Glover, Kenneth Wayne v. State ( 2004 )

Affirmed and Memorandum Opinion filed June 1, 2004

Affirmed and Memorandum Opinion filed June 1, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00763-CR

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KENNETH WAYNE GLOVER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 37,405

M E M O R A N D U M   O P I N I O N

Appellant Kenneth Wayne Glover was found guilty of the offense of evading detention with a motor vehicle, and the jury sentenced him to eight-and-a-half years= confinement in the Texas Department of Criminal Justice, Institutional Division.  In seven points of error, appellant claims: (1) he received ineffective assistance of counsel; (2) the trial court erred in denying his requests to represent himself; (3) the trial court erred in overruling his objections to the enhancement paragraphs; (4) the trial court erred in denying his request for an instruction on a lesser-included offense; (5) the trial court erred in denying his request for an expert; (6) the trial court abused its discretion in denying his requests for a continuance; and (7) his sentence is excessive in violation of the Eighth Amendment to the United States Constitution.  We affirm.

Background

On the early morning of December 10, 2002, Officer Michael Gamble with the Sugar Land Police Department responded to a disturbance call at an apartment complex. Dispatch informed Officer Gamble that a red Ford pick-up was involved in the disturbance.  As Officer Gamble arrived at the scene, he saw a red Ford pick-up leaving the complex.  Appellant was the driver of the pick-up and failed to use his turn signal as he exited the complex.  Officer Gamble activated his overhead lights and pulled appellant over for the driving violation.  Officer Gamble approached the truck and asked appellant for his driver=s license and proof of insurance.  Appellant gave Officer Gamble a driver=s license and an expired proof of insurance.  Officer Gamble asked appellant to remain where he was while he ran appellant=s driver=s license for outstanding warrants.  As Officer Gamble returned to his patrol car, appellant sped off in his truck.  Officer Gamble notified dispatch that appellant had fled, activated his siren, and pursued appellant.  Appellant drove his truck for about a mile and then jumped out of his truck and ran. Officer Gamble apprehended appellant after a subsequent foot chase.

Enhancement

In his first point of error, appellant complains that he should not have been charged with a second-degree felony because the evading detention statute has its own specific enhancement provisions that should have been used to the exclusion of the repeat-offender statute provisions. Further, because two of the previous felony convictions used for enhancement would only result in non-aggravated state jail felony convictions if the crimes had been committed today, appellant argues that enhancement was improper for this additional reason.

Appellant was charged under the evading arrest or detention statute, which enhances an offense to a state jail felony if a vehicle is used during the commission of the offense.^[1]  See Tex. Pen. Code Ann. ' 38.04(b)(1) (Vernon 2003).  Further, due to appellant=s prior felony convictions for credit card abuse and arson, his punishment was enhanced according to the provisions of the repeat-offender statute.  See Tex. Pen. Code Ann. ' 12.42(a)(2) (Vernon 2003) (stating that, if a defendant is convicted of a state jail felony and Ahas previously been finally convicted of two felonies, and the second previous felony conviction is for 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@).  It is well established that a prior conviction may be used to enhance punishment as long as the same conviction has not also been used to enhance the offense under a specific criminal statute.  See Phifer v. State, 787 S.W.2d 395, 396 (Tex. Crim. App. 1990) (holding that convictions used to enhance the offense under the specific criminal statute cannot be used to enhance the punishment under the general repeat-offender statute).

Furthermore, although two of the prior felony convictions used to enhance appellant=s punishment would only be state jail felonies if appellant committed those same crimes today, there is no prohibition against using those convictions as felonies for purposes of the repeat-offender statute. See Ex parte Rice, 629 S.W.2d 56, 58 (Tex. Crim. App. 1982) (noting that the legislature did not put any limitations in the repeat-offender statute requiring that the underlying offense of the felony conviction still be a felony when it is used for enhancement and finding that Athe crucial factor . . . is the fact that there has been a final felony conviction@).  We overrule appellant=s first point of error.

