Deen, Phillip Devon ( 2015 )

PD-1484-15
PD-1484-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/16/2015 11:00:57 AM
Accepted 11/17/2015 11:42:59 AM
ABEL ACOSTA
NO. _ _ _ _ _ _ __ CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
***************************************************************
THE STATE OF TEXAS,
Appellant,
v.
PHILIP DEVON DEEN,
Appellee.
***************************************************************
On Appeal From The Court of Appeals, Eleventh Judicial
District, Eastland, Texas
Cause Number 11-13-00271-CR
The 350th District Court of Taylor County, Texas
Honorable Thomas Wheeler, Presiding Judge
Trial Court Cause Number 8104-D
***************************************************************
STATE'S PETITION FOR DISCRETIONARY REVIEW
***************************************************************
James Eidson
Criminal District Attorney
Taylor County, Texas
300 Oak Street, Suite 300
Abilene, Texas 79602
325-674-1261
November 17, 2015 325-674-1306 FAX
BY: Britt Lindsey
Assistant District Attorney
400 Oak Street, Suite 120
Abilene, Texas 79602
State Bar No. 24039669
THE STATE REQUESTS ORAL ARGUMENT
***************************************************************
STATE OF TEXAS, APPELLANT
V.
PHILIP DEVON DEEN, APPELLEE
*************************************************************
IDENTITY OF PARTIES AND COUNSEL
Appellant: State of Texas Appellee: Philip Devon Deen
Trial Attorney for State: Trial Attorney for Appellee:
James Eidson Bill Fisher
Criminal District Attorney Attorney at Law
Taylor County Courthouse 1605 South Third Street
300 Oak Street, Ste. 300 Abilene, Texas 79602
Abilene, Texas 79602
Appeal Attorney for State: Appeal Attorney for Appellee:
Britt Lindsey Richard E. Wetzel
Assistant District Attorney Attorney at Law
400 Oak St., Suite 120 1411 West Ave., Ste.100
Abilene, Texas 79602 Austin, Texas 78701
Presiding Judge:
Honorable Thomas Wheeler
3 5 0 'h District Court
300 Oak St.
Abilene, Texas 79602
TABLE OF CONTENTS
Identity of Parties and Counsel.. ......................................................... i
Table of Contents ................................................................................ ii
Index of Authorities ........................................................................... iii
Statement Regarding Oral Argument ............................................... 1
Statement of the Case ........................................................................ 2
Grounds for Review ............................................................................ 3
1. Appellee should be estopped from claiming the conviction
used to enhance his punishment is void when he pleaded
true to the enhancement paragraph at trial. ...................... 3
2. If Appellee is not estopped from arguing on appeal that his
prior conviction is void by his plea of true, his case should be
remanded to the trial court for a factual determination on
that issue ..................................................................... 4
Argument and Authorities ............................................................ 4-15
Conclusion ........................................................................... 15
Prayer ............................................................................................. 16
Certificate of Compliance ................................................................. 18
Certificate of Service ......................................................................... 18
Appendix ........................................................................................... 19
11
INDEX OF AUTHORITIES
CASES
Ex Parte Williams, 63 S.W.3d 656, 659 (Tex. Crim. App 2001) ...... 2
Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001) ..................... 15
Rhodes v. State, 240 S.W.3d. 882 (Tex.Crim. App. 2007) ...... passim
Wilson v. State, 677 S.W.2d 518 (Tex. Crim. App. 1984) ................ 8
STATUTES
TEX. CODE CRIM. PROC. art. 42.12, § 3g(a)(l)(F) (West 2014) ......... 4
TEX. PENAL CODE. ANN. § 12.35(c)(2)(A) (West 2014) ....................... 4
111
IN THE TEXAS COURT OF CRIMINAL APPEALS
*********************************************************
THE STATE OF TEXAS,
APPELLANT,
v.
PHILLIP DEVON DEEN,
APPELLEE.
*********************************************************
On Appeal From
The Eastland Court of Appeals
Eleventh Judicial District, Eastland, Texas
Cause Number 11-13-00271-CR
The 350th District Court of Taylor County, Texas
Honorable Thomas Wheeler, Presiding Judge
Trial Court Cause Number 8104-D
*********************************************************
STATE'S PETITION FOR DISCRTIONARY REVIEW
*********************************************************
TO THE HONORABLE COURT OF APPEALS:
Now comes The State of Texas, by and through the
undersigned Assistant District Attorney and submits this
Petition for Discretionary Review pursuant to TEX. R. APP.
PROC. 68. The State further requests oral argument.
STATEMENT REGARDING ORAL ARGUMENT
I
This case presents a novel question in an area which
previous opinions of this Court has characterized as having "a
dearth of case law." Rhodes v. State, 240 S.W.3d. 882, 890-91
(Tex.Crim. App. 2007) (quoting Ex Parte Williams, 63
S.W.3d 656, 659 (Tex. Crim. App 2001)(Keller, P.J.,
concurring)). Because of the unusual issues presented in this
case and its possible implications in sentence enhancement
across the State, the State believes oral argument would
benefit the Court and respectfully requests the same.
STATEMENT OF THE CASE
Appellee was convicted of possession of cocaine in an
amount less than one gram, a state jail felony. At punishment,
Appellee pleaded true to a prior conviction in an enhancement
paragraph raising the range of punishment to that of a third
degree felony. On appeal, Appellee argued that his prior
conviction was void due to a sentence below the statutory
minimum. The Eastland Court of Appeals agreed and
remanded to the trial court for a new hearing on punishment.
