Stephon Charles Cruise v. State ( 2012 )


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  • Opinion issued October 4, 2012
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-11-00281-CR
    ———————————
    STEPHON CHARLES CRUISE, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 339th District Court
    Harris County, Texas
    Trial Court Case No. 1259792
    MEMORANDUM OPINION
    A jury convicted appellant, Stephon Charles Cruise, of assault by choking a
    person with whom he had a dating relationship.1 The trial court assessed his
    punishment at thirty-five years’ confinement. In five issues, appellant argues that:
    1
    See TEX. PENAL CODE ANN. § 22.01(a), (b)(2) (Vernon 2011).
    (1)–(2) the trial court erred in sustaining the State’s objection to his description of
    the presumption of innocence in violation of the Fourteenth Amendment of the
    United States Constitution and the due course of law provisions of the Texas
    Constitution; (3)–(4) the trial court erred in forbidding him from advancing his
    only theory for acquittal, in violation of the Sixth Amendment of the United States
    Constitution and Article I, Section 10 of the Texas Constitution; and (5) the
    judgment of conviction reflects the incorrect degree of offense.
    We modify the judgment and affirm as modified.
    Background
    On April 6, 2010, Duvarra Hollins, the complainant, got into an argument
    with appellant, her boyfriend, about the use of her car. Appellant drove Hollins to
    her college class, and he then took the car after dropping her off. When Hollins
    arrived home that night, she argued with appellant again about the use of her car.
    Hollins testified that during the argument, appellant burned her temple with
    a lighter. The argument continued into the bedroom where appellant grabbed
    Hollins by the throat and choked her for “two to three minutes,” causing her to lose
    consciousness. When Hollins regained consciousness, appellant was standing over
    her and he began choking her again. Appellant stopped choking Hollins and left
    the apartment when her son began knocking on the bedroom door. After appellant
    2
    left, taking the keys to Hollins’ car, Hollins called the police to report the assault
    and her stolen car.
    Hollins testified that, following her call to the police, appellant returned to
    the apartment several times. He kicked her front door and yelled threats. Hollins
    placed several other 9-1-1 calls regarding appellant’s threats, her stolen car, and
    appellant’s appearances to kick her front door. Police eventually arrived and took
    a report regarding the missing vehicle, and Officer D. King, with the family
    violence unit, contacted Hollins to follow up on the reported assault. On April 9,
    2010, several days after the assault, Officer King again interviewed Hollins and
    took photographs of her injuries. Officer King testified that he observed injuries
    on Hollins’ body consistent with her report of the assault. The trial court admitted
    into evidence the photographs that Officer King had taken. Other officers testified
    regarding damage to Hollins’ front door and the recovery of her car, which had
    been totaled.
    Hollins’ son and brother both testified regarding the events of April 6.
    Hollins’ son, Steven Jackson, testified that he observed Hollins and appellant
    arguing and that he became concerned when he could no longer hear them. He
    went downstairs to check on Hollins, and he saw her with her hair “messed up.”
    Jackson also testified that he observed appellant return to the apartment to kick the
    front door and to yell at Hollins. Hollins’ brother, Deezra Watley, testified that
    3
    Hollins called him after appellant left and asked him to come over.           Watley
    testified that he was aware that appellant had gotten “rough” with Hollins and had
    taken the keys to her car, and Hollins wanted Watley to stay to “make sure nothing
    happened to her kids and herself.” He testified that Hollins did not tell him the
    details of the assault at that time, but she “seemed terrified at the moment,” and her
    kids “seemed pretty scared, too.” Watley also observed appellant kicking Hollins’
    apartment door, and he stated that everyone in the apartment was “just scared.”
    Following the State’s presentation of evidence, both sides rested. During
    appellant’s closing argument, the following exchange occurred:
    [appellant]:        The presumption of innocence alone is sufficient
    to acquit the defendant unless the jurors are
    satisfied beyond a reasonable doubt of a
    defendant’s guilt after careful and impartial
    consideration of all the evidence in the case.
    Remember in voir dire I spoke to you briefly about
    the presumption of innocence and how important it
    is, and I told you that you must presume him to be
    innocent until and unless the State proves their
    case beyond a reasonable doubt. You must
    continue to give them that presumption unless
    you’re convinced that the State has proved their
    case beyond a reasonable doubt each and every
    elements [sic]. Otherwise, the presumption of
    innocence must prevail. That must be what guides
    you to the verdict of not guilty.
