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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTHNO. 2-04-255-CR*
CHRISTOPHER XAVIER FRANKLIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant Christopher Xavier Franklin appeals his conviction of burglary of a habitation. Counsel on appeal has filed an Anders brief asserting that there are no grounds that could be argued successfully on appeal. Appellant has filed a pro se brief raising one point on appeal. We grant counsel’s motion to withdraw, address and overrule appellant’s point, and affirm the trial court’s judgment.
II. Background Facts
On December 11, 2003, Keith Jones was at his house with several companions when a man later identified as appellant broke into his house, threatened them with a knife, stole some items of personal property, and ran away. Police went to appellant’s house where they found him lying on his couch. Police found a knife similar to the one Jones described and some of the personal property taken from Jones’s house. A jury found appellant guilty of burglary of a habitation and assessed his punishment at forty-five years’ confinement.
III. The Anders Brief
Appellant’s court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion. In the brief, counsel avers that, in his professional opinion, this appeal is frivolous. Counsel’s brief and motion meet the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief.
Once appellant's court-appointed counsel files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders, we are obligated to undertake an independent examination of the record and to essentially rebrief the case for appellant to see if there is any arguable ground that may be raised on appellant's behalf. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
IV. Independent Review
A. Pretrial
Appellant did not file a motion to quash the indictment. The indictment charges appellant with burglary of a habitation, tracks the applicable statutory language, and was sufficient to confer jurisdiction on the trial court. See Tex. Const. art. V, § 12; Tex. Penal Code Ann. § 30.02 (Vernon 2003); Duron v. State, 956 S.W.2d 547, 551 (Tex. Crim. App. 1997). During voir dire, neither the State nor appellant objected to questions asked of the venire. The trial court granted the State’s only challenge for cause over appellant’s objection. Appellant made two challenges for cause. The trial court granted one but denied the other one.
A trial court is in the best position to evaluate the demeanor of a prospective juror. See Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993). Thus, we review a trial court’s determination of a challenge for cause for abuse of discretion. Id. Here, the State challenged a prospective juror for cause, arguing that she could not consider the full range of punishment. The prospective juror had previously stated during voir dire that she did not think she could consider the full range of punishment for the offense. Although appellant attempted to rehabilitate the prospective juror, the trial court ultimately granted the State’s challenge. The trial court was in the best position to evaluate the prospective juror’s demeanor and decide whether she could, in fact, consider the full range of punishment for the offense. Therefore, we cannot say that the trial court abused its discretion by granting the State’s challenge for cause.
To obtain a reversal based on a trial court’s erroneous denial of a valid challenge for cause, an appellant must first show that he was harmed by the trial court’s action. Narvaiz v. State, 840 S.W.2d 415, 427 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 975 (1993). An appellant may do this by showing that he exhausted his peremptory challenges, that the trial court denied his request for additional peremptory challenges, and that a juror on whom he would have exercised a peremptory challenge was seated. Id. In the present case, the record does not indicate whether appellant exhausted his peremptory challenges and if so whether he requested more. Thus, our review of the record reveals that no reversible error occurred during pretrial.
B. Guilt-Innocence Phase
Keith Jones lives at 409 Kentucky in Wichita Falls, Texas. He testified that around 11:30 p.m. on December 11, 2003, he was at his house with several companions when appellant began trying to break into his house. He testified that appellant kicked down a door, came inside, and began threatening everyone with a knife. Jones then went to his neighbor’s house to call the police. Jones testified that while he was at his neighbor’s house, he saw appellant leave his house carrying some of his personal belongings.
During cross-examination, appellant’s counsel asked Jones whether appellant had ever shown him a knife during his previous visits to Jones’s house Jones replied, “Yeah. In fact, one time he showed me a gun, said he was going to blow me away.” Appellant objected, arguing the answer was nonresponsive. The trial court sustained the objection, instructed the jury to disregard, but denied appellant’s request for a mistrial. Walter Fuller, who was in Jones’s house on December 11, also testified that appellant broke into the house, threatened everyone with a knife, and stole some of Jones’s things. He testified that appellant appeared to have been drinking.
Mistrial
When objectionable testimony is introduced, either deliberately or inadvertently, an appellate court presumes the jury followed the trial court’s instructions to disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000); Drake v. State, 123 S.W.3d 596, 604 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). “This is true ‘except in extreme cases where it appears that the . . . evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on their minds.’“ Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987) (quoting Campos v. State, 589 S.W.2d 424, 428 (Tex. Crim. App. 1979)), cert. denied, 484 U.S. 905 (1987). We review a trial court’s denial of a motion for mistrial for abuse of discretion. Ladd, 3 S.W.3d at 567.
