Opinion issued April 5, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00348-CR
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rydell j. arnolie, Appellant
V.
The State of Texas, Appellee
On Appeal from the 182nd Judicial District Court
Harris County, Texas
Trial Court Case No. 1187494
MEMORANDUM OPINION
A jury found appellant, Rydell J. Arnolie, guilty of the offense of murder[1] and assessed his punishment at confinement for life. In seven issues, appellant contends that his trial counsel provided ineffective assistance at the punishment phase of trial and the trial court erred in not submitting a jury instruction that required corroboration of a “jail house informant’s” testimony.
We affirm.
Background
Roger Morris testified that on September 8, 2011, he and his brother, Kirtrell Morris, the complainant, drove to an apartment complex so that he could purchase marijuana and the complainant could talk to a “girl.” Roger stated that he had stopped at this complex on many prior occasions to buy narcotics from appellant and another man. Roger saw appellant walk to his car, and appellant asked Roger for a ride. Roger agreed, and appellant told Roger to wait in the car while he went to get “some things.” Two minutes later, Roger, who was still sitting in the car, heard the sound of gunshots coming from the back window, and he then saw appellant standing over him and shooting him. Roger stated that appellant shot him three times and ran away. Roger was in shock, and then he realized the complainant was not responsive. After calling his mother and aunt, Roger called for emergency assistance, but he then drove his car to a hospital and summoned an ambulance for help. Roger received medical treatment for his injuries, and he later learned that the complainant had died from gunshot wounds sustained in the shooting.
Roger explained that he had known appellant for three months prior to the shooting and had seen appellant “almost” every day for the purpose of buying heroin from him. Roger also noted that he would sometimes “trade favors” with appellant, so that he would receive narcotics in exchange for giving appellant or appellant’s girlfriend a ride in a car. On cross-examination, Roger conceded that he had been using heroin and marijuana on the day of the shooting, but he denied that the narcotics had affected his perception of the events.
Houston Police Officer B. Nabors testified that several days after the shooting, he obtained an audio-taped statement from Roger. Roger stated that he knew the identity of the assailant and admitted to having had purchased narcotics from the assailant. Nabors considered a suspect in the shooting, placed a photograph of the suspect in a photographic array, and showed it to Roger. A photograph of appellant was not included in the array, and Roger told Nabors that the assailant was not among the individuals pictured in the array. After further investigation, appellant showed Nabors where he believed appellant’s brother lived. Nabors then considered appellant as a suspect, placed a photograph of appellant in a photographic array, and showed it to Roger. After viewing the array, Roger identified appellant as the assailant. Nabors explained that Roger was “fairly sure” that appellant was the assailant and Roger’s identification was “positive.”
Ineffective Assistance
In his first through sixth issues, appellant argues that his trial counsel provided ineffective assistance at the punishment phase of trial because he “failed to request disclosure by the State of the other bad acts it intended to introduce,” “failed to object to the testimony of the other bad acts,” and “failed to request a charge requiring corroboration of the jail house informant’s testimony.”[2]
In order to prove an ineffective assistance of counsel claim, appellant must show that his trial counsel’s performance fell below an objective standard of reasonableness and, but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A failure to make a showing under either prong defeats a claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Allegations of ineffectiveness must be firmly founded in the record. See Bone v. State, 77 S.W.3d 828, 833 & n. 13 (Tex. Crim. App. 2002). When the record is silent, we may not speculate to find trial counsel ineffective. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation, if any can possibly be imagined, and will not conclude the challenged conduct constituted deficient performance 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).
Appellant first asserts that his trial counsel was ineffective during the punishment phase of trial by not timely requesting disclosure of “other bad acts” that the State intended to use against him. See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2011). Appellant asserts that his counsel was “caught totally unaware of prejudicial damning” testimony provided by his former girlfriend during the punishment phase of trial concerning two prior incidents in which appellant had allegedly assaulted her. Specifically, appellant asserts that his counsel was surprised by evidence that during these two prior alleged assaults appellant had “slammed” his girlfriend against a wall, choked and punched her, told her he was going to hurt her, paced around with a gun, put a gun to her head, wrapped up towels to tuck under the door while threatening to kill her in front of their children, and kicked her in the stomach while she was pregnant and while telling her to “get rid” of the baby.