STATEMENT OF PROCEDURAL HISTORY
2
Appellee was found guilty by a jury on April 16, 2013,
of possession of cocaine in and amount less than one gram,
and opted to have punishment assessed by the judge of the
trial court. (RR3: 140) (CRl: 41, 55-56) A prior conviction of
aggravated robbery was alleged in the indictment,
enhancing the range of punishment from a state jail felony
range to a third degree felony range. (CRl: 6, 62) Appellee
entered a plea of true to the prior conviction and the pen
packet was entered into evidence. (RR4: 4, 7-8; RR5: SX
l(punishment)). The trial court sentenced Appellee to four
years TDCJ-ID on August 22, 2013, and Appellee appealed
to the Eastland Court of Appeals on August 22, 2014. (RR4:
40) (CRl: 58-59). On October 15, 2015, the Eastland Court of
Appeals issued its opinion reversing the sentence of the trial
court and remanding Appellee's case for a new hearing on
punishment. See Opinion of the Court, Appendix. No Motion
for Rehearing was filed.
GROUNDS FOR REVIEW
1. Appellee should be estopped from claiming the
conviction used to enhance his punishment is
3
void when he pleaded true to the enhancement
paragraph at trial.
2. If Appellee is not estopped by his plea of true
from arguing on appeal that his prior conviction
is void, his case should be remanded to the trial
court for a factual determination on that issue.
ARGUMENT AND AUTHORITIES
Phillip Devon Deen, Appellee, was indicted for
possession of cocaine in an amount of less than one gram, a
state jail felony, in the 350th District Court. HEALTH & SAFETY
§§ 481.102(3)(D), 481.115(b) (West 2014); TEX. PENAL CODE.
ANN. § 12.35(a), (b) (West 2014). The State relied on Appellee's
prior conviction for first degree felony aggravated robbery, an
offense listed in Section 3g(a)(l) of the Texas Code of Criminal
Procedure, to seek an enhanced sentence under Section
12.35(c)(2)(A) of the Texas Penal Code. TEX. PENAL CODE.
ANN. § 12.35(c)(2)(A) (West 2014); TEX. CODE CRIM. PROC. art.
42.12, § 3g(a)(l)(F). Appellee was originally placed on
deferred adjudication for the aggravated robbery, but the trial
court subsequently entered a judgment adjudicating his guilt
on August 27, 2009 and sentenced Appellee to four years in
4
prison, which is below the statutory m1n1mum. A sentence
below the statutory minimum is void unless it is the result of
a plea bargain on the part of the defendant.
At the punishment hearing for the possession of cocaine,
Appellee pleaded true to the prior conviction of aggravated
robbery. (RR4: 4) Based on Appellee's plea of true, no evidence
regarding the 2009 aggravated robbery was offered by the
State other than a pen packet containing the judgment of
conviction. (RR4: 8) On appeal Appellee argued that his prior
conviction was void because no evidence was offered into the
record showing that the sentence of four years was the result
of a plea agreement. No evidence was presented because the
State relied on the defendant's plea of true to the aggravated
robbery conviction, and the court made no explicit finding that
the prior conviction was void or not void because Appellee did
not raise the issue.
1. Appellee should be estopped from claiming the
conviction used to enhance his punishment is void when
he pleaded true to the enhancement paragraph at trial
5
At the punishment phase of his trial, Appellee pleaded
true to the enhancement paragraph of his indictment
alleging the prior conviction for aggravated robbery. On
appeal, Appellee challenges that same conviction as void
because of a sentence below the statutory range of
punishment, claiming that there is no evidence that the
lenient sentence was the result of a plea bargain. However,
no evidence of a plea bargain in the prior conviction was
entered because the State relied on Appellee's plea of true.
Appellee should be estopped from arguing counter to his own
plea of true on Appeal, and the Eastland Court of Appeals
erred in declaring Appellee's prior conviction void and
remanding his case to the trial court for a new hearing on
punishment.
In the opinion issued on October 15, 2015, the Eastland
Court found that Appellee's prior conviction for aggravated
robbery was void due to his four year sentence being below
the statutory minimum for a first degree felony, and that it
accordingly could not be used to enhance his current state
6
jail felony possess10n of cocaine. The Appellee should be
estopped from arguing that his prior conviction is void due to
his plea of true to the prior conviction and the State's
reliance on that plea of true.
In general, a sentence for less than the statutory
minimum or more than the statutory maximum allowed by
law renders a judgment of conviction a nullity. See, e.g.
Wilson v. State, 677 S.W.2d 518 (Tex. Crim. App. 1984)
(prior first degree felony conviction with four year sentence
could not be used for enhancement in subsequent felony).
However, an exception exists when a defendant enters into a
plea bargain with the State for a sentence below the
mandatory minimum. When the defendant himself contracts
with the State for a sentence below the minimum, he is then
estopped from declaring that same sentence void at a later
date. This "estoppel by judgment" exception was articulated
by this Court in the case of Rhodes v. State, 240 S.W.3d. 882
(Tex. Crim. App. 2007).
7
In Rhodes, the defendant was serving sentences of
three years and forty-five years for burglary and aggravated
sexual assault, respectively. Rhodes, 240 S.W.3d at 884.
