Walter Earl Taylor v. State , 461 S.W.3d 223 ( 2015 )

Opinion issued February 19, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00210-CR
———————————
WALTER EARL TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 10CR1215
OPINION ON REHEARING
On September 3, 2014, this Court granted rehearing in this case and
withdrew our judgment and opinion of November 29, 2012. We now issue this
opinion and accompanying judgment in their stead.
A jury convicted appellant of possession of cocaine weighing between four
and 200 grams.1 Appellant pleaded true to two enhancements that alleged prior
felony convictions, and the jury assessed punishment at 25 years’ confinement.2 In
four issues on appeal, appellant contends that (1) he received ineffective assistance
of counsel at trial; (2) the trial court submitted the wrong range of punishment to
the jury; (3) the evidence was insufficient to prove one of the alleged
enhancements; and (4) the trial court erred by refusing appellant access to the juror
information cards. We affirm.
USE OF NON-AGGRAVATED STATE JAIL FELONY PUNISHED AS
SECOND DEGREE FELONY TO ENHANCE SECOND DEGREE FELONY
Appellant pleaded true in the present case to two felony enhancement
paragraphs. One of the enhancements—cause no. 09CR0724—a conviction for
possession of cocaine, was described in the judgment as a second degree felony,
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D) (providing that cocaine
is penalty group one substance), 481.115(a),(d) (providing that possession of a
penalty group one substance in an amount between four and 200 grams is a second
degree felony) (Vernon 2010).
2
See TEX. PENAL CODE ANN. § 12.42(d) (Vernon 2011) (providing range of
punishment between 25 and 99 years for felony conviction enhanced by two prior
felony convictions).
2
and assessed a punishment at two years’ confinement. Appellant argues that cause
number 09CR0724 was a non-aggravated state jail felony conviction, which cannot
be used to enhance his present second degree felony charge. Thus, in three related
issues on appeal, appellant contends that (1) his counsel was ineffective for failing
to object to the erroneous enhancement; (2) the trial court submitted the wrong
range of punishment; and (3) the evidence was insufficient to prove that appellant
was a habitual offender.
Determining the merits of appellant’s complaint requires that we examine
the application and interaction of the enhancement statutes involved. 3 In
interpreting a statute, courts look to the literal text of the statute for its meaning
and ordinarily give effect to that plain meaning, unless application of the statute’s
plain language would lead to absurd consequences that the legislature could not
possibly have intended, or the plain language is ambiguous. Boykin v. State, 818
S.W.2d 782, 785 (Tex. Crim. App. 1991); State v. Webb, 12 S.W.3d 808, 811 (Tex.
Crim. App. 2000).
3
The statutes involved in this decision were revised and reorganized in 2011, with
an effective date of September 1, 2011. See Act of May 25, 2011, 82nd Leg.,
R.S., ch. 834, §§ 7–8, 2011 Tex. Gen. Laws 2104, 2104. Because this offense
occurred on April 21, 2011, we apply the prior versions of these statutes. Id.
3
Former Penal Code sections 12.42(d)4 & (e)5 are the statutes under which the
present second degree felony was enhanced and provide in relevant part as follows:
(d) [I]f it is shown on the trial of a felony offense other than a state jail
felony punishable under Section 12.35(a) that the defendant has
previously been finally convicted of two felony offenses, and the
second previous felony conviction is for an offense that occurred
subsequent to the first previous conviction having become final, on
conviction he shall be punished by imprisonment in the Texas
Department of Criminal justice for life, or for any term of not more
than 99 years or less than 25 years.
(e) A previous conviction for a state jail felony punished under
Section 12.35(a) may not be used for enhancement purposes under
Subsections (b), (c), or (d). (Emphasis added).
Thus, the question this Court must decide is whether cause no. 09CR0724 is a
“state jail felony punished under Section 12.35(a).” See TEX. PENAL CODE ANN. §
12.35(a) (Vernon 2011) (defining punishment range for non-aggravated state jail
felony). If it is a “state jail felony punished under Section 12.35(a),” it was
improper to use it to enhance appellant’s present felony conviction.
