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Donald v. State

Court of Appeals of Texas, Fourteenth District

September 19, 2017


         On Appeal from the 149th District Court Brazoria County, Texas Trial Court Cause No. 77089-CR

          Panel consists of Chief Justice Frost and Justices Donovan and Wise. (Donovan, J., dissenting).


          Ken Wise Justice.

         A jury convicted appellant of assaulting a family member, elevated to a felony by a prior conviction for another family-violence assault. See Tex. Penal Code § 22.01(b)(2)(A). The jury assessed punishment at seven years' confinement.

         In a single issue, appellant contends that his trial counsel rendered ineffective assistance by, among other things, stipulating to three of the four jurisdictional prior convictions for family-violence assault that were alleged in the indictment. This case presents the rare situation in which we can conclude that counsel was deficient as a matter of law for stipulating to excess prior convictions that otherwise were inadmissible. Our confidence in the verdict is undermined because the evidence of guilt was not overwhelming, and the jury heard highly prejudicial evidence about multiple prior convictions for the same offense for which appellant was being tried.

         We reverse the trial court's judgment and remand for a new trial.

         I. Background

         A. Indictment and Plea

         The State indicted appellant for felony assault against a family member, Sheila Pennington, a person with whom appellant had a dating relationship. The State alleged that appellant caused bodily injury "by striking said Sheila Pennington with the defendant's hand." To elevate the crime to a felony, the State was required to allege and prove one prior family-violence assault conviction. See Tex. Penal Code § 22.01(b)(2)(A). The indictment alleged four prior convictions from April 2009, May 2011, November 2013, and July 2015. At the beginning of trial, the State read the entire indictment in front of the jury. Appellant pleaded "not guilty." Then, the trial court asked whether appellant was pleading "true" or "not true" to each "enhancement" paragraph. Appellant pleaded "not true" to the April 2009 conviction and "true" to the other three.

         B. Guilt-Innocence Evidence

         The parties do not dispute the existence of a dating relationship. But, evidence of the assault was contested. At about 4:45 a.m. on the morning of the incident that led to the indictment, Pennington's former friend, Annette Bieber, dialed 911 to report that appellant had "beat the hell out of" Pennington. A recording of the 911 call was admitted as an exhibit. Bieber testified that Pennington had called Bieber and said that appellant had "beat her up real bad." Bieber did not live nearby and was not present during the assault.

         City of Alvin Police Department Officer Robert Vincent testified that he responded to the call. He described Pennington as being very distraught and crying. He did not believe that Pennington was impaired by any narcotics at the time.

         Officer Vincent's body-worn camera footage was admitted as an exhibit in its entirety. In the video, Pennington told Vincent that appellant had been at the house of appellant's friend, Quinton Barden.[1] Pennington said that appellant returned home to charge his iPhone at about 4:00 a.m. He was drunk and "on bars, " and a disagreement ensued about whether Pennington had taken his phone. Pennington said that appellant started "beating the shit out of" her and hit her in the back of the head with his fist.

         Pennington said that appellant beats her every week, and he had choked her a week before. She said that he "always" beats her in the back of the head so nobody can see it. She said that appellant beat her last October and went to jail for it, and she got him out by signing an affidavit of non-prosecution. She said that she did not like appellant seeing Barden because Barden was a "crack head" who used appellant to sell drugs.

         When Vincent asked her if she wanted to file charges, she said that appellant said that appellant's friends would "go after" her family. She said that appellant had been in and out of prison and was a thug. She said that appellant threatened to kill her whole family and rape her mother and daughter. She said that appellant's friends would lie for him and say that he never left Barden's house that night. She said that appellant had been texting her, saying that all his friends had been with him and heard his "big mouth all night."[2] She also said that appellant took $200 from her, that he never works, and that he just "takes, and takes, and takes."

         An emergency medical technician looked at Pennington's head and told Vincent that there was a quarter-size knot on the back. At trial, a picture of the back of Pennington's head was admitted as an exhibit. Pennington made a brief written statement concerning the events and her desire to prosecute. When Vincent returned to his patrol car to do a warrant check, the body camera recorded Vincent saying, "She's not going to cooperate anyways once it gets to court; she's going to do exactly what she did the last time."

         Vincent was correct. Shortly before trial, Pennington gave a written statement to the district attorney's office, claiming that she had lied in her earlier statements. The State called her as a witness at trial, nonetheless. Pennington testified that she was "tripping on acid" that night. She testified that she injured her head because she slipped and fell off her porch. She testified that appellant never hit her. She had been mad at appellant because she was not invited to Barden's house, and she thought appellant was "over there with other chicks." She testified that her friend, Bieber, had a vendetta against appellant because Pennington started dating appellant only three months after Pennington's former husband had died. Pennington believed that Bieber was trying to get Pennington in trouble; Pennington had told Bieber that Pennington was high and had "dope" in the house. Pennington claimed to have lied to the police because she was scared they would find acid in her house. Through questioning by the State, Pennington also admitted to making many of the allegations in her first written statement to police.[3]

         The State also called Pennington's adult son, who was in jail at the time of trial. He testified that he had observed Pennington high on acid in the past. He corroborated Pennington's story about how and when she bought the acid: he directed her to an old friend who used to sell it.

