Dennis Keith Hudson v. State ( 2009 )

Affirmed and Memorandum Opinion filed October 20, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00483-CR

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DENNIS KEITH HUDSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1112642

M E M O R A N D U M  O P I N I O N

A jury found appellant, Dennis Hudson, guilty of aggravated sexual assault of his step-daughter, L.L., a child, and assessed punishment at confinement for life.  In three issues, appellant contends (1) the trial court erred in stating incorrect facts concerning the law of parole during voir dire, (2) the trial court erred in allowing the State to impeach a defense witness with a successfully completed probation, and (3) appellant received ineffective assistance of counsel.  Because all dispositive issues are settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Discussion

In issues one and two, appellant asserts error based on comments by the trial court and questioning by the State to which his counsel did not object.  In issue three, he asserts ineffective assistance of counsel based on counsel=s failure to object.  The facts of the underlying offense are not relevant to our disposition of these issues, and we set forth the procedural facts relevant to the issues below.

A.  Comments during Voir Dire

In issue one, appellant argues the trial court erred in stating incorrect facts concerning the law of parole.  During voir dire, the trial court explained the range of punishment available for a first-degree felony when the person has previously been to prison.  The relevant exchange took place as follows:

VENIREPERSON:  What=s the difference between 99 years and life?

THE COURT:  There is no real practical difference.  It=s for parole.  Life is 30 years day for day in this type of case, and then you=re eligible for parole for your first time.  It doesn=t mean you are going to make parole, but after 30 years you are eligible.  The same thing with 99, it=s 30 years.

VENIREPERSON:  The maximum you can actually give is 30 years?

THE COURT:  No, because if there are B

VENIREPERSON:  He could get out in 30 years?

THE COURT:  He could.

VENIREPERSON:  If you assessed him to life?

THE COURT:  It depends on the parole board.

VENIREPERSON:  If he is sentenced to less than that, let=s say you sentence 50 years instead of 99, so is it a third of it so they get out in 17 years?

THE COURT:  A half. It=s a half, up to 30 years.  If he gets 30 years, he does 15.

VENIREPERSON:  How about even in a heinous crime like this?

. . . .

THE COURT:  Protest to the parole board.  The instruction is [sic] that I give jurors when they get to punishment is you may consider the existence of the parole law, but you cannot consider how it applies to this particular defendant because that decision is up to the Board of Pardons and Paroles.  And so you can get on the protest list.  I know that I=m on several, and you can protest parole.

VENIREPERSON:  You can give life, but he won=t have to serve more than 30 years?

THE COURT:  Right.

To preserve an issue for appeal, a party must make a timely objection specifically stating the legal basis for that objection.  See Tex. R. App. P. 33.1(a); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996).  Appellant=s trial counsel did not object to the trial court=s comments.  Thus, appellant waived any complaint regarding the trial court=s remarks.  See Rhoades, 934 S.W.2d at 120.

Appellant contends the trial court=s comments amounted to a supplemental jury charge and we should therefore review his unpreserved issue under the egregious-harm standard of Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).  In support, he relies on Rogers v. State, 38 S.W.3d 725 (Tex. App.CTexarkana 2001, pet. ref=d).  During the punishment phase in Rogers, the trial court did not provide a jury instruction on the effect of a life sentence on parole eligibility.  38 S.W.3d at 729; see Tex. Code Crim. Proc. Ann. art. 37.07 ' 4(a) (Vernon 2007).  Then, during deliberations, the trial court failed to provide a full and complete instruction in response to the jury=s question on the same matter.  Rogers, 38 S.W.3d at 729.  The appellate court applied the Almanza standard because substantive responses to jury questions during deliberations amount to supplemental jury charges.  Id. (citing Daniell v. State, 848 S.W.2d 145, 147 n.2 (Tex. Crim. App. 1993)).

Unlike Rogers and the cases cited therein, the trial court=s comments in the present case occurred during jury deliberations, not voir dire.  Therefore, Almanza does not require review of the trial court=s comments during voir dire, absent an objection.  See Rhoades, 934 S.W.2d at 119B20, 121 (applying Almanza when addressing the jury charge, but not when addressing the trial court=s comments during voir dire).

For the preceding reasons, we overrule appellant=s first issue.

B.  Impeachment Evidence

In issue two, appellant argues the trial court erred during the guilt/innocence phase by allowing the State to impeach a defense witness, L.L.=s mother, with a successfully completed probation.  See Tex. R. Evid. 609(c)(2) (stating evidence of witness=s conviction not admissible under rule if witness has successfully completed probation for crime of conviction and has not been convicted of a subsequent crime classified as felony or involving more turpitude).  As part of issue two, appellant also complains about the State=s use of the impeachment evidence in closing argument.