While being bench warranted to Smith County to answer for
a theft charge, defendant escaped; after he was apprehended
he was sentenced to two years in state jail for the theft and
ten years for the escape, to run concurrently with one
another. Id. Appellee later committed more felony offenses
and was charged with burglary of a habitation, escape and
theft. Id. At trial, the defendant filed a motion to quash an
enhancement paragraph regarding his prior Smith County
escape conviction on the grounds that it was void because it
was run concurrently with his other offenses rather than
consecutively as required by Tex. Crim. Pro. art. 42.08(b). Id.
In other words, the defendant claimed he "received a
judgment that was illegally lenient by having his sentence
run concurrently instead of consecutively." Id. On appeal,
the court of appeals agreed and found that the trial court's
failure to order that the escape sentence run consecutively
8
with the prior aggravated sexual assault sentence rendered
the escape judgment void and thus unusable for
enhancement purposes. Id. at 885. The State filed a Petition
for Discretionary Review.
This Court granted the State's Petition for
Discretionary Review and reversed the holding of the court
of appeals. The Court predicated its holding on two grounds:
(1) if the defendant did not enter into a plea agreement on
the concurrent sentencing issue, the judgment was not
subject to collateral attack as void because the judgment
could be corrected by an order nunc pro tune reforming the
sentence, and (2) if the defendant did enter into a plea
agreement on the concurrent sentencing issue, he was now
estopped from challenging the judgment. Id. at 887. After an
examination of case law from other jurisdictions, the Court
reasoned that:
A defendant who has enjoyed the benefits of an
agreed judgment prescribing a too-lenient
punishment should not be permitted to
collaterally attack that judgment on a later date
on the basis of the illegal leniency. Here,
appellant received a judgment that was illegally
9
lenient by having his sentence run concurrently
instead of consecutively. Had he complained
about the illegal leniency at the time of trial, or
even on direct appeal, the State could likely have
obtained a legal judgment that would now be
available for enhancement purposes. But instead,
appellant quietly enjoyed the benefits of the
illegally lenient judgment, challenging it now
only because, due to his own subsequent criminal
conduct, the judgment can be used to enhance his
punishment for a new offense. If he agreed to the
concurrent sentencing provision, then through his
own conduct he helped procure and benefit from
the illegality and he should not now be allowed to
complain.
Rhodes at 892. In the instant case, the Eastland Court
of Appeals distinguished Rhodes by noting the requirement
of a plea agreement before the estoppel requirement could be
applied. The Court further noted that counsel for the State
conceded in her brief that "there is insufficient
documentation to show whether the prior conviction was a
result of a plea-bargain agreement." However, the State
conceded only that that the record was silent on that point,
not that no such documentation existed or that no plea
bargain could have been proved at trial. The reason that the
record is silent on this point is because Appellee pleaded true
10
to the prior conviction of aggravated robbery, thus obviating
any further proof of its validity.
In Rhodes, the defendant filed a motion to quash the
enhancement paragraph at the time of trial alleging that it
was void due to a too lenient sentence. Rhodes at 884. Here,
Appellee did not file a motion to quash, or even stand silent
to the enhancement allegation. Rather, Appellee entered a
plea of true to the enhancement paragraph, which the State
relied upon to its detriment. Had Appellee not pleaded true
to the enhancement allegation, the State could have
addressed the issue of whether or not the too-lenient
sentence resulted from a plea agreement, with the guidance
of the Rhodes case. This issue could have been addressed a
number of ways: notations from the docket sheet could have
shown that Appellee agreed to a four year sentence per a
plea agreement, or the original prosecutor in the case could
testify as to any agreement between the parties. Because the
prior aggravated robbery sentencing was also in the 35Qth
District Court and before the same presiding judge, the
11
judge could have stated his recollection from the bench or
stated what his usual practice is regarding sentencing
defendants to prison terms below the statutory minimum in
the absence of a plea agreement. Appellee's silence at trial is
exactly the same conduct that Rhodes forbids, repeated
twice: Appellee, having pleaded true to the enhancement
paragraph, now complains that his plea of true was relied
upon. Appellee should be estopped from collaterally
attacking his own plea of true to his enhancement
paragraph.
2. If Appellee is not estopped by his plea of true from
arguing on appeal that his prior conviction is void, his
case should be remanded to the trial court for a factual
determination on that issue
Appellee argues that his prior conviction for
aggravated robbery is void because his sentence of four years
is below the statutory minimum for a first degree felony.
However, case law from this Court establishes that a
defendant is estopped from claiming that a sentence below
the statutory minimum is void when the defendant received
12
that sentence due to a plea bargain entered into with the
State. No evidence was adduced or entered on that point in
the trial court because the State relied on Appellee's own
plea of true to the prior conviction. If Appellee is now
allowed to contravene that plea of true, the issue should be
remanded to the trial court for a factual determination as to
whether Appellee's four year sentence for aggravated
robbery was the result of a plea bargain. The Court of
Appeals erred when it declared Appellee's prior conviction
void when no evidence was entered on that point in the trial
court due to Appellee's own plea of true.