Cause no. 09CR0724 is a conviction for possession of less than 1 gram of
cocaine, which is generally a state jail felony. See TEX. HEALTH & SAFETY CODE
4
Act of May 11, 2009, 81st Leg., R.S., ch. 87, § 25.150, 2009 Tex. Gen. Laws 208,
373, amended by Act of May 25, 2011, 82nd Leg., R.S., ch. 834, § 4, 2001 Tex.
Gen Laws 2104, 2105 (current version at TEX. PENAL CODE ANN. § 12.42(d)
(Vernon 2011)).
5
Act of May 24, 1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734,
2734–35, repealed by Act of May 25, 2011, 82nd Leg. R.S., ch. 834, §6, 2011
Tex. Gen. Laws 2104, 2105 (current version at TEX. PENAL CODE ANN. § 12.42(d)
(Vernon 2011)).
4
ANN. §§ 481.102(3)(d), 481.115(b) (Vernon 2010). Such non-aggravated state jail
felonies are generally punished by a term of confinement in a state jail for a period
of 180 days to 2 years. See TEX. PENAL CODE ANN. § 12.35(a) (Vernon 2011). As
such, it would be improper to use a non-aggravated state jail felony to enhance a
felony conviction. See former TEX. PENAL CODE ANN. § 12.42(e) (Act of May 24,
1995, 74th Leg., R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734, 2734–35 (repealed
2011)).
However, the indictment in cause no. 09CR0724 also alleged two prior
felony enhancements, so its punishment was elevated to a second-degree felony
pursuant to former Penal Code article 12.42(a)(2), which provides:
If it is shown on the trial of a state jail felony punishable under
Section 12.35(a) that the defendant has previously been finally
convicted of two felonies, and the second previous felony conviction
is an offense that occurred subsequent to the first previous conviction
having become final, on conviction the defendant shall be punished
for a second-degree felony.
Act of May 24, 1995, 74th Leg. R.S., ch. 318, § 1, 1995 Tex. Gen. Laws 2734,
2734–35, amended by Act of May 25, 2011, 82nd Leg., R.S. ch 834, § 2, 2011
Tex. Gen. Laws 2104, 2104 (current version at TEX. PENAL CODE ANN. §
12.425(b) (Vernon 2011)).
Appellant argues that, even though cause no. 09CR0724 was ultimately
punished as a second degree felony, we should look to the crime charged—a non-
aggravated state jail felony punishable under section 12.35(a)—to determine
5
whether the conviction can be used to enhance a subsequent felony conviction.
The State responds that, because of the felony enhancements, cause no. 09CR0724
was not punished under section 12.35(a), but was punished only under former
section 12.42(a)(2).
The Texas Court of Criminal Appeals recently considered this issue in
Samaripas v. State, No. PD-135-13, ___S.W.3d___, 2014 WL 5247434 (Tex.
Crim. App. Oct. 15, 2014). In Samaripas, the defendant was charged with a third-
degree felony. Id. at *5. The State alleged two prior felony convictions, one a
non-aggravated state jail felony that had been enhanced to a second degree felony.
Id. On appeal, the defendant argued, like appellant does here, that although the
punishment for the underlying offense had been enhanced, that did not enhance the
level of the underlying offense, and therefore, it should have not been available to
enhance his current offense. Id. at 6. The court of appeals rejected Samaripas’s
argument, noting that “[p]unishing a defendant more severely after repeated
behavior that has escalated beyond the level of an unenhanced state jail felony
offense is neither absurd, nor is its application[,]” and that “[h]ad the Legislature
intended to exclude state jail felonies that received enhanced punishment under
section 12.42(a)(2) from being used for enhancement, it would have done so.”
Samaripas v. State, No. 13-11-00442-CR, (Tex. App—Corpus Christi 2013), aff’d
in part, rev’d in part on other grounds, Samaripas v. State, 446 S.W.3d 1, 13 (Tex.
6
Crim. App. Oct. 15, 2014). The Court of Criminal Appeals agreed, stating as
follows:
We agree with the court of appeals that the plain language of the
statute makes it clear that, at the time of Appellant’s offense, Section
12.42(e) focused on how the previous state-jail felony was actually
punished and precluded from use for enhancement only those state-
jail felonies that had not been punished under the range of a higher
felony. Here, [Samaripas] was not punished under Section 12.35(a).