    [State]:            Objection, Your Honor, misstatement of the law.
    The presumption of innocence only exists until
    there is evidence presented, and there has been
    evidence presented in this case.
    4
    [Court]:            Sustained.
    [appellant]:        What I didn’t talk to you about in your voir
    dire . . . is the matter of common sense when you
    serve on a jury . . . . I’m going to ask you to apply
    your common sense to what was presented to you
    from the witness stand and in the—the other
    evidence, the photos, for example, I’m going to
    ask you if you think—using your common sense,
    do you think Duvarra Hollins was actually injured
    so badly? Was Duvarra actually choked so
    severely, so strongly to the point where she was
    rendered unconscious?
    [State]:            Objection, Your Honor. That’s not the standard.
    Choke until he impeded her breath or blood
    circulation.
    [Court]:            All right. The jury will be guided by what they
    heard and the law that’s in the charge.
    The trial court also read the entirety of the written charge to the jury. It states, in
    pertinent part:
    All persons are presumed to be innocent and no person may be
    convicted of an offense unless each element of the offense is proved
    beyond a reasonable doubt. The fact that he has been arrested,
    confined, or indicted for, or otherwise charged with the offense gives
    rise to no inference of guilt at his trial. The law does not require a
    defendant to prove his innocence or produce any evidence at all. The
    presumption of innocence alone is sufficient to acquit the defendant,
    unless the jurors are satisfied beyond a reasonable doubt of the
    defendant’s guilt after careful and impartial consideration of all the
    evidence in the case . . . . In the event that you have a reasonable
    doubt as to the defendant’s guilt after considering all the evidence
    before you, and these instructions, you will acquit him and say by
    your verdict “Not Guilty.”
    5
    The jury found appellant guilty, and the trial court assessed punishment at
    thirty-five years’ confinement for the offense.
    The indictment contained a paragraph alleging that appellant was guilty of a
    prior assault against a family member, which would have enhanced the offense
    from a third-degree felony to a second-degree felony. See TEX. PENAL CODE ANN.
    § 22.01(b-1) (Vernon 2011). However, the State abandoned that allegation prior to
    appellant’s sentencing and presented no evidence regarding the alleged prior
    offense of assault against a family member. The trial court’s judgment reflected
    that appellant was convicted of a second-degree felony rather than a third-degree
    felony.
    Improper Jury Argument
    A. Presumption of Innocence
    In his first and second issues, appellant contends that the trial court erred in
    sustaining the State’s objection to defense counsel’s characterization of the
    presumption of innocence during closing arguments.
    All persons are presumed to be innocent and no person may be convicted of
    an offense unless each element of the offense is proved beyond a reasonable doubt.
    TEX. CODE CRIM. PROC. ANN. art. 38.03 (Vernon Supp. 2011); see also Miles v.
    State, 
    204 S.W.3d 822
    , 825 (Tex. Crim. App. 2006) (“[A]n accused in state court
    has the right to the ‘presumption of innocence,’ i.e., the right to be free from
    6
    criminal conviction unless the State can prove his guilt beyond a reasonable doubt
    by probative evidence adduced at trial.”) (citing Taylor v. Kentucky, 
    436 U.S. 478
    ,
    483 & n.12, 
    98 S. Ct. 1930
    , 1934 & n.12 (1978)). “When a jury is told of the
    presumption, it is told, in effect, to judge an accused’s guilt or innocence solely on
    the basis of the evidence adduced at trial and not on the basis of suspicions that
    may arise from the fact of his arrest, indictment, or custody.” 
    Miles, 204 S.W.3d at 825
    . The burden of proof “rests entirely upon the State” and “that burden remains
    upon the State throughout the trial until the jury reaches a verdict.” 
    Id. (quoting Miles
    v. State, 
    154 S.W.3d 679
    , 683 (Tex. App.—Houston [14th Dist.] 2004)
    (Hudson, J., concurring), aff’d, 
    204 S.W.3d 822
    (Tex. Crim. App. 2006)); see also
    McGrew v. State, 
    143 S.W.2d 946
    , 946 (Tex. Crim. App. 1940) (stating defendant
    is presumed innocent “until the jury has concluded his guilt from the facts of the
    case”).
    Error normally occurs when a trial court makes a mistake. Hawkins v. State,
    
    135 S.W.3d 72
    , 76 (Tex. Crim. App. 2004). When a trial court commits error, a
    harm analysis is appropriate.      See 
    id. The Court
    of Criminal Appeals has
    previously held that a trial court’s improper decision to sustain an objection to a
    correct statement of the presumption of innocence during closing argument is
    constitutional error that must be reviewed to determine whether the error was
    harmless beyond a reasonable doubt. 