If Appellee is now allowed to raise the question of
whether his prior conviction for aggravated robbery is void
due to an illegally lenient sentence, that question should be
remanded to the trial court for a factual determination. The
sentence of four years in the prior aggravated robbery is not
void on its face; as per Rhodes, it is dependent on whether it
was due to a plea agreement on the part of Appellee. The
record in the trial court is silent on that point, but as stated
13
above it is silent due to Appellee's own doing in pleading
true to the enhancement allegation.
The Eastland Court of Appeals noted that the State
conceded in its brief "that there is insufficient
documentation to show whether the prior conviction is the
result of a plea agreement," and went on to state that in
light of Rhodes's requirement of a plea agreement before
applying the doctrine of estoppel by judgment that "the court
declines to extend the estoppel doctrine in the absence of a
plea agreement." Court's opinion at 13. Respectfully, this
assumes that no plea agreement exists when that has not
been demonstrated due to Appellee's own plea of true. Had
Appellee done as the defendant in Rhodes did in filing a
Motion to Quash the enhancement paragraph (or at a bare
minimum not pleaded true to it), the State could have
responded by presenting evidence of an existing plea
agreement in the prior conviction. By pleading true to the
enhancement paragraph and subsequently asserting it to be
14
void when convenient to do so, Appellee both creates his own
harm and reaps the benefit of it.
In its opinion the Court of Appeals noted that "a void
judgment is a nullity and may be attacked at any time,"
quoting Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App.
2001). This does not entitle Appellee to declare his own
sentence void when the State has been afforded no
opportunity to respond with evidence to the contrary. As
stated above, the State's position is that Appellee is estopped
by his plea of true from now asserting that his prior
conviction is void, but should Appellee be allowed to do so
the issue should be remanded to the trial court for an
evidentiary hearing and a determination on the record.
CONCLUSION
If Appellee is allowed to collaterally attack his prior
sentence as void after pleading true to his enhancement
paragraph, criminal defendants who reoffend after plea
bargaining for sentences below the minimum will have a
means of circumventing the use of prior convictions in
15
contravention of both the Legislature's enhanced sentencing
scheme and the case law of this Court regarding estoppel by
judgment. The Eastland Court of Appeals erred in its
opinion and the negative implications of that error requires
reversal.
PRAYER FOR RELIEF
The State respectfully requests that this Court reverse
the ruling of the Eastland Court of Appeals on the grounds that
Appellee is estopped from asserting that his prior conviction is
void by his plea of true to that conviction in the trial court.
Alternatively, should Appellee now be allowed to make that
assertion, the State requests that the issue be remanded to the
trial court for a factual determination as to whether a plea
agreement existed in the prior conviction, thus estopping
Appellee from collaterally attacking that conviction.
Respectfully submitted,
James Eidson
Criminal District Attorney
Taylor County, Texas
300 Oak Street
16
Abilene, Texas 79602
325-674-1261
325-674-1306 FAX
BY: /s/ Britt Lindsey
BRITT LINDSEY
Assistant District Attorney
Appellate Section
400 Oak Street, Suite 120
Abilene, Texas 79602
325-674-1376
325-674-1306 FAX
State Bar No. 24039669
Attorney for the State
17
CERTIFICATE OF SERVICE
This is to certify that on November 16, 2015 a copy of
the foregoing instrument has been served via mail, email or
e-filing to the following:
Richard E. Wetzel
Attorney at Law
1411 West Ave., Ste.100
Austin, Texas 78701
Email: wetzel law@1411west.com
Lisa C. McMinn
State Prosecuting Attorney
209 W. 14th Street
Austin, Texas 78701
Email: infor1nation@SPA.texas.gov
Isl Britt Lindsey
BRITT LINDSEY
Assistant District Attorney
Appellate Section
400 Oak Street, Suite 120
Abilene, Texas 79602
325-674-1376
325-674-1306 FAX
State Bar No. 24039669
Attorney for the State
18
CERTIFICATE OF COMPLIANCE
This is to certify that the sections covered by Texas
Rule of Appellate Procedure 9.4(i)(l) contain 2258 words in
14 point type.
s/ Britt Lindsey
BRITT LINDSEY
19
APPENDIX: OPINION OF THE llTH COURT OF APPEALS
20
Opinion filed October 15, 2015
In The
~lebentb qcourt of ~ppeal~
No.11-13-00271-CR
PHILLIP DEVON DEEN, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 9902-D
MEMORANDUM OPINION
Phillip Devon Deen appeals his jury conviction for the offense of possession
of cocaine in an amount of less than one gram, a state jail felony. See TEX.
HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.l 15(b) (West 2010). The
State alleged a prior conviction for aggravated robbery as an enhancement. See TEX.
PENAL CODE ANN.§ 12.35(c)(2)(A) (West Supp. 2014). Appellant pleaded "true"
to the prior aggravated robbery conviction, and the trial court assessed his
punishment at confinement for a term of four years in the Texas Department of
Criminal Justice, Institutional Division. Appellant raises four issues on appeal,
challenging both his conviction and his punishment. We modify the judgment of
conviction to correct an error concerning the level of the offense for which he was
convicted. As modified, the judgment of conviction is affirmed. However, we
reverse the judgment with respect to Appellant's punishment and remand for a new
trial on punishment.