His prior state-jail felony had been enhanced, and he was punished for
that offense under Section 12.42(a)(2). Therefore, the prior offense
was properly used for enhancement purposes, and the court of appeals
did not err in overruling this issue.
Samaripas, 2014 WL 5247434, at *6.
As Samaripas makes clear, we must look at how the underlying offense was
actually punished to determine whether it was proper to use it to enhance the
current, charged offense. Like the underlying offense in Samaripas, here the
underlying non-aggravated state jail felony had been enhanced, and appellant was
punished for that offense under section 12.42(a)(2). Because the underlying
offense was not punished under 12.35(a), the State was not precluded by section
12.42(e) from using that underlying offense for enhancement of the charged
offense.6
6
We note that the legislature repealed 12.42(e) and recodified it in 12.42(d) which
now provides that “A previous conviction for a state jail felony punishable under
Section 12.35(a) may not be used for enhancement purposes under this
subsection.” TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2013) (emphasis
added). The legislature has changed the word used in the exclusion from
“punished” to “punishable.” This is a “significant” distinction because enhanced
7
Accordingly, we overrule points of error two and three and the portion of
appellant’s ineffective assistance of counsel claim that is based on the same
argument.
INEFFECTIVE ASSISTANCE OF COUNSEL
In the remaining issues raised in appellant’s first point of error, he contends
the trial court erred in denying his motion for new trial, which was based on
allegations of ineffective assistance of counsel.
Standard of Review and Applicable Law
We review the trial court’s denial of a motion for new trial for abuse of
discretion. See State v. Herndon, 215 S.W.3d 901, 907 (Tex. Crim. App. 2007).
Therefore, “when analyzing the trial court’s failure to grant a motion for new trial
on the basis of ineffective assistance of counsel, we view the relevant legal
standards through the prism of abuse of discretion.” Ramirez v. State, 301 S.W.3d
410, 415 (Tex. App.—Austin 2009, no pet.) (citing State v. Gill, 967 S.W.2d 540,
542 (Tex. App.—Austin 1998, pet. ref’d)). A trial court abuses its discretion only
when no reasonable view of the record would support the trial court’s ruling.
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
non-aggravated state jail felonies could be used for felony enhancement under
former 12.42(e) before the amendment, but now cannot. Samaripas, 2014 WL
5247434 at *6 n.5. “Had [appellant] committed the current offense after this
amendment, it would not have been proper for his prior state-jail felony to be used
for enhancement.” Id.
8
Appellant has the duty to bring forth a record that affirmatively demonstrates
the alleged ineffectiveness of his counsel by a preponderance of the evidence. See
Scheanette v. State, 144 S.W.3d 503, 509–10 (Tex. Crim. App. 2004). In order to
prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the
two-prong test set out in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct.
2052 (1984); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.
1986) (adopting Strickland standard for claims of ineffective assistance of
counsel). Under Strickland, a defendant must show (1) that the counsel’s
performance was deficient and (2) that the defendant was prejudiced by the
deficient performance. 466 U.S. at 687. Counsel’s performance is deficient when it
falls “below an objective standard of reasonableness” based upon “prevailing
professional norms.” Strickland, at 669, 688; see also Perez v. State, 310 S.W.3d
890, 893 (Tex. Crim. App. 2010). An accused is not entitled to errorless or perfect
counsel. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
Therefore, counsel’s effectiveness is assessed from the perspective at trial,
“without the distorting effects of hindsight.” Goodspeed v. State, 187 S.W.3d 390,
392 (Tex. Crim. App. 2005). Our review of counsel’s performance must be highly
deferential. Strickland, 466 U.S. at 689. We presume that counsel makes all
significant decisions in the exercise of reasonable judgment. Id.