                                               Self-Representation

In his second point of error, appellant contends the trial court erred in denying his requests to represent himself.  Appellant claims he requested to represent himself before trial and again at the closing argument phase of the trial.  The record reflects that appellant asked during a pre-trial hearing for the trial court to discharge his trial counsel, allow him to represent himself, and appoint him stand-by counsel.  When the trial court refused to appoint stand-by counsel, appellant indicated he did not want to dismiss his appointed attorney.  Appellant made no request to represent himself during closing arguments.^[2]

The trial court did not err in denying appellant=s request for hybrid-representation.  See Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989) (affirming that an accused has no absolute right to hybrid-representation).  Moreover, there is no evidence in the record that appellant clearly and unequivocally requested to represent himself after the trial court refused to appoint stand-by counsel.  See id. (explaining that in order for the right of self-representation to attach a defendant must clearly and unequivocally assert such a request).  We overrule appellant=s second point of error.

Ineffective Assistance of Counsel

In his third point of error, appellant claims he received ineffective assistance of counsel and makes the following conclusory allegations: trial counsel (1) was not prepared to present his case; (2) failed to investigate the case; and (3) failed to present two defenses regarding mitigating circumstances and temporary insanity.  Appellant provides no additional argument about what counsel failed to prepare or investigate.  Further, although he claims trial counsel should have presented two defenses to Amitigate the circumstances,@ appellant does not specify how counsel=s alleged failures affected the outcome of the case.

To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland v. Washington, 466 U.S. 668, 688B92 (1984). Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).  Appellant has failed to meet this burden because he has failed to demonstrate that, but for his counsel=s alleged errors, the result of the proceeding would have been different.  See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (holding that appellant must affirmatively prove prejudice by showing through evidence that the errors affected the outcome of the proceeding).^[3]  We overrule appellant=s third point of error.

Jury Instruction on Lesser-Included Offense

In his fourth point of error, appellant contends the trial court erred in denying his request for an instruction on a lesser-included offense.  Appellant filed two motions for an instruction on a lesser-included offense.  On appeal, he complains of the trial court=s denial of an instruction for Amisdemeanor escape.@  Generally, an instruction on a lesser-included offense should be given if: (1) the lesser‑included offense is included within the proof necessary to establish the offense charged, and (2) there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense.  Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000).  However, there is a crucial prerequisite: the requested instruction must actually be for a lesser-included offense.  Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).  Appellant fails to show that misdemeanor escape is a lesser-included offense of evading detention.^[4]  See Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981) (defining lesser-included offense as an offense that is Aestablished by proof of the same or less than all the facts required to establish the commission of the offense charged@); see also Green v. State, 892 S.W.2d 217, 218 (Tex. App.CTexarkana 1995, pet. ref=d) (finding that refusal to comply with lawful order from a police officer is evading arrest or detention under section 38.04 of the Penal Code); Coleman v. State, 825 S.W.2d 735, 736 (Tex. App.CDallas 1992, pet. ref=d) (explaining that offense of escape only applies to suspects who flee after they have been placed under arrest).  Because appellant has failed to establish that his requested instruction on misdemeanor escape is a lesser-included offense, we find no error in the trial court=s refusal to include the requested instruction.  See Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).  We overrule appellant=s fourth point of error.

Request for Expert

In his fifth point of error, appellant argues the trial court erred in denying his request for an expert witness in order to prepare a temporary insanity defense. A review of the record reveals that appellant requested an expert to investigate the ability of an automobile to reach eighty miles per hour in the distance alleged by police and other circumstances surrounding the arrest, and that request was denied by the trial court. However, a request for an expert to prepare for the presentation of an insanity defense was never presented to the trial court.  In fact, during a pre-trial hearing, appellant discusses his attorney=s failure to prepare a temporary insanity defense, ponders whether there may be a need to present expert testimony for the defense, and later asks the trial court whether it was going to deny his motion for an expert.  The trial court responded that it had not been presented with a motion for an expert and would rule on such a request only when it was presented.  Such a motion was never presented. 

