsection two defeats Scoggins’ argument. The
phrase “under this chapter” refers to Chapter 22 of the Penal Code. See id. §
22.01(b-1)(2). Misdemeanor assault is included in Chapter 22. Compare id. §
22.01(b) (punishing most assaults, such as those not involving family violence, as
misdemeanors), with id. §§ 22.01(b)(2), 22.01(b-1) (punishing other assaults, such
7
as those involving family violence, as felonies). Additionally, other types of crime
punished as misdemeanors are also found in Chapter 22. See id. §§ 22.05(a), (e)
(deadly conduct), 22.07(a)(1)-(3) (terroristic threats), 22.08 (aiding suicide), 22.10
(leaving a child in a vehicle) (West 2011). Thus, under the statute’s plain language,
the offenses referred to in subsection two are not limited to felonies. See id. §
22.01(b-1)(2). We conclude that Scoggins’ prior misdemeanor conviction for
assault, which includes a finding of family violence, is one of the types of
convictions that can be used to elevate the crime with which he was charged to a
second-degree felony.
Scoggins also argues that he was improperly punished as a habitual offender
because the evidence does not support two of three jury findings that concern his
prior felony convictions. Under the Penal Code, a defendant’s punishment may be
increased to a life sentence if it is shown that the defendant has two previous
felony convictions, other than state jail felonies. See id. § 12.42(d). Scoggins
argues the evidence does not support the jury’s finding that he was convicted of
burglary in Mississippi; he also argues the evidence does not support the jury’s
finding that he was convicted for unlawfully using a motor vehicle in Louisiana.
We view the evidence in the light most favorable to the State to determine
whether the evidence is legally sufficient to support the jury’s findings based on
8
the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App.
2010) (plurality op.). “If the State alleges more than two convictions for habitual
offender purposes the terms of Sec. 12.42(d), supra, will be met if there is
sufficient evidence for at least two of the convictions.” Tomlin v. State, 722
S.W.2d 702, 705 (Tex. Crim. App. 1987).
“To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists, and
(2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919,
921 (Tex. Crim. App. 2007). “There is no ‘best evidence’ rule in Texas that
requires that the fact of a prior conviction be proven with any document, much less
any specific document.” Id. To prove that the defendant has a prior conviction, the
State is not necessarily required to introduce a certified copy of the defendant’s
final judgment and sentence, as the State may use other documents to establish the
existence of the prior conviction if those documents contain sufficient information
about the conviction. See id. at 921-22. Documents that serve as “‘the functional
equivalent’” of the judgment and sentence may be sufficient evidence of a prior
conviction even in the absence of a true and correct copy of the judgment and
sentence from the prior conviction. See id. at 920; Langston v. State, 776 S.W.2d
9
586, 588 (Tex. Crim. App. 1989); see also Tex. Code Crim. Proc. Ann. art. 42.01
(West Supp. 2012). Additionally, with respect to defendant’s prior convictions
from criminal proceedings in other states, courts are allowed to assume, in the
absence of proof otherwise, that the laws of the other state are the same as the laws
of the State of Texas. See Langston, 776 S.W.2d at 587-88.
We first address Scoggins’ arguments that are directed to his Louisiana
conviction, using a motor vehicle without its owner’s authorization. According to
Scoggins, the Louisiana pen packet the trial court admitted into evidence contains
no signed judgment. Scoggins also contends the certification accompanying the
pen packet is defective. However, Scoggins failed to object during the trial when
the State introduced the pen packet, nor did he object when a fingerprint analyst
used the fingerprints in the pen packet to identify Scoggins as the person who the
pen packet showed had served time in the penitentiary for using a motor vehicle
without proper authorization.
The Louisiana pen packet includes an affidavit executed by the custodian of
records for the Louisiana Department of Public Safety and Corrections. The
custodian’s affidavit certifies that the documents in the pen packet are true copies
of the records of the Louisiana Department of Public Safety and Corrections
regarding Scoggins. The pen packet also contains a document signed by the
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Deputy Clerk of Calcasieu Parish and dated November 26, 2001, certifying that the
document is a “TRUE COPY[.]” The November 26 document bears no title, but is
styled “State Vs. COLUMBUS SCOGGINS[,]” and the document includes the
name of the presiding judge, the city and parish of conviction, the case number, the
charge (unauthorized use of a motor vehicle), Scoggins’ plea (guilty), the sentence
(six years), and the credit that Scoggins received for the time that he served. Thus,
the November 26 document contains several of the items that would be found in a
judgment rendered by a court in Texas. See Tex. Code Crim. Proc. Ann. art. 42.01.
While Scoggins complains that the document is not signed by a judge, the Court of
Criminal Appeals has held that such a failure does not render a conviction void for
enhancement purposes. See Emerson v. State, 476 S.W.2d 686, 688 (Tex. Crim.
App. 1972). Additionally, the pen packet contains a document charging Scoggins
with using a motor vehicle without authorization, as well as another document
showing the projected date of Scoggins’ release based on the sentence Scoggins
received on the conviction for using a motor vehicle without proper authorization.
In the light most favorable to the judgment and the evidence admitted during the
trial, we conclude the pen packet provides legally sufficient evidence to support the
jury’s finding that Scoggins was convicted in Louisiana for using a motor vehicle
without authorization.
11
Scoggins also complains that the State did not provide legally sufficient
evidence to show that the crime of unauthorized use of a motor vehicle is a felony
under Louisiana law. However, the documents in the pen packet in evidence show
that Scoggins was sentenced to the penitentiary. “For the purpose of enhancing
punishment, an out-of-state conviction is classified as a third degree felony when
‘confinement in a penitentiary is affixed to the offense as a possible punishment.’”
Trotti v. State, 698 S.W.2d 245, 246 (Tex. App.—Austin 1985, pet. ref’d) (citing
Tex. Penal Code Ann. § 12.41(1) (West 2011)); see Golden v. State, 874 S.W.2d
366, 368 (Tex. App.—Beaumont 1994, pet ref’d). We conclude that Scoggins’
Louisiana conviction qualifies as a felony offense and that it was properly used to
enhance his punishment. See Tex. Penal Code Ann. §§ 12.41(1), 12.42(d).
Scoggins’ remaining complaint concerns his claim that the evidence did not
show he was convicted of burglary in Mississippi on May 8, 2006; instead,
Scoggins asserts that the evidence shows that he was convicted for that burglary on
March 11, 1998. The State concedes the jury’s finding regarding the date of the
conviction for the burglary is inconsistent with the evidence. However, the State
contends that Scoggins’ conviction was properly enhanced to a life sentence based
on his Mississippi conviction for aggravated assault, a conviction that Scoggins has
not challenged, and his Louisiana conviction for using a motor vehicle without its
12
owner’s authorization. See id. § 12.42(d) (authorizing an enhanced life sentence
where the defendant is shown to have previously been finally convicted of two
prior felony offenses). We conclude there is legally sufficient evidence to support
the jury’s findings that Scoggins was convicted of aggravated assault in
Mississippi, that he was convicted of unlawfully using a motor vehicle in
Louisiana, and that both of these crimes were felonies. We also agree with the
State’s argument that the jury’s findings regarding these two prior felonies
authorized the jury to assess a life sentence. See id.
Since Scoggins has not demonstrated that he is being improperly punished as
a habitual offender, we overrule issue two. Having overruled both of Scoggins’
issues, we affirm the trial court’s judgment.
AFFIRMED.
________________________________
HOLLIS HORTON
Justice
Submitted on December 27, 2012
Opinion Delivered June 26, 2013
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.
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