    Miles, 204 S.W.3d at 826
    –27. Texas Rule of
    7
    Appellate Procedure 44.2(a) requires reversal in cases in which constitutional error
    is committed “unless the court determines beyond a reasonable doubt that the error
    did not contribute to the conviction or punishment.” 
    Id. at 826
    (quoting TEX. R.
    APP. P. 44.2(a)).
    If there is a reasonable likelihood that the error materially affected the jury’s
    deliberations, then the error was not harmless beyond a reasonable doubt.
    Wesbrook v. State, 
    29 S.W.3d 103
    , 119 (Tex. Crim. App. 2000); see also
    Satterwhite v. Texas, 
    486 U.S. 249
    , 256, 
    108 S. Ct. 1792
    , 1797 (1988) (“[I]f the
    prosecution can prove beyond a reasonable doubt that a constitutional error did not
    contribute to the verdict, the error is harmless and the verdict may stand.”). The
    court should calculate as much as possible the probable impact of the error on the
    jury in light of the existence of other evidence. 
    Wesbrook, 29 S.W.3d at 119
    ; Miles
    v. State, 
    918 S.W.2d 511
    , 517 (Tex. Crim. App. 1996).               The presence of
    overwhelming evidence supporting the finding in question can be a factor in the
    evaluation of harmless error. 
    Wesbrook, 29 S.W.3d at 119
    ; Moreno v. State, 
    858 S.W.2d 453
    , 466 (Tex. Crim. App. 1993). In conducting such a review, we must
    consider the “totality of the circumstances” by examining the record as a whole.
    See 
    Miles, 204 S.W.3d at 828
    .
    We presume that the jury followed the instructions in the jury charge.
    Resendiz v. State, 
    112 S.W.3d 541
    , 546 (Tex. Crim. App. 2003); Colburn v. State,
    8
    
    966 S.W.2d 511
    , 520 (Tex. Crim. App. 1998). This presumption can be rebutted,
    but there must be some evidence to show the jury acted contrary to the jury charge
    instructions. See 
    Colburn, 966 S.W.2d at 520
    .
    In Miles, the Court of Criminal Appeals addressed a similar situation.
    During Miles’ closing argument, the State objected on two occasions to Miles’
    correct statements regarding the presumption of innocence, and, on one occasion, it
    stated that the presumption of innocence applies “before the trial starts.” 
    Miles, 204 S.W.3d at 823
    –24. The trial court sustained both of the State’s objections. 
    Id. The Court
    of Criminal Appeals held that the State “was wrong in objecting, during
    closing argument at the guilt stage of appellant’s trial, to her still being ‘presumed
    innocent’ at that point, and the trial court committed constitutional error when it
    sustained the State’s objection.” 
    Id. at 826
    .
    The court then conducted a harmless error analysis and concluded that the
    error was harmless beyond a reasonable doubt. 
    Id. at 827.
    The court cited the
    following factors: “the exchange in question between the parties and the trial court
    was brief and not without ambiguity, with the trial court saying no more than
    ‘sustained’ (twice) and ‘let’s move on’”; the State “never denied that it had the
    burden to prove appellant’s guilt beyond a reasonable doubt”; the written charge
    “included an accurate and thorough explanation of the presumption of innocence,”
    and there was no evidence that the jury did not follow the written instructions; and
    9
    finally, “the State’s evidentiary case against appellant was strong and her defense
    was relatively weak.” 
    Id. at 827–28.
    Here, as in Miles, the State admits, and we agree, that the trial court
    committed a constitutional error when it sustained the State’s objection that argued
    the presumption of innocence only exists until evidence is presented. See 
    id. at 826.
    We must now determine whether the error committed requires reversal. See
    TEX. R. APP. P. 44.2(a) (providing that unless we can determine beyond reasonable
    doubt that error did not contribute to conviction or punishment of defendant,
    judgment must be reversed).
    After examining the entire record, we conclude that the error was harmless
    beyond a reasonable doubt. As in Miles, the error occurred in a single, brief
    exchange between the parties and the trial court, in which the trial court said no
    more than “sustained” in response to the State’s objection. See 
    Miles, 204 S.W.3d at 827
    (“Given the context, we doubt that the jury placed much significance on the
    exchange.”). Furthermore, just moments later, following the State’s objection to
    appellant’s description of the standard for choking, the trial court instructed the
    jury to be guided by “the law that’s in the charge.”