In the present case, the State did not elicit Jones’s testimony relating to appellant’s showing him a gun and telling him that he would blow him away. Rather, Jones’s testimony came in response to a question posed by defense counsel. See Drake, 123 S.W.3d at 604. The trial court immediately instructed the jury to disregard. See id. We cannot say that the testimony was so inflammatory that the jurors could not follow the trial court’s instruction. See id. Therefore, the trial court did not abuse its discretion by denying appellant’s motion for mistrial.
Wichita Falls Police Officer Robert Woodruff testified that on December 11, 2003 he was dispatched to Jones’s house regarding a burglary in progress. Appellant had already left when Officer Woodruff arrived. After Jones and his companions identified appellant as the one who committed the burglary, Officer Woodruff drove to appellant’s house. Officer Woodruff testified that appellant’s front door was open and that he could see appellant lying on his couch. Officer Woodruff told appellant that he needed to talk to him, and appellant invited him inside. On appellant’s floor, Officer Woodruff found a knife that was similar to the one described by the occupants of Jones’s house. Officer Woodruff’s partner, Officer Mason Wiese, found a bag containing some of Jones’s personal property in appellant’s bathroom. Officer Woodruff testified that appellant was intoxicated and that appellant told him he had recently smoked crack cocaine.
Officer Woodruff testified that after he arrested appellant and put him in the backseat of his police car, appellant became violent and kicked out one of the windows. Appellant objected, arguing that the testimony referred to extraneous conduct, which the State had not given notice it would offer. The State argued that the incident was contextual and an indication of appellant’s guilt. The trial court overruled appellant’s objection.
Extraneous Conduct
Extraneous conduct is admissible as same-transaction contextual evidence when it is “so intertwined with the charged offense that testimony cannot be given regarding the charged crime without showing the extraneous [conduct] as well or when the charged offense would make little or no sense without also bringing in the same-transaction evidence.” Best v. State, 118 S.W.3d 857, 864 (Tex. App.—Fort Worth 2003, no pet.). Moreover, the State is generally entitled to show the circumstances surrounding an arrest. Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990). However, the evidence must be relevant to a material issue in the case, and the probative value must outweigh the prejudicial value. Id. The erroneous admission of an extraneous offense is not constitutional error. Best, 118 S.W.3d at 864. Therefore, we must disregard the error unless it affected appellant’s substantial rights. Id.
We cannot say that appellant’s act of kicking out the window of Officer Woodruff’s patrol car was so intertwined with the charged offense to make it admissible as same-transaction contextual evidence. Nor can we say that appellant’s act was material to an issue in the case. However, even if the trial court abused its discretion by admitting Officer Woodruff’s testimony, because there was substantial evidence of appellant’s guilt, we conclude that the admission of this evidence did not have a substantial and injurious effect on the jury’s verdict and therefore did not affect appellant’s substantial rights.
Neither side objected to the jury charge. After closing arguments, the trial court sent the jury to deliberate. The jury deliberated for a while and then sent a note to the trial court asking whether the State must prove that appellant had the intent to steal before entering Jones’s house. The trial court proposed responding to the jury’s question by telling them that it was not allowed to answer their question and by referring them to the language in the jury charge. Appellant objected, arguing that the trial court should answer “yes” to the jury’s question. However, the trial court ultimately answered the jury’s question with the response it had originally proposed by telling them to refer to the language in the jury charge. The jury found appellant guilty of burglary of a habitation.
Question from the Jury
According to article 36.27 of the code of criminal procedure, after a jury has begun deliberating, it may communicate with the court in writing. Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 1981). A jury may request additional instructions on questions of law if the request is proper. See Ishmael v. State, 688 S.W.2d 252, 262 (Tex. App.—Fort Worth 1985, pet. ref’d). If the request from the jury for additional instructions is not proper, the trial court should refer the jury to the court’s charge. Id. Here, the jury charge properly set forth the elements of the offense of burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(1). Therefore, we hold that the trial court did not err when it responded to the jury’s question by referring the jury to the language in the jury charge.