         After the State's witnesses testified, appellant's trial counsel stipulated to the three allegations of jurisdictional prior convictions to which appellant had pleaded "true." The State abandoned the first allegation. The trial court admitted Exhibits 5, 6, and 7. Exhibit 5 is the complaint, information, docket entry, and judgment concerning appellant's May 2011 conviction for "assault causes bodily injury family violence, " committed by "striking said Misty Brogan about the body with the defendant's hand." The judgment shows that appellant pleaded guilty and was assessed punishment at twenty-two days' confinement. Exhibit 6 is a November 2013 judgment of conviction for "assault family violence, " showing that appellant pleaded "guilty" and was assessed punishment at ten months' confinement. Exhibit 7 is a July 2015 judgment of conviction for "assault causes bodily injury family member, " showing that appellant pleaded "guilty" and was assessed punishment at thirty days' confinement.

         Appellant testified on direct examination that he did not hit Pennington, and he had left the house sometime between 7:00 p.m. and 9:00 p.m. that night to go to Barden's house. He testified that he drank a lot that night, and he did not go home. He admitted that he was a "pothead." He also admitted that for two of the prior convictions, he was "completely guilty." But for the last one, he claimed that Pennington had attacked him with a broomstick, and he pleaded "guilty" because "they held me in jail so long."

         On cross-examination, appellant agreed that he had "already stipulated true" for the convictions from Exhibits 5, 6, and 7.[4] Appellant agreed with the State that he was convicted of "family violence" in April 2009 and "assault family violence" in November 2013.[5] He also testified that he had been convicted of assaulting Pennington about a year and a half before this trial, but he "didn't do it." He testified that he had two theft convictions and that he was convicted of felony theft in May 2011. He acknowledged that he pleaded "guilty" to a "state jail offense of theft with two or more priors, " but he did not consider himself a thief. He did not consider his "theft by check" conviction in 1998 to be a "theft." He testified that he was "thrown in jail forever" on the theft charge. And, he admitted that he was convicted of attempted escape and served forty-eight days in state jail on that charge.

         C. Jury Charge and Closing Arguments

         The jury charge included a paragraph stating that the jurisdictional prior conviction was not contested and could not be used to determine guilt.[6] But the application paragraph also required the jury, in order to find appellant guilty, to find that appellant previously had been convicted of one of the three offenses for which appellant had pleaded "true." The charge included paragraphs about each of the three prior convictions from May 2011, November 2013, and July 2015. The charge did not include any other instructions concerning prior convictions or extraneous offenses.

         During closing argument, the State told the jurors to focus on the body camera footage because the "body camera doesn't lie." And the State noted that Pennington's written statement was not admitted, but "the words of her statement came in" through her testimony on the witness stand. The State emphasized that appellant was a convicted felon who had been "convicted of abusing her before." The State told the jury to "keep that in mind when judging his credibility, " and the State pointed out that appellant had "stipulated to those priors." The State referred to Pennington as a "puppet" and described the situation as "[c]lassic battered women." The State asked the jury to "send a message to him that this has got to stop."

         Defense counsel argued that Pennington had lied to the police because she was on acid and scared of having her house searched for the remaining drugs. Counsel also addressed the prior convictions, pointing to the language in the jury charge stating that the jurisdictional prior convictions could not be used for any purpose in determining guilt. Counsel explained, "Just because someone kicked their dog yesterday doesn't mean they kicked their dog today."

         D. Punishment

         Appellant went to the jury for punishment. The court admitted Exhibits 4 and 9 through 22 concerning appellant's criminal history.[7] Appellant testified at punishment and explained that he got an evading-arrest conviction because he had accumulated some speeding tickets, and an officer had told him "if he caught me driving again he was going to take me to jail." He got a theft conviction because his former girlfriend's mother stole his checkbook, and he "couldn't sort them out, " and he wrote two bad checks for groceries. He explained that he got another theft conviction because he was "hanging out with the wrong people, " and a woman had stolen a pair of pants, and appellant had offered to pay for them. Regarding his various assault convictions, appellant testified, "I guarantee you, in every one of those assault charges, I was the one that was beat up."

         On cross-examination, appellant testified that he received a conviction for unlawfully carrying a handgun because he bought the gun for his dad. Regarding a prior criminal-mischief charge, appellant claimed that the complainant drove over appellant and "broke the whole right side of my body." Regarding a prior conviction for interfering with an emergency call, appellant claimed that his sister threw a phone at him and "hit me upside the head and knocked me out." He acknowledged that his April 2009 conviction for "assault causes bodily injury family violence" was against a woman he went to high school with, and his May 2011 conviction for "assault causes bodily injury family violence" was against his sister. His November 2013 conviction for "assault family violence" was against his brother.

         Appellant agreed with the State that he had been arrested about twenty-five times. When the State asked if appellant agreed with the jury's verdict, appellant responded, "Show me where you found me guilty. Show me where you put me in the house. I got two other friends that'll come up here and testify right now that I was at their house all night."[8]

         The jury charge on punishment did not instruct the jury that in order to consider extraneous crimes or bad acts, it had to be shown beyond a reasonable doubt ...

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