Background Facts
Chris Collins, a police officer with the Abilene Police Department, received
an alert to look for a white Infinity with Louisiana license plates because of a
suspicion that the driver was selling cocaine. Officer Collins located the vehicle,
observed a traffic violation, and initiated a traffic stop. Appellant was the driver of
the vehicle. Officer Collins spoke with Appellant, and based on that conversation
and the information Officer Collins had received about Appellant, Officer Collins
asked Appellant to exit the vehicle-whereupon Officer Collins handcuffed
Appellant.
Officer Collins requested assistance from a K-9 officer, and Ismael Jaimes, a
K-9 officer with the Abilene Police Department, arrived with his dog, Chavo, and
conducted an open-air sniff around Appellant's vehicle with Chavo. Based upon
Chavo giving a positive alert, Officer Jaimes and Chavo searched the inside of
Appellant's vehicle. Officer Jaimes found a pill bottle inside the center
console/armrest. The pill bottle contained four small rocks that the DPS chemist
confirmed consisted of less than one gram of cocaine. Officer Collins questioned
Appellant about what the officers had found in Appellant's vehicle without first
telling him or showing him what they had found, and Appellant said that it was the
"stuff I smoke," "crack." Appellant told Officer Collins that "four rocks" were
located in the armrest. Officer Collins's dash-cam equipment recorded his
conversation with Appellant.
2
Issues on Appeal
In his first issue, Appellant alleges ineffective assistance of counsel.
Appellant's first issue is comprised of six sub-issues. The first four sub-issues deal
with counsel's performance during the guilt/innocence phase, and the last two sub-
issues relate to the punishment phase. Appellant's second issue deals with the trial
court's admission of evidence during the guilt/innocence phase. In his third issue,
Appellant challenges his sentence based upon the contention that his prior conviction
for aggravated robbery was void. In his fourth issue, Appellant asks for the judgment
to reflect that the jury convicted him of a state jail felony rather than a third-degree
felony.
Ruling on Nonresponsive Objection
We begin our analysis by addressing Appellant's second issue because it
concerns the guilt/innocence phase and is related to one of the sub-issues contained
within his first issue alleging ineffective assistance of counsel. Appellant contends
that the trial court erred when it overruled Appellant's "nonresponsive" objection to
Officer Collins's testimony about Appellant being recently released from prison.
The following dialogue occurred between defense counsel and Officer Collins
during cross-examination:
Q. Okay. You talked to him for a little while and then he gets
out of the car and you handcuff him?
A. That's correct.
Q. Is that normal procedure?
A. Based on the conversation we had and while I was standing at
the vehicle, I placed him in handcuffs for my safety.
Q. Based on conversation you had. You've said that several
times, but you're not telling us anything about what the conversation is
that led you to believe that you had a reason to arrest him.
3
A. He told me his driver's license was suspended, that he wasn't
supposed to be driving, and that he was just recently released from
pnson.
Q. Did he tell you -- did he tell -- let me back up.
[DEFENSE COUNSEL]: Your Honor, I'm going to have to
object to the last thing he said about being -- about prison. I don't think
that my question led to that. I'm asking him what he's based this on,
and surely he didn't base it on that.
THE COURT: [Defense Counsel], I took the question to be what
did he tell you, even though that wasn't the words -- you haven't told
us what he said -- so your objection for nonresponsive is overruled. I
believe the door was opened for that response.
[DEFENSE COUNSEL]: Okay.
We review the trial court's decision to admit or exclude evidence under an
abuse of discretion standard. See Shuffieldv. State, 189 S.W.3d 782, 793 (Tex. Crim.
App. 2006). A trial court abuses its discretion when it acts outside the zone of
reasonable disagreement. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App.
2003). We conclude that the trial court did not abuse its discretion by overruling
Appellant's "nonresponsive" objection because the officer's answer appeared to be
responsive to trial counsel's question about the conversation thatthe officer had with
Appellant that led to Appellant's arrest.
Moreover, a '"nonresponsive' objection alone, however, merely informs the
trial court why the objection was not made prior to the answer being given."
Jackson v. State, 889 S.W.2d 615, 617 (Tex. App.-Houston [14th Dist.] 1994, pet.
refd) (quoting Smith v. State, 763 S.W.2d 836, 841 (Tex. App.-Dallas 1988, pet.
refd)). Even after the "nonresponsive" portion of the objection is made, there
remains the question of the testimony's admissibility. Id. In this context, in order
4
to properly exclude evidence or obtain an instruction to disregard, a party must
address in its objection both the nonresponsiveness and the inadmissibility of the
answer. Id. Furthermore, a blanket "nonresponsive" objection alone is an
insufficient objection to preserve error where the response is a hybrid answer-that
is, where a portion of the answer is objectionable and a portion of the answer is not
objectionable. Id. Accordingly, trial counsel's objection solely on the basis that the
officer's answer was not responsive did not present a valid basis for the trial court
to exclude the officer's answer. We overrule Appellant's second issue.
Ineffective Assistance of Counsel
In his first issue, Appellant asserts ineffective assistance of counsel in six sub-
issues. He contends that his trial counsel's performance was deficient because he
(1) failed to object to the admissibility of Officer Collins's dash-cam video,
(2) elicited testimony that police officers suspected Appellant of selling cocaine,
(3) opened the door to the admissibility of Officer Collins' s testimony that Appellant
had recently been released from prison, (4) failed to request a jury instruction on
extraneous offenses, (5) failed to object to an invalid conviction used to enhance
punishment, and (6) failed to object to the prosecutor's questions at punishment that
violated the attorney-client privilege. To determine whether Appellant's trial
counsel rendered ineffective assistance, we must first determine whether Appellant
has shown that his counsel's representation fell below an objective standard of
reasonableness and, if so, then determine whether there is a reasonable probability
that the result of the proceeding would have been different but for his counsel's
errors. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726
S.W.2d 53, 55-57 (Tex. Crim. App. 1986).