To preserve a complaint on appeal, appellant must make a motion or request to the trial court and secure a ruling from the trial court or object to the trial court=s refusal to rule on the motion or request.  See Tex. R. App. P. 33.1(a).  Because appellant has failed to preserve this complaint for review, we overrule his fifth point of error.

Motions for Continuance

In his sixth point of error, appellant contends the trial court erred in denying his motions for continuance.  Appellant told the trial court that, because he had been working on a brief for federal court, he needed more time to prepare for trial.  Appellant=s counsel, however, told the trial court that counsel was prepared and ready for trial.  Regardless, although appellant=s counsel signed the verification attached to the three motions for continuance, none of the verifications were notarized.  Appellant=s motions were not properly sworn to and, therefore, present nothing for review.  See Smith v. State, 676 S.W.2d 378, 385 (Tex. Crim. App. 1984); see also Knight v. State, No. 05-95-01832-CR, 1997 WL 277988, at *3 (Tex. App.CDallas May 28, 1997, no pet.) (not designated for publication) (finding that appellant=s motion for continuance was not properly sworn to when the verification was not notarized).  We overrule appellant=s sixth point of error.

Appellant=s Sentence

In his seventh point of error, appellant claims his sentence is excessive in violation of his rights under the Eighth Amendment to the United States Constitution. Appellant did not object in the trial court that the sentence assessed by the jury violated the Eighth Amendment=s prohibition on cruel and unusual punishment.  Therefore, appellant has waived this issue on appeal.^[5]  Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (stating that failure to make specific objection at trial waives Eighth Amendment claim of cruel and unusual punishment).  We overrule appellant=s seventh issue.

Having overruled all of appellant=s points of error, we affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed June 1, 2004.

Panel consists of Justices Yates, Frost, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant contends in his brief that he was previously convicted of evading arrest, and as such, the provisions of the evading detention statute would have enhanced his offense to a third-degree felony.  See Tex. Pen. Code Ann. ' 38.04(b)(1) (Vernon 2003) (stating that the offense of evading detention is a third-degree felony if the actor uses a vehicle while in flight and previously has been convicted under the statute).  There is no evidence in the record to support appellant=s claim.  Appellant points us to a parole case summary contained in the record that indicates appellant admitted to a previous arrest for resisting arrest. This is not, however, evidence that appellant was convicted of that offense.

^[2]  Appellant spoke to his attorney during charge discussions about getting certain information in the record.  Although there is banter in the record between appellant and his attorney, at no time during this phase of the trial did appellant ask to represent himself.

^[3]  Even if appellant had demonstrated prejudice, we apply a strong presumption that trial counsel was competent and that his actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  Moreover, appellant has the burden to rebut this presumption by presenting evidence showing why trial counsel did what he did. See id.  If the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient or speculate about the reasons behind trial counsel=s actions.  Id.  Here, there is nothing in the record to show that counsel=s conduct was the product of unsound or unreasonable strategy or that there is a fair probability that his conduct led to an unreliable or unjust result.  Appellant has not developed a record for the purposes of this claim.

^[4]  To argue that he was entitled to an instruction on a lesser-included offense, appellant relies on Smith v. State to contend that a person who flees an investigatory stop does not commit an offense for evading under section 38.04 of the Penal Code.  See 704 S.W.2d 791 (Tex. App.CAmarillo 1985), aff=d, 739 S.W.2d 848 (Tex. Crim. App. 1987).  However, the Smith case predates an amendment to the Penal Code that added fleeing from a detention to that section of the Penal Code.  See Act of May 3, 1989, 71st Leg., R.S., ch. 126, ' 1, 1989 Tex. Gen. Laws 488.  As of the effective date of the amendment, section 38.04 prohibits a person from evading an arrest or a detention.

^[5]  Even if error were preserved , there is no evidence in the record, as required by Solem v. State, 463 U.S. 277 (1983), reflecting sentences imposed on similar offenses in Texas or other jurisdictions. See Jackson v. State, 898 S.W.2d 842, 846 (Tex. App.CTexarkana 1999, no pet.).