Deborah Ann Ferrell A/K/A Deborah Ann Pierce v. State ( 2004 )


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  •                                                              11th Court of Appeals

                                                                      Eastland, Texas

                                                                            Opinion

     

    Deborah Ann Ferrell a/k/a Deborah Ann Pierce

    Appellant

    Vs.                   No.  11-03-00285-CR -- Appeal from Erath County

    State of Texas

    Appellee

     

    The jury convicted Deborah Ann Ferrell a/k/a Deborah Ann Pierce of theft over $1,500 but less than $20,000.  The trial court assessed her punishment at confinement in a State Jail Facility for 18 months.  We affirm.

    Appellant=s court-appointed counsel has filed a brief in which he states that he has conscientiously examined the record. After a thorough review of the record, counsel can find no ground of error that can be supported by the record. Following the procedures outlined in Anders v. California, 386 U.S. 738 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel has concluded that the appeal is without merit.  Counsel discusses the applicable law and concludes that there are no grounds upon which to predicate a reversal.

    Counsel furnished appellant with a copy of the brief and advised appellant of her right to review the record and file a pro se brief.  Counsel complied with the procedures outlined in Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, supra.


    The record shows that appellant moved into the home of Gaynelle Keeney to help care for her.   Keeney was 76 years old at the time of trial.  After appellant moved in, Keeney was hospitalized, but appellant continued to live in Keeney=s home. Keeney testified that sometime after returning home from the hospital, she noticed some of her rings were missing. Appellant was no longer working for her or living with her at the time Keeney discovered that the jewelry was missing.

    Appellant admitted taking the rings, but she testified that Keeney told her that she could have the rings.  Appellant said that Keeney told her to Ado something good@ with the rings.  Appellant testified that she took the rings to two different pawn shops and that she received a total of $300 for the rings.  Appellant said that she then gave the money to A[t]hree different ministries.@  Keeney testified that she did not give the rings to appellant and that she did not give appellant permission to sell the rings.  

    On April 26, 2004, appellant filed a pro se brief in which she asserts 50 points of error. In Points of Error Nos. 1 through 20 and 38, 39, 45, 46, 47, and 50, appellant argues that she received ineffective assistance of counsel.  In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).  We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Stafford v. State, supra.

    Appellant=s trial counsel represented her at the guilt/innocence phase of the trial.  The trial court appointed different counsel to represent appellant at the punishment phase of the trial and on appeal.   Appellant=s points of error allege ineffective assistance of counsel on the part of both of her court-appointed attorneys.  Appellant complains that her trial counsel was deficient in four areas:  her pretrial preparation, her performance at voir dire, her performance at trial, and her relationship with the district attorney. 


    Appellant brings several points of error challenging her trial counsel=s pretrial preparation.  Appellant first contends that her trial counsel should have sought a change of venue.  Keeney=s grandson is an assistant district attorney for Erath County.  Appellant asserts that, because of his position, she could not receive a fair trial in Erath County.  A defendant may file a motion for a change of venue supported by his own affidavit and the affidavit of at least two credible persons for either of the following reasons:

    1.  That there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial; and

     

    2.  That there is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial.

     

    TEX. CODE CRIM. PRO. ANN. art. 31.03(a) (Vernon 1989).  A defendant seeking a change of venue bears a heavy burden to prove the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial trial is doubtful.  McGinn v. State, 961 S.W.2d 161, 163 (Tex.Cr.App.1998).  The record shows that the district attorney for Erath County informed the jury panel of the relationship between the assistant district attorney and Keeney. The district attorney stated that the assistant district attorney had not been involved in the case.  Because of the heavy burden on a defendant seeking a change of venue, appellant=s trial attorney may have felt that the chance of succeeding on the motion was unlikely.  Appellant has not shown that her trial counsel was deficient in failing to seek a change of venue.

    Appellant alleges that her trial counsel=s pretrial preparation was ineffective because she did not file pretrial motions on appellant=s behalf.  Appellant argues that her trial counsel should have filed a motion to have the indictment unsealed, that she should have filed a request to limit the use of extraneous offenses, and that she should have filed a motion in limine to prevent the introduction of prejudicial evidence. The record contains a copy of the indictment.  The indictment does not contain any defects.  Appellant=s trial counsel was not ineffective in failing to file a motion to quash the indictment.  A defendant may petition a court to order the disclosure of information otherwise made secret by showing a particularized need.  TEX. CODE CRIM. PRO. ANN. art. 20.02(d) (Vernon Supp. 2004).  Appellant has not shown a Aparticularized need@ as required by Article 20.02(d).  Appellant has not shown that her trial counsel was ineffective in failing to request disclosure of  grand jury proceedings. 