    Just as in Miles, the State never denied its burden to prove appellant’s guilt
    beyond a reasonable doubt, and appellant was allowed to make that argument
    during his closing statement without objection. See 
    id. The written
    jury charge,
    10
    which the trial court had previously read aloud, contained a “thorough and correct”
    statement of the presumption of innocence and instructed the jury to acquit if it had
    reasonable doubt after considering all of the evidence presented.          Although
    appellant argues that “the error here was imputed to the charge itself” because
    “defense counsel read directly from the charge [when] the State made an erroneous
    statement, which the trial court endorsed,” there is no evidence that the jurors
    failed to follow the written instructions in the jury charge, so we must presume that
    they did. See id.; 
    Colburn, 966 S.W.2d at 520
    .
    Finally, the evidence against appellant was strong. Contrary to appellant’s
    argument that the evidence was essentially a “swearing match” between appellant
    and Hollins, the State presented the testimony of multiple witnesses and
    photographs corroborating Hollins’ testimony about the assault. In addition to
    Hollins’ own testimony, her son testified that he observed appellant and Hollins
    arguing and that he saw Hollins’ hair “messed up.” Hollins’ son and brother both
    testified that they observed appellant return to Hollins’ apartment and kick the
    door. The responding officer testified that he observed damage to Hollins’ front
    door, and Officer King testified that, three days after the assault, he observed
    Hollins’ injuries, which were consistent with her reported assault.              The
    photographs taken by Officer King were admitted for the jury to consider. See
    11
    
    Miles, 204 S.W.3d at 828
    (“The State’s evidentiary case against appellant was
    strong and her defense relatively weak.”).
    Given the totality of the circumstances, we hold that, beyond a reasonable
    doubt, the trial court’s error did not materially affect the jury’s deliberations to
    appellant’s detriment and, thus, did not contribute to the verdict obtained. See 
    id. We overrule
    appellant’s first and second issues.
    B. Right to Counsel
    In his third and fourth issues, appellant contends that the trial court’s ruling
    sustaining the State’s objection on the presumption of innocence violated his right
    to effective assistance of counsel under the Sixth Amendment of the United States
    Constitution and Article I, Section 10, of the Texas Constitution.
    Permissible jury argument generally falls into one of four areas:
    (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an
    answer to the argument of opposing counsel; or (4) a plea for law enforcement.
    David v. State, 
    329 S.W.3d 798
    , 821 (Tex. Crim. App. 2010). Prohibiting counsel
    from making an argument that he was entitled to make constitutes denial of the
    defendant’s right to counsel. See 
    id. at 825;
    see also Riles v. State, 
    595 S.W.2d 858
    , 861 (Tex. Crim. App. 1980) (en banc) (holding that improper denial of jury
    argument can constitute denial of right to counsel). A defendant has the legal right
    to argue any theory supported by the evidence. Thomas v. State, 
    336 S.W.3d 703
    ,
    12
    713 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Lemos v. State, 
    130 S.W.3d 888
    , 892 (Tex. App.—El Paso 2004, no pet.) (citing Brown v. State, 
    955 S.W.2d 276
    , 279 (Tex. Crim. App. 1997)).
    Denial of the right to counsel is an error of constitutional magnitude. See
    U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see also 
    Lemos, 130 S.W.3d at 892
    –93 (“A criminal defendant’s constitutional rights to counsel and to a jury trial
    encompass a right to have his theory of the case argued vigorously to the jury.”).
    Because the error is of constitutional magnitude we must evaluate harm under Rule
    44.2(a), which requires us to reverse unless we determine beyond a reasonable
    doubt that the error did not contribute to appellant’s conviction. See TEX. R. APP.
    P. 44.2(a).
    Appellant contends that he was deprived the right of counsel when the trial
    court “[prohibited] the defense from advancing its only theory for acquittal.” We
    have already held that the trial court’s ruling sustaining the State’s objection was
    erroneous and concluded that the error was harmless beyond a reasonable doubt as
    it pertains to appellant’s presumption of innocence.
    Appellant contends that he was harmed when his defense counsel was
    forbidden from advancing his only argument. However, the record shows that
    defense counsel continued his closing argument after the objection on the
    presumption of innocence.           During this time, defense counsel raised
    13
    inconsistencies in the testimony, attacked the credibility of witnesses, and argued
    that the State failed to establish appellant’s guilt beyond a reasonable doubt. See
    
    id. Therefore, appellant
    was not denied his one and only argument.
