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Donald v. State

Court of Appeals of Texas, Fourteenth District

February 27, 2018


         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.



         A jury convicted appellant of assaulting a family member, elevated to a felony by a prior conviction for a similar offense. See Tex. Penal Code § 22.01(b)(2)(A). On original submission, a divided panel of this court sustained appellant's ineffective-assistance challenge, reversed appellant's conviction and remanded for a new trial. The State filed a motion for rehearing. We grant the State's motion, withdraw the majority and dissenting opinions of September 19, 2017, and issue this opinion on rehearing.

         In a single issue, appellant contends that his counsel rendered ineffective assistance by (1) failing to investigate and present testimony from several alibi witnesses, (2) failing to object to hearsay and request a limiting instruction regarding prior inconsistent statements made by the complainant, (3) stipulating to more than one jurisdictional prior conviction, and (4) failing to object to evidence of extraneous offenses at punishment or to request a beyond-a-reasonable-doubt instruction.

         Trial counsel has not been afforded the opportunity to explain her actions, and appellant has not rebutted the strong presumption of reasonable professional assistance. Thus, under the deferential standard of review for ineffective-assistance claims raised for the first time on direct appeal, we must affirm.

         I. Background

         A. Indictment and Plea

         The State indicted appellant for felony assault against a family member-a person with whom appellant had a dating relationship. The State alleged that appellant caused bodily injury by striking the complainant with the appellant'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.

         B. Voir Dire

         The State discussed "recanting victims" during voir dire and asked the venire if they could "figure out which version is the truth because, you know, a lot of times there are situations like this with a recanting victim." The State told the venire that in a situation with a recanting victim, they would "decide on which version is the truth."

         Appellant's trial counsel told the venire that sometimes people lie. She said that when a witness gets on the stand, the jurors would "judge whether you believe, as a juror, whether they're lying or not." Counsel asked the venire why a person might lie, and she said that sometimes people might not tell the truth to police officers.

         C. Reading Indictment and Pleading

         After voir dire, the State read the entire indictment in front of the jury, including the allegations of four prior convictions for family-violence assault. Appellant pleaded "not guilty." Then, the trial court asked whether appellant was pleading "true" or "not true" to each "enhancement" paragraph.[1] Appellant pleaded "not true" to the April 2009 conviction and "true" to the other three.

         D. Opening Statement

         Trial counsel made an opening statement, contending that the evidence would show that the complainant was high on acid the night of the alleged offense. Counsel said that the complainant made a statement to the police, but she was "mad at him, and she knew how to put him in jail." Counsel said that the complainant realized "what repercussions can come from a big lie." Counsel finished her statement by explaining a decision the jury would need to make in this case:

So then it's going to come to you: Was she lying then? Is she lying now or did she lie or is she a liar? And if she's a liar, is she a liar for all purposes or is she a liar sometimes? That'll be up to you. She's a grown woman. Thank you.

         E. Guilt-Innocence Evidence

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

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

         The officer's body-worn camera footage was admitted as an exhibit in its entirety. In the video, the complainant told the officer that appellant had been at the house of appellant's friend.[2] The complainant 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 the complainant had taken his phone. The complainant told the officer that appellant started beating her and hit her in the back of the head with his fist.

         The complainant 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 his friend because the friend was a "crack head" who used appellant to sell drugs.

         When the officer asked if the complainant 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 his friend'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."[3] 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 the complainant's head and told the officer that there was a quarter-size knot on the back. At trial, a picture of the back of the complainant's head was admitted as an exhibit. The complainant made a brief written statement concerning the events and her desire to prosecute. When the officer returned to his patrol car to do a warrant check, the body camera recorded him 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."

         The officer was correct. Shortly before trial, the complainant 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. She 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 the other house, and she thought appellant was "over there with other chicks." She testified that her former friend had a vendetta against appellant because the complainant started dating appellant only three months after the complainant's late husband had died. The complainant believed that her friend was trying to get the complainant in trouble; the complainant had told her friend that the complainant was high and had "dope" in the house. The complainant claimed to have lied to the police because she was scared they would find acid in her house. Through questioning by the State, the complainant also admitted to making many of the allegations in her first written statement to police.[4]

         The State also called the complainant's adult son, who was in jail at the time of trial. He testified that he had observed the complainant high on acid in the past. He corroborated the complainant's story about how and when she bought the acid: he directed her to his 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 the person "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 the complainant, and he had left the house sometime between 7:00 p.m. and 9:00 p.m. that night to go to his friend'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 the complainant had attacked him with a broomstick, and he pleaded "guilty" because "they held me in jail so long." He had only pushed her away to keep himself from getting hurt.

         On cross-examination, appellant agreed that he had "already stipulated true" for the convictions from Exhibits 5, 6, and 7.[5] Appellant agreed with the State that he was convicted of "family violence" in April 2009 and "assault family violence" in November 2013.[6] He also testified that he had been convicted of assaulting the complainant 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.

         F. Closing Arguments

         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 the complainant'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 the complainant 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 the complainant 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 language in the jury charge stating that the jurisdictional prior convictions could not be used for any purpose in determining guilt.[7] Counsel explained, "Just because someone kicked their dog yesterday doesn't mean they kicked their dog today."

         G. Punishment

         Appellant went to the jury for punishment. The court admitted Exhibits 4 and 9 through 22 concerning appellant's criminal history.[8] 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 in that case 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."[9]

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

         The jury assessed punishment at seven years' confinement.

         H. ...

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