    The record indicates that, in response to the motion of appellant=s trial counsel, the State provided appellant with notice of its intent to introduce evidence of extraneous offenses and bad acts committed by appellant pursuant to TEX.R.EVID. 404(b) and TEX.CODE CRIM. PRO. ANN. art. 37.07, ' 3(g) (Vernon Supp. 2004).  The State also provided appellant with a summary of the oral statement she made to Officer James Groves and  a list of potential witnesses.  The State noted that there was no exculpatory evidence available at the time of its response. The record does not support appellant=s argument that her trial counsel failed to file pretrial motions on her behalf.

    Appellant finally complains that trial counsel did not subpoena any witnesses to testify on her behalf.  Appellant contends that trial counsel talked to potential witnesses and tried to dissuade them from testifying on appellant=s behalf.  Appellant states in her brief that trial counsel believed all the potential witnesses on her behalf would only be able to provide hearsay evidence.  The main  fact issue to be determined in the case was whether Keeney gave appellant the jewelry.  Appellant has not shown that trial counsel=s decision not to subpoena her suggested witnesses was not based on sound trial strategy.  Thompson v. State, 9 S.W.3d 808 (Tex.Cr.App.1999).  The record does not show that trial counsel was deficient in her pretrial preparation.

    Appellant complains that her trial counsel was ineffective in the manner in which she conducted voir dire.  Appellant contends that trial counsel used peremptory strikes on behalf of the State.  The record does not support this argument.  Appellant also complains that her trial counsel did not object to the State=s failure to request a jury shuffle.  TEX. CODE CRIM. PRO. ANN. art. 35.11 (Vernon Supp. 2004) requires that the seating order of the venire panel be randomly shuffled at the request of either party.  Only one shuffle is required, regardless of which party makes the request. Ford v. State, 73 S.W.3d 923, 926 (Tex.Cr.App. 2002).  There is nothing in the record to show that the process of assembling a jury panel was subverted in some fashion to achieve a nonrandom listing of the venire. See Ford v. State, supra.

    Appellant next complains that her trial counsel did not make a Batson[1] challenge to any of the State=s peremptory challenges.  There is nothing in the record to suggest that any peremptory challenge by the State was racially motivated.  The record shows that appellant=s trial counsel questioned the jury panel and challenged a prospective juror for cause.  Appellant has not shown that her trial counsel was ineffective in voir dire.


    Appellant brings several points of error challenging her trial counsel=s performance at trial.  Appellant contends that her trial counsel did not aggressively cross-examine witnesses and that she did not Aattack@ Keeney.  Trial counsel cross-examined each of the State=s witnesses.  Appellant has not shown that the decision not to attack the witnesses was not based on sound trial strategy.  Thompson v. State, supra.

    Appellant complains that her trial counsel forced her to testify.  When trial counsel called appellant to testify, the trial court admonished appellant concerning her right not to testify.  Appellant told the trial court, A[I]f I don=t testify there=s no one else that can -- they will -- the jury will automatically have to accept the -- huh -- prosecutor=s.@ The trial court explained that appellant had to make the decision on whether or not to testify and stated, A[I]f you don=t want to I=m certainly not going to make you nor can your attorney.@  Appellant then acknowledged that she did not Ahave any other choice,@ and she voluntarily waived her constitutional protections.  The record does not support appellant=s argument.

    Appellant next complains that her trial counsel was deficient in failing to provide medical evidence of Keeney=s failing memory.  Trial counsel questioned Keeney about her health problems and about the medications she was taking.  Trial counsel also questioned Keeney concerning her memory of the dates she was in the hospital.    There is nothing in the record before us to show that Keeney=s medical records contained evidence favorable to appellant.  The record is silent as to trial counsel=s decision not to seek Keeney=s medical records.  Appellant has not overcome the presumption that trial counsel=s decision was based upon trial strategy.  Stafford v. State, supra; Prudhomme v. State, 47 S.W.3d 683, 691 (Tex.App. ‑ Texarkana 2001, pet=n ref=d).


