Derrick L. Salter v. State ( 2002 )

NO. 07-01-0431-CR NO. 07-01-0432-CR NO. 07-01-0433-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 9, 2002

______________________________



DERRICK L. SALTER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 209^TH DISTRICT COURT OF HARRIS COUNTY;

NOS. 815665, 815666, 815667; HONORABLE MICHAEL MCSPADDEN, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

In this consolidated appeal, appellant Derrick L. Salter challenges three convictions asserting a single point of error. He argues he was denied reasonably effective assistance of counsel in violation of his Sixth Amendment constitutional right to such assistance. His argument is based on his trial attorney's failure to object to the trial court's statements to the jury panel regarding whether any sentences would run concurrently or consecutively. We affirm.

A brief recitation of the facts of the underlying offenses is helpful to understand the issue presented. In the early evening of December 31, 1998, David Bodden (Bodden) and Beatriz Casas (Casas), coworkers at Ace Cash Express, were just leaving work when they were approached by two masked and armed men. The men forced both employees into Casas's car, drove away from the store and said they intended to rob the store. They obtained a store key and safe combination from the victims and returned to the store. The men threatened both employees with injury.

Bodden suggested that he enter the store and open the safe. Once inside, Bodden locked the door and called the police. The men left with Casas, taking Bodden's car, which contained his wallet and mobile phone. Casas was transferred to a station wagon, where she was raped by one of the men while the other drove the car. She was released naked in a field and made her way to a nearby house. Using telephone records for calls made from Bodden's mobile phone that night and DNA evidence obtained from Casas, police identified appellant, arrested him and charged him with aggravated robbery, aggravated kidnapping, and aggravated sexual assault.

Appellant pled not guilty in each case and all three cases were tried jointly to a jury in May 2001. The jury rejected the testimony of appellant's alibi witnesses and convicted him of all three offenses. The jury assessed punishment at confinement for 40 years for the sexual assault, 25 years for kidnapping, and 25 years for the robbery. The judgment in each case recites that the sentence is to be served concurrently with any other sentence. Appellant filed a timely notice of appeal and now asserts a single point of error in challenge of each conviction.

Appellant's complaint is based on trial counsel's failure to object to the trial court's response to a question from a member of the venire inquiring whether the sentences imposed in each case would be cumulative or not. He argues this single error amounted to ineffective assistance of counsel.

The standard by which we are to review claims of ineffectiveness of trial counsel is that set out in the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). In order to show that trial counsel was ineffective, a claimant must establish two elements: 1) his counsel's performance was deficient, and 2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.

The first component is met by showing that trial counsel made errors so significant that he was not functioning as the counsel guaranteed by the Sixth Amendment to the United States Constitution. Id. The second component necessitates 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. A claimant must show that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. When reviewing a claim of ineffective assistance, we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. The defendant asserting ineffective assistance must present a record with evidence of the reason/reasons that the alleged ineffective assistance actions or omissions were not trial strategy. The defendant must prove that counsel's errors, judged by the totality of the representation and not by isolated instances of error or by only a portion of trial, denied him a fair trial. Strickland, 466 U.S. at 695.

As noted above, during voir dire, a venire member asked whether any sentences would be served consecutively or not. The prosecutor responded that it was not an issue for the jury's consideration and should not be considered. The court also stated it was not a factor to be considered by the jury and the issue would be decided by the court. No objection was made to the response of the prosecutor or the court. During deliberations, the jury sent out a note posing the same question. The court responded that it would make that decision.

Appellant now contends the responses provided during voir dire misstated the applicable law set out in section 3.03 of the Penal Code, which requires sentences imposed in joint trials to be served concurrently subject to specific exceptions. In support he cites Haliburton v. State, 578 S.W.2d 726 (Tex.Crim.App. 1979), which held it was not an abuse of discretion for a court to instruct a jury that sentences in a joint trial would be served concurrently. Id. at 729. We do not agree this holding supports appellant's conclusion that the failure to give such an instruction is error. A footnote by Judge Clinton in Gordon v. State, 633 S.W.2d 872 (Tex.Crim.App. 1982), offers support for withholding such an instruction on the rationale that it is not a proper issue for the jury to consider. Id. at 879, n.16. Under the applicable case law, we cannot agree that the failure to object was deficient performance.