After a finding of guilt, “evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing,” including “the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried,” and, “notwithstanding” Texas Rules of Evidence 404 and 405, “evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2011). On timely request of a defendant, the State shall provide “notice of intent to introduce evidence under this article.” Id. art. 37.07, § 3(g). The purpose of article 37.07, section 3(g) is to avoid unfair surprise and “trial by ambush.” Roman v. State, 986 S.W.2d 64, 67 (Tex. App.—Austin 1999, pet. ref’d); Nance v. State, 946 S.W.2d 490, 493 (Tex. App.—Fort Worth 1997, pet. ref’d).
The clerk’s record includes a copy of the State’s Amended Notice of Intention to Use Extraneous Offenses and Prior Convictions, which the State provided to appellant’s trial counsel. See Tex. R. Evid. 404, 609; Tex. Code Crim. Proc. Ann. arts. 37.07, 37.08 (Vernon 2006). Within its notice, the State disclosed two alleged assaults committed by appellant against his girlfriend. First, the State disclosed an incident in May 2009 in which appellant allegedly threatened to kill his girlfriend and committed assault against her “by placing his hand on [her] throat and by choking [her] throat.” Second, the State disclosed an April 2009 incident in which appellant allegedly “committed aggravated assault by placing a firearm” to his girlfriend’s head. Additionally, in its Brady[3] notice, the State disclosed that it had subpoenaed appellant’s girlfriend as a witness for the State. Because the record indicates that appellant’s counsel received notice that the State, pursuant to article 37.07, intended to refer to the two alleged prior assault incidents against appellant’s girlfriend, the purpose of this statutory provision was fulfilled, and we reject appellant’s ineffective assistance complaint made on this ground.[4] See Autry v. State, 27 S.W.3d 177, 182 (Tex. App.—San Antonio 2000, pet. ref’d) (stating that counsel’s “failure to file pre-trial motions generally does not result in ineffective assistance of counsel” and explaining that counsel was not ineffective for allegedly failing to request notice of State’s intent to introduce evidence of extraneous offenses because counsel “may have received oral notice of the State’s intent to introduce the evidence at punishment phase”).
Appellant next asserts that his counsel was ineffective during the punishment phase of trial for not objecting to evidence whose relevance was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Appellant asserts that there was no probative value of the evidence concerning his alleged abuse of his former girlfriend and that such evidence had nothing to do with whether he committed the offense of murder.
A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. Flores v. State, 125 S.W.3d 744, 746 (Tex. App.—Houston [1st Dist.] 2003, no pet.). As noted above, the State may offer evidence as to any matter the court deems relevant to sentencing, including the defendant’s character and evidence of other extraneous crimes or bad acts. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). At the punishment phase of trial, relevant evidence is that which “assists the fact finder in determining the appropriate sentence given the particular defendant in the circumstances presented.” Flores, 125 S.W.3d at 746. However, a trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. We review a trial court’s decision regarding the admissibility of relevant evidence for an abuse of discretion. Flores, 125 S.W.3d at 746.