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
5
considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000). An allegation of ineffective assistance of
counsel must be finnly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814
(Tex. Crim. App. 1999). With respect to allegations of ineffective assistance of
counsel, the record on direct appeal is generally undeveloped and rarely sufficient
to overcome the presumption that trial counsel rendered effective assistance. Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813-14.
The Court of Criminal Appeals has said that "trial counsel should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If
trial counsel did not have an opportunity to explain his actions, we will not find
deficient performance unless the challenged conduct was "so outrageous that no
competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001). We note at the outset of our analysis that Appellant did not
file a motion for new trial. Accordingly, the appellate record does not contain an
explanation from trial counsel concerning his actions.
Appellant's first sub-issue concerns trial counsel's failure to object to the
admissibility of Officer Collins's dash-cam video, specifically the audio portion of
the recording. In order to prevail on this contention, Appellant must establish that
the evidence was inadmissible because the failure to object to admissible evidence
does not constitute ineffective assistance. See Ex parte Jimenez, 364 S.W.3d 866,
887 (Tex. Crim. App. 2012).
Appellant contends that the dash-cam video was inadmissible because the
State could not establish the predicate for its admissibility. Article 38.22, section 3
of the Texas Code of Criminal Procedure requires that oral statements of an accused
be electronically recorded by a device that can make an accurate recording. TEX.
6
CODE CRIM. PROC. ANN. art. 38.22 § 3(a) (West Supp. 2014). Appellant contends
that the recording device was incapable of making an accurate recording because
"the voices and the words within the recording were garbled and at points
incomprehensible."
Officer Collins testified that his mobile video recording equipment was
capable of making an accurate recording of his conversation with Appellant and that
he had reviewed the video for accuracy. He explained, however, that the microphone
attached to his chest was not working. Accordingly, there was no audio recorded
for a large portion of Officer Collins's encounter with Appellant. The only
functioning microphone was the one located in the backseat of Officer Collins's
patrol car. Appellant's trial counsel did not object to the prosecutor's offer of a
portion of the recording into evidence. The prosecutor then published approximately
twenty-three minutes of the recording to the jury. The first several minutes of the
recording did not contain any audio. Afterward, Officer Collins read Appellant his
Miranda 1 rights and began questioning him. In response to Officer Collins's
question about what would be found in Appellant's car, Appellant stated that the
officers would find four rocks of "crack" in his car. After the recording was played
for the jury, the prosecutor questioned Officer Collins about the recording as
follows:
Q. Officer Collins, it's difficult to understand, but initially after
being read his rights, there was something about smoke. Do you recall
what that question was?
A. Yes, I asked him what we found in the vehicle, and he said,
The stuff I smoke. And I asked him what he smokes, and he said,
Crack.
Q. And was he able to describe for you where it was located?
1
Miranda v. Arizona, 384 U.S. 436 (1966).
7
A. He said the crack was in the armrest, which is the same as the
center console in that vehicle.
Q. Is that where it was found?
A. Yes.
Q. And was he able to describe for you how many crack rocks?
A. We asked him how much was in the car, and he said there was
$40 worth. We asked him how much was -- you know, how many rocks
were $40 worth, and he said there's four rocks.
As noted previously, Officer Collins testified that his video equipment was
capable of making an accurate recording. Accordingly, Appellant's trial counsel
may have concluded that this testimony was sufficient to establish the requisite
predicate for the admissibility of the recording. To show ineffective assistance of
counsel for the failure to object during trial, the appellant must show that the trial
judge would have committed error in overruling the objection. Ex parte White, 160
S.W.3d 46, 53 (Tex. Crim. App. 2004). The record does not establish that the trial
court would have erred in overruling the predicate objection that Appellant contends
should have been made. Accordingly, Appellant's trial counsel's failure to object to
the recording's admissibility was not deficient.
Appellant asserts in his second sub-issue that trial counsel was ineffective
when he elicited testimony from Officer Collins that officers suspected Appellant of
being a drug dealer. Specifically, trial counsel asked Officer Collins why he was on
the lookout for Appellant's vehicle, and Officer Collins responded that the driver of
the vehicle was suspected of selling cocaine.
Evidence of other crimes, wrongs, or acts is inadmissible at the
guilt/innocence phase of trial to show the accused's conformity with those other acts.
TEX. R. Evrn. 404(b); Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App.
8
1992). Rule 404(b) incorporates the fundamental tenet of our criminal justice system
that an accused may be tried only for the offense for which he is charged, not for his
criminal propensities. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996).
For an extraneous offense to be admissible, it must be relevant apart from supporting
an inference of character conformity. Montgomery v. State, 810 S.W.2d 372, 387
(Tex. Crim. App. 1991).