Sufficiency of the Evidence
Jones and Fuller testified that they saw appellant beak into Jones’s house, threaten the occupants with a knife, and leave with some of Jones’s personal belongings. Moreover, Officer Woodruff testified that he found appellant lying on his couch with the knife on the floor beside him, and Officer Wiese testified that he found a bag containing Jones’s personal belongings in appellant’s bathroom. Applying the appropriate standards of review,2 we hold the evidence is legally and factually sufficient to convict appellant of burglary of a habitation.
C. Punishment
At the punishment phase of the trial, appellant pled true to two enhancement paragraphs, each alleging a prior felony conviction. The State offered all of the testimony and exhibits previously admitted, and appellant reurged his previous objections. The State offered pen packets from the Texas Department of Criminal Justice and a stipulation of evidence from appellant and then rested. Appellant called his father, Louis Eddy Franklin, to testify. He testified that appellant’s main problem was drugs and that appellant could be rehabilitated and be a contributing member of society. Appellant did not object to the trial court’s charge on punishment, and the jury assessed his punishment at forty-five years’ confinement. The trial court properly instructed the jury on the applicable range of punishment and on applicable parole laws, and the jury assessed punishment within the permissible statutory range. See Tex. Penal Code Ann. § 12.32 (Vernon 2003), § 12.42(d) (Vernon Supp. 2004-05).
V. The Pro Se Brief
In his sole point, appellant argues that he was denied effective assistance of counsel during the punishment phase of the trial. Appellant contends that he was intoxicated at the time of the burglary and that counsel failed to introduce expert testimony on the effects of intoxication and failed to request a mitigating instruction on voluntary intoxication in the charge to the jury.
We apply a two-pronged test to ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, appellant must show that his counsel’s performance was deficient; second, appellant must show the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S. Ct. at 2066. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Our scrutiny of counsel’s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Id. at 687, 104 S. Ct. at 2064. In other words, appellant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.
Section 8.04(b) of the penal code allows a defendant to offer evidence of temporary insanity caused by voluntary intoxication to mitigate punishment. Tex. Penal Code Ann. § 8.04(b) (Vernon 2003). A jury may take this evidence into consideration in mitigation of the penalty, if any, that it assesses. See Ramos v. State, 991 S.W.2d 430, 435 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). To be entitled to a jury instruction on temporary insanity caused by voluntary intoxication for the purpose of mitigation, however, a defendant must first establish that, as a result of his voluntary intoxication, he either (1) did not know that his conduct was wrong, or (2) was incapable of conforming his conduct to the requirements of the law he violated. Cordova v. State, 733 S.W.2d 175, 190 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1240 (1988).
In the present case, Walter Fuller and Officer Woodruff testified only that appellant was intoxicated. Neither testified that as a result of his intoxication, appellant either (1) did not know that his conduct was wrong, or (2) was incapable of conforming his conduct to the requirements of the law he violated. Thus, because appellant presented no evidence of temporary insanity caused by voluntary intoxication, he was not entitled to a jury instruction on that issue. Moreover, the record does not indicate why trial counsel did not present expert testimony on the effects of appellant’s intoxication.
We conclude and hold that appellant was not entitled to a jury instruction on temporary insanity caused by voluntary intoxication for the purpose of mitigation of punishment. Further, our independent review of the record indicates that trial counsel rendered effective assistance. We overrule appellant’s sole point.
VI. Conclusion
Our independent review of the record compels us to agree with counsel’s determination that any appeal in this case would be frivolous. Thus, we grant counsel’s motion to withdraw on appeal, overrule appellant’s point, and affirm the trial court’s judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DAUPHINOT, J. filed a concurring opinion
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 9, 2005
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTHNO. 2-04-255-CR
CHRISTOPHER XAVIER FRANKLIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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CONCURRING OPINION
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I write separately only to point out that Appellant’s claim of ineffective assistance is better raised in a writ of habeas corpus.1
LEE ANN DAUPHINOT
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 9, 2005
NOTES
* Majority Opinion by Justice Livingston; Concurring Opinion by Justice Dauphinot
MAJORITY OPINION NOTES
1. See Tex. R. App. P. 47.4.
2. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979 (legal sufficiency); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004) (same); see also Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004) (factual sufficiency).
CONCURRING OPINION NOTES
1. See Thompson v. State, 9 S.W.3d 808, 814 & n.6 (Tex. Crim. App. 1999); Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex. Crim. App. 1997).
Document Info
Docket Number： 02-04-00255-CR
Filed Date： 6/9/2005
Precedential Status： Precedential
Modified Date： 9/3/2015