    Furthermore, just moments after the trial court improperly sustained the
    State’s objection, the trial court instructed the jury to be guided by “the law that’s
    in the charge.” The written jury charge, which the trial court had previously read
    aloud, contained a thorough and correct statement of the presumption of innocence
    and instructed the jury to acquit if it had reasonable doubt after considering all of
    the evidence presented. Therefore, the trial court submitted the argument to the
    jury through the jury charge. In the absence of any evidence that the jurors did not
    do so, we must assume that the jurors, in the course of their deliberations, utilized
    the law in the jury charge. See 
    Colburn, 966 S.W.2d at 520
    .
    We conclude that the trial court did not deprive appellant of the right to
    counsel by prohibiting him from advancing his only theory for acquittal.
    Moreover, to the extent that the trial court erred by sustaining the State’s
    objection to appellant’s proper statement regarding the presumption of innocence,
    the record shows that the error was harmless with respect to appellant’s ability to
    make that argument. As we have already discussed, the purpose of instructing the
    jury about the presumption of innocence is to tell the jury “to judge an accused’s
    guilt or innocence solely on the basis of the evidence adduced at trial and not on
    14
    the basis of suspicions that may arise from the fact of his arrest, indictment, or
    custody” and to emphasize the fact that the accused has “the right to be free from
    criminal conviction unless the State can prove his guilt beyond a reasonable doubt
    by probative evidence adduced at trial.” See 
    Miles, 204 S.W.3d at 825
    . The State
    never denied its burden to prove appellant’s guilt beyond a reasonable doubt, and
    appellant was allowed to make that argument during his closing statement without
    objection. As we have previously held upon reviewing the entire record, the
    evidence against appellant was strong.
    Thus, the error resulted from a short exchange which ended with the trial
    court referring the jury to the accurate statement of law in the jury charge, and
    neither the trial court nor the State emphasized the error. Given the totality of the
    circumstances, including the proper and thorough jury charge and the other
    arguments appellant was permitted to advance during his closing argument, we
    conclude that the jurors probably did not place much weight on this single error.
    See 
    Wesbrook, 29 S.W.3d at 119
    (holding that harmless error analysis should not
    focus on propriety of outcome of trial, but on probable impact of error on jury in
    light of existence of other evidence).
    Therefore, we hold that any error in the trial court’s not allowing appellant
    to make his argument concerning the presumption of innocence was harmless
    beyond a reasonable doubt.
    15
    We overrule appellant’s third and fourth issues.
    Reformation of Judgment
    In his fifth issue, appellant contends that the judgment reflects the incorrect
    degree of offense. An appellate court has the power to correct and reform a trial
    court judgment to make the record speak the truth when it has the necessary data
    and information to do so. Nolan v. State, 
    39 S.W.3d 697
    , 698 (Tex. App.—
    Houston [1st Dist.] 2001, no pet.); see TEX. R. APP. P. 43.2(b) (permitting court of
    appeals to render judgment modifying trial court judgment and affirming as
    modified). The degree of felony for assault of a family member depends on
    evidence shown at trial of a prior conviction of assault against a family member.
    See TEX. PENAL CODE ANN. § 22.01(b–1).
    The State admits, and we agree, that the judgment of conviction reflects the
    wrong degree of offense. The judgment reflects that appellant was convicted of a
    second-degree felony of assault of a family member by choking. Although the
    indictment contained a paragraph alleging a previous conviction for assault against
    a family member, the State abandoned that enhancement and did not present
    evidence of it at trial. Because appellant’s prior family assault conviction was not
    admitted into evidence, appellant’s judgment should reflect the conviction of a
    third-degree felony. See 
    id. § 22.01(b)(2),
    (b–1). The State presented evidence of
    appellant’s prior felony convictions of burglary and attempted burglary of a
    16
    habitation.   Appellant was thus sentenced as a habitual offender, so the
    modification of the judgment has no effect on the punishment assessed. See 
    id. § 12.42(d)
    (Vernon Supp. 2012).
    We sustain appellant’s fifth issue.
    Conclusion
    We modify the judgment to reflect appellant’s conviction of a third-degree
    offense, and we affirm the judgment as modified.
    Evelyn V. Keyes
    Justice
    Panel consists of Justices Keyes, Massengale, and Brown.
    Do not publish. TEX. R. APP. P. 47.2(b).
    17