Appellant contends that there could have been no strategic reason for trial
counsel to have questioned Officer Collins on the reason the police were interested
in Appellant and his automobile. We disagree. It appears that trial counsel was
attempting to establish that the officer's reason for stopping and arresting Appellant
was pretextual in nature. Thus, trial counsel's questioning about the conversation
that Officer Collins had with Appellant leading to Appellant's arrest may have been
based on trial strategy. The record does not affirmatively demonstrate that trial
counsel's question seeking to determine the officer's basis for stopping Appellant
fell below an objective standard of reasonableness.
Appellant's third sub-issue alleging ineffective assistance of counsel is related
to his second issue that we have already addressed. As noted above, the trial court
concluded that "the door was opened" to Officer Collins' s response that Appellant
was recently released from prison. Appellant contends that trial counsel's alleged
act of opening the door constituted ineffective assistance of counsel. We disagree.
An accused may make otherwise inadmissible evidence admissible by
"opening the door" through questions that elicit testimony about extraneous
offenses. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). While
the trial court rnled that "the door was opened" by trial counsel, the record does not
demonstrate that counsel's conduct constituted ineffective assistance of counsel. As
was the case with the second sub-issue, it appears that trial counsel was attempting
to establish that the officer's reason for stopping and arresting Appellant was
9
pretextual in nature. Thus, trial counsel's questioning about the conversation that
Officer Collins had with Appellant leading to Appellant's arrest may very well have
been based on trial strategy. Accordingly, the record does not affirmatively
demonstrate that trial counsel's questioning of Officer Collins was deficient.
Appellant's fourth sub-issue alleging ineffective assistance concerns trial
counsel's failure to request a jury instruction limiting the jury's consideration of
extraneous offenses. The Texas Court of Criminal Appeals has noted that trial
counsel might deliberately forego a limiting instruction for extraneous offenses as a
part of "trial strategy to minimize the jury's recollection of the unfavorable
evidence." Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim. App. 2007) (quoting
United States v. Johnson, 46 F.3d 1166, 1171 (D.C. Cir. 1995)). Without evidence
in the record of trial counsel's strategy, we will not speculate why he did not request
a limiting instruction.
In considering Appellant's first four sub-issues alleging ineffective assistance,
we have determined that the performance of Appellant's trial counsel during the
guilt/innocence phase did not fall below an objective standard of reasonableness.
We additionally conclude that Appellant has failed to show there is a reasonable
probability that, but for his counsel's alleged errors, the result of the proceeding
would have been different. The evidence of Appellant's guilt was overwhelming in
that he confessed on the recording to possession of the controlled substance.
Appellant's fifth and sixth sub-issues concern alleged instances of ineffective
assistance of counsel occurring during the punishment phase. If Appellant were to
prevail on either of these claims, he would be entitled to a new punishment hearing.
CRIM. PROC. art. 44.29(b); see Milburn v. State, 15 S.W.3d 267, 271-72 (Tex.
App.-Houston [14th Dist.] 2000, pet. ref'd). As set forth below, we conclude that
Appellant is entitled to a new trial on punishment with respect to his third issue.
Accordingly, we need not address his fifth and sixth sub-issues concerning alleged
10
ineffective assistance of counsel during the punishment phase. We overrule
Appellant's first issue alleging ineffective assistance of counsel.
Illegal Sentence Based on Void Prior Conviction
In his third issue, Appellant contends that his enhanced, four-year sentence of
confinement for a state jail felony is illegal. The State relied upon Appellant's prior
conviction for the first-degree felony offense of aggravated robbery to seek an
enhanced sentence under Section 12.35(c)(2)(A) of the Penal Code. PENAL
§ 12.35(c)(2)(A). Appellant contends that this prior conviction was void and
unavailable for enhancement purposes because his sentence of confinement for the
first-degree felony was below the statutory minimum. We agree.
Possession of less than one gram of cocaine is a state jail felony offense
punishable by confinement for any term of not more than two years or less than 180
days and a fine not to exceed $10,000. HEALTH & SAFETY §§ 481.102(3)(D),
481.1 lS(b ); PENAL§ 12.35(a), (b ). A state jail felony offense may be punishable as
a third-degree felony offense by enhancement with a prior felony conviction for an
offense listed in Section 3g(a)(l) of Article 42.12 of the Texas Code of Criminal
Procedure. PENAL§ 12.35(c)(2)(A); CRIM. PROC. art. 42.12, § 3g(a)(l). Aggravated
robbery is an offense listed in Article 42.12, section 3g(a)(l). CRIM. PROC.
art. 42.12, § 3g(a)(l)(F).
The indictment alleged that Appellant had previously been convicted of
aggravated robbery in 2009. Aggravated robbery is a first-degree felony with a
minimum sentence of confinement of five years. See PENAL §§ 12.32, 29.03(b)
(West 2011 ). Appellant pleaded "true" to the prior conviction at the outset of the
punishment hearing. The State offered a copy of the judgment from the 2009
conviction for aggravated robbery into evidence. The judgment indicates that
Appellant was originally placed on deferred adjudication for a term of eight years
but that the trial court subsequently entered a judgment adjudicating guilt on
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August 27, 2009. However, Appellant was only sentenced to confinement for a term
of four years.