Moreover, appellant has failed to overcome the presumption that counsel's decision not to object was sound trial strategy. By allowing the jury to believe the sentences may be served sequentially, rather than concurrently, trial counsel may have felt that the jury would be less likely to impose punishment near the maximum for each offense. While we may not speculate as to the jury's mental process in reaching its verdict, trial counsel may, and it is appellant's burden to show the decision could not be the result of sound trial strategy. Appellant has failed to establish that trial counsel's performance was deficient. We need not consider the second prong of the test set out in Strickland. We overrule appellant's sole issue and affirm the judgments of the trial court.

John T. Boyd

Chief Justice

Do not publish.

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NOS. 07-09-0301-CR, 07-09-0302-CR, 07-09-0303-CR,

07-09-0304-CR, 07-09-0305-CR, 07-09-0306-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

 AUGUST 20, 2010

VIENGKHONE SIKALASINH, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NOS. 58,210-A, 58,211-A, 58,212-A, 58,213-A, 58,216-A, 58,217-A;

 HONORABLE HAL MINER, JUDGE

Before QUINN, C.J.. and CAMPBELL and PIRTLE, JJ.

OPINION

            Appellant, Viengkhone Sikalasinh,[1] was convicted by a jury of three counts of aggravated assault with a deadly weapon, one count of aggravated assault with a deadly weapon--family member, and two counts of aggravated robbery, each enhanced by a prior felony conviction.[2]  He was sentenced by a jury to six concurrent sentences of twenty, twenty, ten, sixty, fifteen, and fifteen years confinement, respectively.  Appellant asserts three issues on appeal:  (1) whether the trial court erred by requiring him to pay court-appointed attorney fees as a cost; (2) whether there was legally sufficient evidence that he was able to pay court-appointed attorney fees as a cost; and (3) whether he should be required to pay transportation, meal and lodging expenses of a non-resident witness who was neither an expert witness nor a peace officer.  We modify the trial court's judgment in Cause No. 58,210-A to clarify that payment of $16,510.26 in court-appointed attorney fees and $537.05 in witness fees is not a part of the court costs ordered in the case and affirm the judgment as modified. The judgments in Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A, and 58,217-A are affirmed.

Background

            On October 1, 2008, Appellant was indicted for aggravated assault with a deadly weapon enhanced in three criminal actions;[3]  aggravated assault with a deadly weapon--family member in a single criminal action;[4] and aggravated robbery in two criminal actions.[5] 

            During the course of the pretrial proceedings, Appellant filed three affidavits requesting court-appointed counsel.  His financial information showed he was too poor to employ counsel, and the trial court granted his requests based upon financial need.[6]

            The State's six criminal actions against Appellant were consolidated on August 10, 2009, and tried before a jury over the next four days.  During its case-in-chief, the State called the manager of the apartment complex where Appellant's crime spree had occurred.  At the time of trial, this particular witness had moved to McLennan County, Texas.  Thus, the State subpoenaed her to trial as an out-of-county or non-resident witness.

            Appellant was convicted of all charges and sentenced in accordance with the jury's verdict.  Subsequently, the trial court approved a Witness Fee Claim for the non-resident witness's trial attendance totaling $537.05 for lodging, meal, and travel expenses incurred.[7]  The trial court also approved an Attorney Fee Voucher submitted by Appellant's court-appointed attorney for services rendered from July 10, 2009 until the end of trial totaling $16,510.26.

            On September 1, 2009, the trial court signed Judgments of Conviction by Jury in each of the six cases consolidated for trial.  In each case, the summary portion of the judgment reflects "Court Costs: see attached," while the narrative portion of the judgment orders Appellant to pay court costs "as indicated above."  In the Clerk's Record from Cause No. 07-09-0301-CR (trial court Cause No. 58,210-A), the first page following the judgment is a certified bill of costs, also dated September 1, 2009, that reflects "Attorney Fees (Court Appointed) $16,510.26" and "Witness Fee $537.05."  In the remaining five criminal actions, Cause Nos. 07-09-0302-CR, 07-09-0303-CR, 07-09-0304-CR, 07-09-0305-CR and 07-09-0306-CR (trial court Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A, and 58,217-A, respectively), the first page following the judgment in the Clerk's Record is a certified bill of costs reflecting no attorney's fees and no witness fees. 

            Issues 1 & 2 -- Court-Appointed Attorney Fees

            Under article 26.05 of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees if the court determines that a defendant has financial resources that enable him to offset, in part or in whole, the cost of legal services provided.  See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009).  The record before us, however, does not contain a determination or finding by the trial court that Appellant had any financial resources or was "able to pay" any appointed attorney fees.[8]  In fact, subsequent to the judgment, the trial court appointed an attorney to handle Appellant's appeal due to his indigency. 