9
Failure to Impeach with Inconsistent Evidence
When appellant’s house was searched pursuant to a “no knock” warrant,
Officers found a safe in the living room that contained crack cocaine and a large
amount of money. At trial, Officer Vela testified that appellant had claimed
ownership of the safe. However, another officer, Officer Roark, had filed an
affidavit in a civil forfeiture case arising from the same offense in which he
averred, “Ofc. Vela asked Mr. Golliday about the safe at which time he again
advised the safe did not belong to him. Officer Vela then asked appellant about the
safe. Mr. Taylor stated to Officer Vela that the safe did not belong to him even
though it was found in his house in the living room.” Appellant contends that trial
counsel was ineffective for failing to impeach Officer Vela with the statements
from Officer Roark’s affidavit.7 Specifically, appellant argues that “[t]he only
testimony linking Mr. Taylor to the safe came from Officer Vela.”
The State responds that even if trial counsel was deficient for failing to
question Vela about Roark’s affidavit, appellant cannot show that the outcome of
the trial would have been different had she done so. We agree. The State did not
7
At the hearing on the motion for new trial, it was appellant’s position that Roark
had committed perjury by testifying at trial that appellant admitted owning the
safe, and testifying to the contrary in his affidavit in support of the forfeiture
proceeding. However, on review of the transcript from the trial, which was
apparently not yet available at the time of the motion for new trial hearing, it is
clear that Officer Vela, not Roark, testified at trial about appellant’s admission that
he owned the safe. Thus, there was never an issue of perjured testimony, but, at
most, a conflict between the two officers’ testimonies.
10
have the burden of proving that appellant owned the safe; it had only to prove that
appellant had care, custody, control, or management of the drugs. See TEX.
HEALTH & SAFETY CODE ANN. § 481.002(38) (Vernon 2010) (defining
“possession”).
Here, there was overwhelming evidence linking appellant to the drugs. The
police conducted surveillance of Taylor’s house and saw several people go in and
leave within just a few minutes. This, the officers testified, was consistent with
drug dealing. The officers then stopped one of the men that had been seen entering
appellant’s house and then leaving a short time later. The man had cocaine, and
the officers believed that he had gotten the cocaine from appellant.
The officers then got a warrant and searched appellant’s house. A man,
Golliday, was on the couch in the living room. He was under the influence and
had a cigar dipped in narcotics in his hand. Appellant was found in his bedroom.
Appellant, too, was under the influence of drugs. The officers also found drug
paraphernalia in appellant’s bedroom.
In the living room, the officers also found a small safe. Golliday said the
safe was not his and he did not have the key. However, he did tell the officers
where the key was located. Inside the safe, the officers found more than cocaine
and $285 in cash. The officers found mail with appellant’s name on it indicating
that he lived in the house. They found nothing to indicate that Golliday lived in the
11
house. This evidence affirmatively linked appellant to the drugs. See Evans v.
State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing factors that may
be considered as affirmatively linking defendant to narcotics). Whether appellant
actually owned the safe is just one of many factors to be considered in determining
appellant’s link to the drugs.
In light of the substantial amount of other evidence linking appellant to the
drugs, appellant cannot meet the prejudice prong of the Strickland test. See Dennis
v. State, 151 S.W.3d 745, 752 (Tex. App.—Amarillo 2004, pet. ref’d) (holding
overwhelming evidence of appellant’s guilt negated reasonable probability that
outcome would have been different but for counsel’s alleged deficient
performance).
Failure to Question Officers Regarding “No Knock” Warrant
Appellant also argues that trial counsel was deficient for failing to question
the officers about the necessity of a “no knock” warrant. Specifically, the affidavit
in support of the warrant alleged that “there were several handguns inside the
residence,” but no weapons were found when the house was searched.
At the motion for new trial hearing, trial counsel testified that she was
extremely cautious when questioning the officers about the warrant because she
did not want to inadvertently “open the door” to the admission of appellant’s many
prior convictions. Trial counsel also testified that it was a part of her trial strategy
12
to keep appellant’s prior convictions out of evidence, and the trial court had
warned her that if she continued in her questioning regarding the necessity of a “no
knock” warrant, those priors might come in.
To establish deficient performance under the first prong, a defendant must
show that no reasonable trial strategy could justify counsel’s conduct. See
Strickland, 466 U.S. at 689; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.