    Appellant further argues that her trial counsel was ineffective because the evidence does not establish that all six rings belonged to Keeney.  Keeney testified at trial and identified the rings as belonging to her.  Appellant testified at trial, and she did not establish that two of the rings actually belonged to appellant.  Appellant contends that her trial counsel should have objected to the evidence concerning the value of the rings.  Keeney testified that the rings were worth $6,000.  The owner of property is competent to testify as to the value of his own property.  Sullivan v. State, 701 S.W.2d 905 (Tex.Cr.App.1986).  When the owner testifies about the value of his property, there is a presumption that he is testifying to an estimation of the fair market value.  Sullivan v. State, supra. Appellant has not shown that her trial counsel=s performance at trial was ineffective.

    Appellant complains that her trial counsel was ineffective because of  her relationship with the district attorney.  Appellant contends that, because the assistant district attorney is related to Keeney, her trial counsel cooperated with the State and failed to confront the assistant district attorney about his involvement in the case.  The record does not support this argument.

    Appellant contends that her counsel at punishment and on appeal was ineffective.  Appellant complains that counsel did not adequately prepare before filing the motion for new trial, that counsel did not provide her with a copy of the Anders brief, and that counsel gave her false information concerning her appeal bond.  Counsel filed a motion for new trial alleging that the verdict was contrary to the law and evidence.  TEX.R.APP.P. 21.3(h).  Counsel filed an Anders brief on January 20, 2004.  In that brief, counsel states that he provided a copy to appellant. Appellant indicates in her brief that she was released on bond pending appeal.  Appellant has not shown that her counsel at punishment and on appeal was ineffective.  Appellant=s Points of Error Nos. 1 through 20 and 38, 39, 45, 46, 47, and 50 are overruled.

    In Points of Error Nos. 21 through 25, 27 through 29, and 48, appellant argues that the State engaged in prosecutorial misconduct.  Appellant brings several points of error complaining that the State engaged in prosecutorial misconduct by stating the value of the rings to be $6,000. As previously stated, Keeney testified to the value of the rings.  Her testimony was sufficient to establish the value of the rings.  Sullivan v. State, supra.  Appellant complains that the State did not prove an essential element of the offense. After reviewing all of the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). After reviewing all of the evidence in a neutral light favoring neither party, we hold that the jury=s verdict is not so against the great weight of the evidence as to be clearly wrong and unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State 922 S.W.2d 126 (Tex.Cr.App.1996).


    Appellant further argues that the prosecutor engaged in misconduct in introducing evidence of extraneous offenses, in commenting on those offenses and appellant=s religious affiliation during closing arguments, in developing a trial strategy to prejudice appellant, and in conspiring with defense attorneys.  The State provided appellant with notice of its intent to introduce evidence of appellant=s extraneous offenses.  Rule 404(b).  The State=s complained-of statements during closing arguments were a summation of the evidence.  See Felder v. State, 848 S.W.2d 85, 94‑95 (Tex.Cr.App.1992), cert. den=d, 510 U.S. 829 (1993). The record does not support appellant=s argument that the State engaged in a strategy of prejudice against her or that the State conspired with defense attorneys. Appellant=s Points of Error Nos. 21 through 25,  27 through 29, and 48 are overruled.

    In Points of Error Nos. 26, 30 through 37, 40 through 44, and 49, appellant complains of the trial court=s errors. In Point of Error No. 26, appellant argues that the trial court incorrectly admonished her concerning her right not to testify.  This argument was previously discussed.  The record does not support this argument.  Point of Error No. 26 is overruled.  In Point of Error No. 30, appellant complains that the trial court erred in allowing appellant=s trial counsel to use peremptory strikes on behalf of the State before the voir dire process began. In Point of Error No. 33, appellant complains that the trial court erred in allowing Keeney to testify about the value of the rings.  Appellant further argues that two of the rings belonged to her.  Both of these points of error were previously discussed, and both are overruled.  In Point of Error No. 49, appellant states that the trial court erred in denying her bond pending appeal.  Again this point was previously discussed, and appellant indicates that she was released on bond.  Point of Error No. 49 is overruled.