            Prior to filing his appeal, Appellant did not have the benefit of the recent opinion by the Court of Criminal Appeals holding that, without record evidence to demonstrate a defendant's financial resources to offset the costs of legal services, a trial court errs if it orders reimbursement of court-appointed attorney fees.  Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App. 2010).  In light of this recent ruling, the State candidly concedes that the court-appointed attorney fees here, $16,510.26, should not have been included in the Judgment as costs to be paid by Appellant because there is no record evidence indicating Appellant is "able to pay."  We agree.  Accordingly, Appellant's issues one and two are sustained as to Cause No. 07-09-0301-CR (trial court Cause No. 58,210-A), but are overruled as to the remaining five actions.

            Issue 3 -- Witness Fees

            Appellant also asserts he is not liable for the non-resident witness fees because there is no authority for him to be ordered to pay, as costs of court, witness fees paid pursuant to article 35.27[9] of the Texas Code of Criminal Procedure.[10]  The State contends that article 102.002 of the Texas Code of Criminal Procedure authorizes the trial court to assess witness fees paid pursuant to article 35.27 as costs of court.   We disagree with the State.  

            Every person subpoenaed for the purpose of giving testimony in a criminal proceeding who resides outside the county in which the prosecution is pending is entitled to be reimbursed by the state for reasonable and necessary transportation, meal, and lodging expenses incurred by that witness by reason of his or her attendance as a witness.  See art. 35.27, § 1(a).  Where a county has paid those expenses, the county is entitled to reimbursement by the state as an assignee of the witness.  See art. 35.27 § 7.  Here, pursuant to article 35.27, § 7, Potter County was paid the sum of $537.05 as compensation for the expenses incurred in connection with the attendance of the non-resident witness in Appellant's case.  At issue here is whether the trial court properly assessed the amount of that reimbursement against Appellant as costs of court.

            Article 35.27 provides a mechanism for the reimbursement of witness expenses; it does not provide for the assessment of those expenses as costs of court.  Therefore, the State relies upon article 102.002 as authority for assessment of "witness fees" as costs of court.  Because article 102.002 does not expressly provide for the assessment of article 35.27 payments as costs of court, resolution of this issue involves the statutory construction of article 102.002.

            Standard of Review

            Issues governed by statutory construction are questions of law for the reviewing court to decide. City of Lubbock v. Adams, 149 S.W.3d 820, 826-27 (Tex.App.--Amarillo 2004, pet. denied).  Because proper statutory construction is a question of law, a trial court has no discretion in rendering an interpretation; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992), and no particular deference need be given to the trial court's findings by the reviewing court. Bandera v. Indep. Sch. Dist. v. Hamilton, 2 S.W.3d 367, 370 (Tex.App.--San Antonio 1999, pet. denied).  Thus, when we construe a statute, we conduct a de novo review; Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002), with our primary objective being to ascertain and give effect to the Legislature's intent. Texas Dept. of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 176 (Tex. 2004).  We construe a statute as written and, if possible, ascertain the legislative intent from the language used in the statute.  Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994).  Thus, we begin with the plain and common meaning of the statute's words.  Texas Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).

            Article 102.002 - Texas Code of Criminal Procedure

            Chapter 102 of the Texas Code of Criminal Procedure, entitled "Costs Paid by Defendants," provides a general framework for the assessment of costs by a trial court in a criminal proceeding.[11]  Under Subchapter A, entitled "General Costs," we find article 102.002 dealing with "witness fees."

            Article 102.002 states as follows:

(a) Repealed by Acts 1999, 76th Leg., ch. 580, Sec. 11(a), eff. Sept. 1, 1999.

(b) The justices of the peace and municipal courts shall maintain a record of and the clerks of district and county courts and county courts at law shall keep a book and record in the book:

(1) the number and style of each criminal action before the court;

(2) the name of each witness subpoenaed, attached, or recognized to testify in the action; and

(3) whether the witness was a witness for the state or for the defendant.

(c) Except as otherwise provided by this subsection, a defendant is liable on conviction for the fees provided by this article for witnesses in the defendant's case. If a defendant convicted of a misdemeanor does not pay the defendant's fines and costs, the county or municipality, as appropriate, is liable for the fees provided by this article for witnesses in the defendant's case.

(d)  If a person is subpoenaed as a witness in a criminal case and fails to appear, the person is liable for the costs of an attachment, unless he shows good cause to the court why he did not appear.

(Emphasis added).