By definition, evidence admitted under article 37.07, section 3 need not be relevant to appellant’s guilt for the offense for which he has already been convicted. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Although the State likely presented this evidence in support of its request to the jury for the imposition of a substantial sentence of confinement, the record is silent as to why counsel elected not to object to the admission of the evidence concerning appellant’s assaults of his girlfriend. Based upon our review of the record, we cannot say that counsel was ineffective for failing to object to the evidence on the ground that its relevance was substantially outweighed by the danger of unfair prejudice. See Young v. State, 283 S.W.3d 854, 877 (Tex. Crim. App. 2009) (noting that “all evidence connecting a defendant with a particular crime is highly prejudicial,” and holding that because “evidence of the extraneous shooting was clearly probative of whether the appellant would be a future danger,” it could not conclude that “probative value of the extraneous shooting was substantially outweighed by the danger of unfair prejudice”); Watkins v. State, No. 10-02-042-CR, 2003 WL 21357267, at *4 (Tex. App.—Waco June 11, 2003, pet. ref’d) (mem. op.) (noting that record was silent as to why counsel failed to object evidence of other bad acts, and presuming counsel’s conduct was reasonable); White v. State, No. 05-99-01320-CR, 2001 WL 541088, at * (Tex. App.—Dallas May 23, 2001, pet. ref’d) (not designated for publication) (holding that “evidence of an unadjudicated domestic assault was relevant because it provided useful information for the jury to use in determining appellant’s sentence”).
Finally, appellant asserts that his counsel was ineffective during the punishment phase of trial in not requesting a jury instruction that requires corroboration of testimony provided by a “jail house informant.” The record reflects that Roger, at the time of the underlying trial, had been incarcerated in Louisiana on unrelated charges and had been transferred to Harris County so that he could testify. While awaiting trial, Roger was placed in the same holding cell in which appellant was located. Roger stated that being placed in the same cell as appellant was “pretty scary.” Although he agreed that appellant had not threatened him while they were incarcerated in the same cell, Roger stated that appellant had told him that he did not mean to shoot or kill Roger’s brother. Appellant further told Roger that he would “gladly provide” anything that he could in order for Roger to not testify.
Article 38.075 of the Texas Code of Criminal Procedure provides,
(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code.
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed.
Tex. Code Crim. Proc. Ann. art. 38.075 (Vernon Supp. 2011).
Article 38.075 does not apply to the instant case because Roger testified as an eyewitness to the murder, not simply a jail-house informant, and Roger’s punishment-phase testimony concerning his conversation with appellant while incarcerated in the same cell was not introduced for purposes of convicting appellant. Thus, we cannot say that trial counsel was ineffective in not requesting an instruction under article 38.075.
In sum, appellant has not, in regard to the punishment phase of trial, demonstrated that his trial counsel’s performance fell below an objective standard of reasonableness. Accordingly, we hold that appellant has not satisfied Strickland’s first prong.
We overrule appellant’s first six issues.
Jury Instruction
In his seventh issue, appellant argues that the trial court erred in not submitting to the jury an instruction that required corroboration of a “jail house informant’s” testimony under article 38.075.
We review jury charge error by considering whether (1) error exists in the charge and (2) if so, whether sufficient harm resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). As explained above, article 38.075 does not apply to Roger’s punishment-phase testimony. Accordingly, we hold that the trial court did not err in not sua sponte submitting to the jury an instruction consistent with this article 38.075.
We overrule appellant’s seventh issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2011).
[2] See Tex. Code Crim. Proc. Ann. art. 38.075 (Vernon Supp. 2011).
[3] See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
[4] To the extent that appellant complains that some of the specific factual allegations made by his girlfriend in her punishment-phase testimony concerning appellant’s prior assaults were not disclosed in this notice, we note that the record does not support appellant’s complaint that his girlfriend testified that she was “slammed” against the wall. Although the girlfriend’s specific testimony concerning her pregnancy also was not contained in the State’s notice, the specific incidents of assault were disclosed, and we cannot conclude that appellant’s trial counsel was ineffective for failing to request disclosure of such specific, factual information in the State’s notice. The record also reflects that appellant’s trial counsel met with appellant’s girlfriend “on many occasions” prior to trial and, although his questioning during the punishment phase of trial reflects that he may have been unaware of the girlfriend’s specific factual allegations of assault, counsel extensively cross-examined the girlfriend concerning these allegations and sought to discredit her testimony.