On direct examination, L.L.=s mother testified she did not believe her daughter=s allegations. She also testified she and appellant took the family to church three days each week and they Aloved@ it.^[1] After she and appellant separated, L.L.=s mother Aput food on the table and pa[id] the rent and [did] everything a parent needs to do to raise a family.@

Before the State=s cross-examination of L.L.=s mother, the following exchange took place at the bench:

[PROSECUTOR]:  The door has been opened towards the credibility of this witness as far as some statement that she was a good Christian mother or something to that effect. She has been previously on probation seven years for a third-degree felony, but she did successfully complete it.  However, it has been a false impression in front of the jury that she=s playing a good Christian mother in his question.

THE COURT:  Straight or deferred?

[PROSECUTOR]:  It was straight probation: Welfare fraud.

THE COURT:  Has she been convicted of anything since?

[PROSECUTOR]:  Not since then.

DEFENSE:  No.

THE COURT:  Tell me how that doesn=t apply (indicating).  Gives a false impression to the jury.

[PROSECUTOR]:  The particular question about, Was your mom otherwise a good Christian person, may have been more flattering than that false impression that=s bean [sic] left with the jury.

[DEFENSE COUNSEL]:  It [sic] up to you, but on redirect I can ask her the rest of her life and how she=s lived it.

THE COURT:  Sure.

[DEFENSE COUNSEL]:  I mean people make mistakes.  She was on probation.  She successfully completed it.

THE COURT:  All right. That=s fine.  You can do that.  I=ll let him impeach her on it and you can clear it up.

[DEFENSE COUNSEL]: Okay.

On cross-examination, the State elicited L.L.=s testimony about being placed on probation, the offense for which she was convicted, and some specifics of the offense:

Q.  Ms. [L.], back in 1999, you were put on probation for a case right?

A.  Yes, sir.

Q.  That was for a third-degree felony, welfare fraud, right?

A.  Yes, sir, but they didn=t name it as welfare fraud.

Q.  Was it illegal altering of food stamps?

A.  Yes, sir.

Q.  Third-degree felony. And that was a seven-year probation that you were placed on, right?

A. Yes, sir.

Q.  Those seven years, you successfully completed that probation, right?

A.  Yes, sir.

Q. That crime, that=s a crime of moral turpitude. Would you agree with me?

A. Yes, sir.

Q. A crime of deceit?

A. That would be a crime of deceit.

During closing, the prosecutor then argued, ASo, Mom comes in and we learn a couple of things.  One, she=s already been to the pen for a third-degree felony.  There=s her truthfulness.  There=s her credibility.@

Appellant, however, did not object to the impeachment testimony or the argument of which he complains on appeal.  He has therefore not preserved these complaints for review.  See Tex. R. App. P. 33.1(a); Ochoa v. State, 481 S.W.2d 847, 849 (Tex. Crim. App. 1972).  Accordingly, we overrule appellant=s second issue.

C.  Ineffective Assistance of Counsel

In issue three, appellant argues he was denied his Sixth Amendment right to effective assistance of counsel.  Appellant=s complaints fall into two broad categories: the first based on counsel=s lack of objection to the trial court=s comments during voir dire; and the second based on counsel=s lack of objection to the State=s impeachment of L.L.=s mother.

Legal standards.  To prevail on an ineffective assistance of counsel claim, an appellant must prove (1) trial counsel=s representation fell below the objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

A court need not address both components of the inquiry if a defendant makes an insufficient showing on one.  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.  AFailure to make the required showing of . . . deficient performance . . . defeats the ineffectiveness claim.@  Id. at 700, 104 S. Ct. at 2071.

In considering the first prong of the Strickland test, we indulge a strong presumption that counsel=s actions fell within the wide range of reasonable professional behavior and were motivated by sound trial strategy.  Id. at 689, 104 S. Ct. at 2065; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1986)).  In most cases, direct appeal is an inadequate vehicle for raising such a claim because the record is generally undeveloped and cannot adequately reflect the motives behind trial counsel=s actions.  Rylander v. State, 101 S.W.3d 107, 110B11 (Tex. Crim. App. 2003); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).   Trial counsel may have had a specific strategy for his conduct, and a reviewing court may not speculate on trial counsel=s motives in the face of a silent record.  Thompson, 9 S.W.3d at 814.  On a silent record, this court can conclude counsel=s performance was deficient only if the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

No objection to the trial court=s comments during voir dire.  Appellant first complains about counsel=s failure to object to the trial court=s comments during voir dire about the difference between a life sentence and a ninety-nine year sentence and the potential effect of parole on the sentence actually served.  Texas Code of Criminal Procedure article 37.07, section 4(a) provides that, in the penalty phase following a conviction for aggravated sexual assault, the trial court shall instruct the jury:

AUnder the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation.  If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

AIt is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

AUnder the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one‑half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn.  If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole.  Eligibility for parole does not guarantee that parole will be granted.