App. 2005). In light of trial counsel’s reasonably articulated trial strategy
regarding her decision not to question the officers further about the “no knock”
warrant, appellant fails to meet the first prong of the Strickland test.
We overrule appellant’s first point of error.
ACCESS TO JUROR INFORMATION CARDS
In issue four, appellant contends that the trial court abused its discretion by
failing to allow his counsel access to juror information cards. Specifically,
appellant contends that (1) two jurors were not registered to vote, so they might not
have been qualified to serve as jurors, and (2) he wanted to explore whether he
could raise a Batson challenge.
Standard of Review and Applicable Law
A trial court abuses its discretion when it acts without reference to any
guiding rules and principles, or it acts in an arbitrary or capricious manner.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (citations
13
omitted). A trial court does not abuse its discretion if its ruling is at least within the
zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex.
Crim. App. 2001); Montgomery, 810 S.W.2d at 391 (op. on reh’g).
By its terms, article 35.29 of the Texas Code of Criminal Procedure protects
juror personal information. See TEX.CODE CRIM. PROC. ANN. art. 35.29 (Vernon
Supp. 2014). When a defendant files a post-trial motion seeking discovery of
jurors’ personal information, “[h]e is not entitled to such information unless he
shows good cause.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)
(citing TEX. CODE CRIM. PROC. ANN. art. 35.29); see Cyr v. State, 308 S.W.3d 19,
29 (Tex. App.—San Antonio 2009, no pet.) (stating that article 35.29 “prohibits
personal information about jurors from being disclosed after trial unless good
cause is shown”). “What constitutes good cause must be based upon more than a
mere possibility that jury misconduct might have occurred; it must have a firm
foundation.” Id. at 30; Esparza v. State, 31 S.W.3d 338, 340 (Tex. App.—San
Antonio 2000, no pet.) (stating that “[w]hat constitutes good cause must
necessarily be based upon more than a mere possibility that jury misconduct might
have occurred”).
In Hooker v. State, the appellate court stated that article 35.29’s good-cause
showing “must be based upon sworn testimony or other sufficient supportive
evidence in the record.” 932 S.W.2d 712, 716 (Tex. App.—Beaumont 1996, no
14
pet.); see Valle, 109 S.W.3d at 509 (stating that appellant’s allegation “that he
needed [the jurors’] personal information to determine whether he should file a
motion for new trial . . . is not sufficient to establish good cause”), see also
Castellano v. State, No. 04–06–00524–CR, 2007 WL 2935399, at *3 (Tex. App.—
San Antonio Oct. 10, 2007, no pet.) (mem. op., not designated for publication)
(holding that defendant had “reason to believe” juror misconduct had occurred was
not sufficient to show good cause).
Analysis
In this case, appellant argued that he needed the juror information cards (1)
to determine whether two jurors, who were not registered voters, were qualified to
serve, and (2) to explore whether he could raise a Batson challenge. Regarding the
first issue, the trial court properly noted, “There, of course, is no requirement that a
Juror be a registered voter. So, there’s only a requirement that a Juror be qualified
and, in fact, expressly does not have to be registered[.]” See TEX. CODE CRIM.
PROC. ANN. art. 33.02 (Vernon 2006) (“Failure to register to vote shall not
disqualify any person from jury service.”). There is nothing in the record to
support appellant’s assertion that the jurors “might” have been disqualified.
Regarding the second issue, again, there is nothing in the record to support
appellant’s claim that he needed the cards “to determine if there was a basis for
Batson challenge.”
15
Appellant essentially argues that he needed the information cards “to present
a motion for new trial to develop issues that were outside the record, namely, to
determine if two people who served on the jury were qualified to serve, to review
all the challenges for cause, and to determine if there was a basis for a Batson
challenge.” However, requesting juror cards to decide whether there is a basis for
filing a motion for new trial is not a showing of good cause. Valle, 109 S.W.3d at
509.
Because appellant did not meet his burden of showing good cause to the trial
court so as to be entitled to the juror information sought, the trial court did not
abuse its discretion by denying appellant’s request.
We overrule appellant’s fourth point of error.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
16