Appellant's challenge to the enhancement allegation in this case constitutes a
collateral attack on the prior judgment of conviction. See Rhodes v. State, 240
S.W.3d 882, 887 (Tex. Crim. App. 2007). Such a collateral attack is permitted only
if the prior judgment is void, and not merely voidable. Id.; see Nix v. State, 65
S.W.3d 664, 667-68 (Tex. Crim. App. 2001) ("A void judgment is a 'nullity' and
can be attacked at any time."). The Court of Criminal Appeals addressed an
analogous situation in Wilson v. State, 677 S.W.2d 518 (Tex. Crim. App. 1984). In
Wilson, the defendant's punishment was enhanced with a prior conviction for a first-
degree felony. 677 S.W.2d at 520, 524. However, the defendant was only sentenced
to confinement for a term of four years. Id. at 524. The court stated as follows: "It
is now axiomatic that the punishment assessed must always be within the minimum
and maximum fixed by law. When the punishment assessed is less than the
minimum provided by law, this renders the judgment of conviction a nullity." Id.
The court determined that the defendant's prior judgment of conviction was void
and should not have been used against the defendant for enhancement purposes. Id.
The State contends that Appellant should be estopped from complaining that
his prior sentence was too lenient because he enjoyed the benefits of a sentence that
was below the statutory minimum. The State cites Rhodes in support of this
proposition. We conclude that Rhodes is distinguishable from the facts in this case.
The defendant in Rhodes was serving time in the penitentiary when he
escaped. Rhodes, 240 S.W.3d at 884. When recaptured, he was tried and convicted
of escape and was sentenced to imprisonment for a term often years. Id. The trial
judge did not expressly order the escape sentence to be served consecutively with
the sentences the defendant was serving when he escaped as required by the Code
of Criminal Procedure. Id.; see CRIM. PROC. art. 42.08(b). The defendant later
12
committed more felonies, and the State alleged the prior escape conviction for
enhancement purposes. Rhodes, 240 S.W.3d at 884. The defendant objected to the
use of the escape conviction for enhancement purposes, asserting that the judgment
was void because the sentence was ordered to run concurrently with the sentences
he was serving when he escaped. Id. The court concluded that the judgment for the
escape conviction was not void because it could be reformed through a judgment
nunc pro tune to correct the error alleged by the defendant. Id. at 887-89. As noted
by the court, a judgment of conviction is only void if "the infinnity cannot be cured
without resort to resentencing." Id. at 888.
The court additionally stated in Rhodes that "[a] defendant who has enjoyed
the benefits of an agreed judgment prescribing a too-lenient punishment should not
be permitted to collaterally attack that judgment on a later date on the basis of the
illegal leniency." Id. at 892. The court premised this conclusion on the principle of
estoppel. Id. at 891-92. The record before the court in Rhodes did not show whether
the concurrent serving of the sentence for the escape conviction was pursuant to a
plea agreement. Id. at 886-87. Accordingly, the court did not rely upon estoppel
grounds for its resolution in Rhodes.
The State concedes in this appeal "that there is insufficient documentation to
show whether the prior conviction was a result of a plea-bargain agreement."
Irrespective of this omission, the State contends that Appellant should still be
estopped from attacking the prior conviction because he reaped the benefit of a
sentence that was too lenient. In light of Rhodes's requirement of a plea agreement
before applying the estoppel doctrine, we decline the State's request to extend the
estoppel doctrine in the absence of a plea agreement.
Under Rhodes, the controlling question as to whether Appellant may
collaterally attack his prior judgment of conviction for aggravated robbery is
whether it was void or voidable. The Texas Court of Criminal Appeals determined
13
in Wilson that a four-year sentence for a first-degree felony rendered the judgment
of conviction void. Wilson, 677 S.W.2d at 524. Rhodes does not change this result
because the infirmity with the judgment of conviction for aggravated robbery cannot
be cured without resort to resentencing. See Scott v. State, 988 S.W.2d 947, 948
(Tex. App.-Houston [1st Dist.] 1999, no pet.) (A judgment of conviction cannot be
reformed by adding punishment.).
As noted previously, a state jail felony is only punishable by up to two years'
confinement in state jail. PENAL § 12.35(a). Appellant was sentenced to a term of
confinement for four years based upon the enhancement alleged under Section
12.35(c)(2)(A). Appellant's prior judgment of conviction for aggravated robbery
was void and could not be used to enhance the punishment to that of a third-degree
felony. Accordingly, we sustain Appellant's third issue. We reverse the trial court's
judgment as to punishment, and we remand the cause to the trial court for a new
punishment hearing. See CRIM. PROC. art. 44.29(b).
Correction ofJudgment
In his fourth issue, Appellant asserts that the trial court's judgment incorrectly
shows that he was convicted of a third-degree felony. We agree. The jury actually
convicted Appellant of a state jail felony offense. The enhancement only affected
the applicable punishment range and not the degree of the offense for which he was
convicted. See PENAL § 12.35(c) ("An individual adjudged guilty of a state jail
felony shall be punished for a third degree felony if it is shown on the trial of the
offense that .... "(emphasis added)). Accordingly, we sustain Appellant's fourth
issue. We modify the trial court's judgment to correctly show that the jury convicted
Appellant of a state jail felony offense. See TEX. R. APP. P. 43 .2(b).
This Court's Ruling
We modify the judgment of the trial court to reflect that Appellant was
convicted of a state jail felony offense. As modified, the judgment of conviction is
14
affirmed. However, we reverse the trial court's judgment as to punishment and
remand the cause for a new punishment hearing consistent with this opinion.
JOHN M. BAILEY
JUSTICE
October 15, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
15