            Pursuant to article 102.002, in order for a defendant to be liable for witness fees, three events must occur: (1) the defendant must be convicted, (2) the witness must have testified in the "defendant's case," and (3) the fees must be "provided by this article," i.e., article 102.002. See art. 102.002(c).  Here, clearly Appellant was convicted; therefore, the two questions remaining are (1) whether or not the witness testified in the “defendant's case,” and (2) whether the fees paid were provided by article 102.002.

            As to the first question, Appellant contends that because the non-resident witness testified in the State's case-in-chief only, she did not testify in the "defendant's case."  The State disagrees, contending that the article applies because the non-resident witness was a witness in the prosecution of the defendant's case.  Based upon our analysis of the second question pertaining to whether the fees were provided by article 102.002, we need not decide this question.

            As to the second question, Appellant contends the plain language of article 102.002 does not provide for the assessment of non-resident witness fees paid pursuant to article 35.27.  The State counters by contending that it does.

            Prior to its repeal in 1999, section (a) of article 102.002 provided:[12]

A person subpoenaed, attached, or recognized as a witness, other than a witness entitled to receive compensation under Article 35.27 of this Code, is entitled to receive $1.50 per day in attendance in court and six cents per mile traveling to or returning from the trial.  In order to receive compensation under this article, the witness, or another credible person representing the witness, must sign an affidavit stating the number of days the witness attended the court and the number of miles the witness traveled to and from the place of trial. The affidavit must be filed with the papers of the case.

 (Emphasis added.)

             Therefore, prior to the repeal of subparagraph (a), the plain language of article 102.002 did not authorize a trial court to assess non-resident witness fees paid pursuant to article 35.27 as costs of court.   Therefore, the question becomes, by repealing subparagraph (a), did the Legislature intend to remove that exclusion? 

            Any analysis of the Legislature's intent in repealing subparagraph (a) is complicated by the fact that in repealing that subparagraph, the Sixty-Sixth Legislature also repealed subparagraphs (b) and (c), and then without making reference to the repeal, amended subparagraphs (b) and (c) to include procedures governing the prosecution and administration of misdemeanor offenses in municipal courts.  See Act of May 22, 1999, 76^th Leg., R.S., ch. 580, § 11(a), 1999 Tex. Gen Laws. 3119, 3123, approved June 18, 1999, effective September 1, 1999 (repealing subparagraphs (a), (b) and (c)); See Act of May 30, 1999, 76^th Leg., R.S., ch. 1545, § 63, 1999 Tex. Gen. Laws 5314, 5329-30, approved June 19, 1999, effective September 1, 1999 (amending subparagraphs (b) and (c)).  If the intent of the Legislature had been the removal of the article 35.27 exclusion, it seems the more simple solution would have been to repeal only that portion of subparagraph (a).  Accordingly, an analysis of the bill's history does not support the State's contention that witness fees paid pursuant to article 35.27 are assessable as costs of court under article 102.002.

            Finally, although counterintuitive to the ultimate position taken, the State argues that no substantive change in the law was intended by the Legislature when it repealed subparagraph (a).  We see no reason to disagree with that analysis. If the Legislature did not intend to substantively change the provisions of subparagraph (c), the repeal of subparagraph (a) did not expand the assemblage of recoverable costs of court to include non-resident witness expenses paid pursuant to article 35.27. Accordingly, we hold that article 102.002 does not provide for the assessment of witness fees paid pursuant to article 35.27 as costs of court.  Appellant's third issue is sustained.  

Conclusion

            Having determined that the trial court erred by requiring Appellant to reimburse the State for the costs of his court-appointed attorney and the non-resident witness article 35.27 reimbursement expenses, we modify the judgment in Cause No. 58,210-A to clarify that the order to pay court costs does not include a requirement that he pay $16,510.26 in attorney fees or $537.05 in witness fees, and the judgment, as modified, is affirmed. The trial court's judgments in Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A, and 58,217-A are affirmed. 

                                                                                                Patrick A. Pirtle

                                                                                                      Justice 

Quinn, C.J. and Campbell, J., concurring.

Publish.

---

[1]We note that while the judgment in each case states Appellant's first name as "Viengkhone," the indictments in Cause Nos. 58,210-A, 58,211-A, 58,212-A and 58,213-A state Appellant's first name as "Vienkhone."  Where names are substantially the same in character and pronunciation, though slightly varied in spelling, under the doctrine of idem sonans, the variance is immaterial.  Jenke v. State, 487 S.W.2d 347 (Tex.Crim.App. 1972).

[2]See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009) and. § 29.03 (Vernon 2009).

[3]Cause Nos. 58,210-A; 58,211-A; 58,212-A.

[4]Cause No. 58,213-A.

[5]Cause No. 58,216-A; 58,217-A.