    In Point of Error No. 31, appellant contends that the trial court erred in allowing witnesses to listen to the trial proceedings.   Mike Tumillo wrote a letter which was filed by the district clerk on July 17, 2003, and was included in the record.  The letter states that members of Keeney=s family were listening to the trial proceedings from the waiting area.  Appellant did not object at trial that the State was in violation of TEX.R.EVID. 614. Appellant has not preserved this complaint for review.  TEX.R.APP.P. 33.1.  Point of Error No. 31 is overruled.  In Point of Error No. 35, appellant states that the trial court should have a sign informing potential witnesses that Rule 614 has been invoked. Appellant has not preserved this complaint for review.  Rule 33.1.  Point of Error No. 35 is overruled.


    In Point of Error No. 32, appellant argues that Keeney=s daughter, who did not testify at trial, actually filed the charges against her in violation of appellant=s right to confront witnesses against her. The confrontation right does not speak to the State=s burden of production or the number of witnesses required for conviction.  See Henderson v. State ,14 S.W.3d 409, 413 (Tex.App. ‑ Austin 2000, no pet=n); Shelvin v. State, 884 S.W.2d 874, 877 (Tex.App. - Austin 1994, pet=n ref=d). As a general rule, the State is not required to produce every conceivable witness with knowledge of the case. Henderson v. State, supra; Shelvin v. State, supra.  Point of Error No. 32 is overruled.

    In Points of Error Nos. 34, 40, and 41, appellant complains that the trial court erred in its handling of physical evidence at trial.  Appellant states that the trial court erred in allowing pictures of the rings to be included in the record on appeal, that the State failed to maintain a proper chain of custody for the rings, and that the trial court erred in returning the rings to Keeney.  The identity of the rings was not an issue at trial.  Keeney identified the rings as belonging to her, and we have found the evidence both legally and factually sufficient to support appellant=s conviction.  Physical evidence and original exhibits are not required to be included in the reporter=s record.  See UNIFORM FORMAT MANUAL FOR TEXAS COURT REPORTERS, ' 18.1 (eff. May 1, 1999). The original exhibits were not necessary for a disposition of the appeal.  See TEX.R.APP.P.  34.6(g). Appellant complains that two of the rings belonged to her and that, because the trial court returned the rings to Keeney, Keeney has in effect stolen the rings from her.  The evidence in the record before us does not support appellant=s argument that two of the rings belonged to her. Moreover, that issue would be a separate cause of action that is not before this court.  Points of Error Nos. 34, 40, and 41 are overruled.

    In Point of Error No. 36, appellant complains that the trial court erred in allowing the jury to be prejudiced by the State.  The record does not support this argument.  Point of Error No. 36 is overruled.

    In Point of Error No. 37, appellant contends that a combination of all of the errors resulted in her being denied a fair trial. We find that the evidence is both legally and factually sufficient to support appellant=s conviction.  The record before us does not show that appellant failed to receive a fair trial.  Point of Error No. 37 is overruled.


    In Points of Error Nos. 42, 43, and 44, appellant complains that her pending motions before this court for a copy of the presentence investigation report and other requests for information have not been ruled upon.  On this same day, we have considered and overruled appellant=s motions; therefore, these points of error are moot and need not be addressed. TEX.R.APP.P. 47.1.

    On April 29, 2004, appellant filed a supplemental brief in which she brings three additional points of error.  Appellant first argues that a police report indicated that 6 rings and a necklace were stolen from Keeney.  Appellant contends that the value of the necklace was included in determining the penalty range for the offense.  Appellant was indicted for committing the offense of theft of property valued at more than $1,500 but less than $20,000.  The indictment alleges the theft of Ajewelry.@ The evidence at trial established that appellant took 6 rings from appellant with a value of $6,000. 

    Appellant next argues that the investigation of the offense began before Aany sworn statement/charging instrument was in place.@  The record shows that appellant was questioned about the offense on May 29, 2002. After an investigation, appellant was indicted on September 19, 2002.  Appellant has not presented any error for appellate review. 

    Finally, appellant complains again that her motion for a copy of the presentence investigation report has not been ruled on by this court.  On this day, we have considered and overruled appellant=s motion.  All of appellant=s points of error have been considered and all are overruled.  Following the procedures outlined in Anders, we have independently reviewed the record.  We agree with appellant=s court-appointed counsel that the appeal is without merit.

    The judgment of the trial court is affirmed.

     

    PER CURIAM

     

    May 20, 2004

    Do not publish.  See TEX.R.APP.P. 47.2(b).

    Panel consists of: Arnot, C.J., and

    Wright, J., and McCall, J.



    [1]Batson v. Kentucky, 476 U.S. 79 (1986).