AIt cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

AYou may consider the existence of the parole law and good conduct time.  However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.  You are not to consider the manner in which the parole law may be applied to this particular defendant.@

Tex. Code Crim. Proc. Ann. art. 37.07 ' 4(a) (Vernon 2007). The court in the present case so instructed the jury during the penalty phase.

The trial court=s comments during voir dire, set forth in Part I.A., above, substantially tracked article 37.07, section 4(a).  Therefore, the trial court would have correctly overruled any objection, and we cannot declare appellant=s trial counsel deficient for not objecting.  See Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (ATrial counsel is not ineffective for failure to make meritless objections.@).

No objection to the State=s elicitation of testimony regarding a witness=s probation, expansion of the testimony, and reference to it during closing argument.  Appellant next complains of counsel=s failure to object to the State=s (1) questioning L.L. about an offense for which she had successfully completed probation, (2) eliciting L.L.=s testimony the offense was one of moral turpitude and deceit, and (3) referring to the offense in closing argument.

Even if we assume appellant=s counsel might have successfully objected under Texas Rule of Evidence 609(c), we do not have a record of counsel=s reasons for not having done so.^[2] Neither is the challenged conduct of such a nature that we can conclude Ano competent attorney would have engaged in it.@ Goodspeed, 187 S.W.3d at 392.^[3]

The focus at the bench conference was whether the door had been opened to the impeachment testimony, and the trial court appears to have been inclined to admit it.  Defense counsel argued that, if the prosecutor elicited the testimony, the defense could ask W.L. Aabout the rest of her life and how she=s lived it,@ and the court agreed the defense could Aclear it up.@  Given the manner in which the testimony evolved, counsel may have decided not to emphasize it by objecting before the jury, revisiting the matter on redirect, or objecting to the prosecutor=s brief comment in closing argument.

Again, we are faced with an appellate record bereft of any explanation for counsel=s decision not to object, or failure to object.  Thompson, 9 S.W.3d at 813, 814.  Because of the lack of evidence in the record reflecting trial counsel=s reasons for not objecting, we may not conclude that his performance was deficient.  Toney v. State, 3 S.W.3d 199, 210 (Tex. App.CHouston [14th] 1999, pet. ref=d); see Freeman v. State, 125 S.W.3d 505, 506B07 (Tex. Crim. App. 2003).

II. Conclusion

Having overruled appellant=s three issues, we affirm the judgment of the trial court.

/s/      Charles Seymore

Justice

Panel consists of Justices Seymore, Brown, and Sullivan.

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

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^[1]  L.L. was staying with her grandmother and attended church only on Sundays, when her grandmother allowed her to be at appellant=s house.

^[2]  Rule 609(c)(2) provides that evidence is not admissible under the rule Aif . . . probation has been satisfactorily completed for the crime for which the person was convicted, and that person has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment . . . .@  Tex. R. Evid. 609(c)(2).  We do not address whether appellant=s questioning may have opened the door to this testimony.  Cf.  Grant v. State, 247 S.W.3d 360, 366B67 (Tex. App.CAustin 2008, pet. ref=d) (stating, regarding subsection (b) prohibition on admission of prior convictions more than ten years old:  AWhere the witness creates a false impression of law‑abiding behavior, he >opens the door= on his otherwise irrelevant past criminal history and opposing counsel may expose the falsehood.@).

^[3] The challenged conduct in this case does not reach the level which courts have concluded constitutes deficient representation absent a record reflecting counsel=s reasons for his action or inaction.  See, e.g., Andrews v. State, 159 S.W.3d 98, 100 (Tex. Crim. App. 2005) (considering counsel=s failure to object to prosecutor=s misstatement of law that defendant=s sentences could not be stacked even though counsel knew prosecutor had filed a motion to cumulate sentences); Storr v. State, 126 S.W.3d 647, 652B53 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (concluding case was Arare instance when there is no trial strategy that can explain the failure of appellant=s trial counsel to request a safe release instruction@ in punishment phase of kidnapping  trial when evidence conclusively established defendant voluntarily released victim in safe place); Stone v. State, 17 S.W.3d 348, 352 (Tex. App.CCorpus Christi 2000, pet. ref=d) (considering defense counsel=s conduct of eliciting damaging inadmissible evidenceCthat defendant had been convicted of murder and released ten years earlierCwhen court had already indicated it would exclude the evidence).