[6]At various stages of the pretrial proceedings, two of Appellant's appointed-counsel moved to withdraw from representation. Both motions were granted and new counsel was appointed.

[7]The Witness Fee Claim form, which is signed by the non-resident witness and approved by the trial judge, requests the Comptroller of Public Accounts to reimburse Potter County, pursuant to Tex. Code of Crim. Proc. Ann. article 35.27 (Vernon 2006), for expenses incurred by the witness, but paid by Potter County, on account of her attendance as a witness in Appellant's case.

[8]Unless a material change in his financial resources occurs, once a criminal defendant has been found to be indigent, he is presumed indigent for the remainder of the proceedings.  Tex. Code Crim. Proc. Ann. art. 26.04(p) (Vernon Supp. 2009).

[9]Article 35.27 states, in pertinent part, as follows:

Every person subpoenaed by either party or otherwise required or requested in writing by the prosecuting attorney or the court to appear for the purpose of giving testimony in a criminal proceeding who resides outside the state or the county in which the prosecution is pending shall be reimbursed by the state for the reasonable and necessary transportation, meal, and lodging expenses he incurs by reason of his attendance as a witness at such proceeding.

See Tex. Code Crim. Proc. Ann. art. 35.27, § 1(a) (Vernon 2006).

[10]For convenience, we will cite provisions of the Texas Code of Criminal Procedure throughout the remainder of this opinion simply as "article _______." 

[11]The overall framework for the assessment of costs by a trial court in a criminal proceeding is both convoluted and confusing.  Part of this confusion is created by the fact that customarily bills of costs prepared by court clerks do not reflect the authority by which those costs are assessed.  Adding to the confusion is the plethora of overlapping legislatively enacted provisions dealing with costs to be paid by criminal defendants.  See, e.g., Tex. Alco. Bev. Code Ann. § 106.12 (Vernon 2007); Tex. Bus. & Com. Code Ann. § 3.506 (Vernon Supp. 2009); Tex. Bus. Org. Code Ann. § 10.365 (Vernon Pamph. Supp. 2009); Tex. Code Crim. Proc. Ann. arts. 17.42, 17.43, 17.441, 37.073, 42.037, 42.12, 42.22, 45.0216, 45.026, 45.041, 45.051, 45.055, 45.0511(c-1), 45.0511(f)(1 - 2), 45.052, 45.203, 62.353, 102.001 - 102.072, 103.0031 (Vernon 2006 & Supp. 2009); Tex. Edu. Code Ann. §37.011 (Vernon Supp. 2009); Tex. Fam. Code Ann. §§ 8.262, 8.267, 8.302, 8.303, 45.106, 53.03, 54.032, 54.0411, 54.0461, 54.0462, 54.061, 81.003, 108.006, 110.002, 110.004, 110.005, 158.319, 158.403, 158.503, 160.762, 232.013 (Vernon 2006, 2008 & Supp. 2009); Tex. Gov't Code Ann. §§ 25.0593, 25.0594, 25.1572, 25.2223, 30.00014, 30.00147, 41.258, 51.601,  51.702 - 51,703, 54.313, 54.403,54.745, 54.663, 54.913, 54.983, 54.954, 54.1116, 76.015, 82.0361, 102.001 - 103.033, 411.081 (Vernon 2005 & Supp. 2009); Tex. Health & Safety Code Ann. §§ 161.255, 469.004, 821.023 (Vernon 2010); Tex. Hum. Res. Code Ann. § 152.0522 (Vernon 2001); Tex. Local Gov't Code Ann. §§ 118.131, 132.002, 132.003, 133.101 - 133.154, 191.007 (Vernon 2008 & Supp. 2009); Tex. Parks and Wildlife Code Ann. §§ 12.110, 12.308 (Vernon Supp. 2009); Tex. Transp. Code Ann. §§ 284.2031, 521.026, 521.048, 542.403, 542.407, 545.412, 548.605, 601.263, 706.006 (Vernon 1999, 2007 & Supp. 2009) (not intended as an exhaustive list).  We encourage court clerks to draft their bills of costs in a manner that would allow a reviewing court to determine the legal authority upon which a particular fee is based.  Furthermore, as pointed out by the concurring opinion of Justice Campbell, as it currently exists, article 102.002 does not provide for the assessment of any fees. Accordingly, we encourage the Legislature to consider clarification of this article in particular and the entire court costs scheme in general.

[12]See Act of May 17, 1985, 69^th Leg., R.S., ch. 269 § 1, 1985 Tex. Gen. Laws 1300, 1302.