Alejandro Garcia v. State ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00152-CR

Alejandro Garcia,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 08-00711-CRF-85

ABATEMENT ORDER

            Appellant’s court-appointed counsel has filed an unopposed motion to abate this appeal for the appointment of new counsel.  Counsel alleges that appellant “may wish to assert a claim of ineffective assistance of Counsel, which puts Movant into a conflict situation.”  The State does not oppose the motion.

            Therefore, we abate this cause to the trial court to determine if new counsel should be appointed.  The trial court shall: (1) conduct a hearing, if necessary, within twenty-one (21) days after the date of this Order; (2) prepare any necessary findings of fact and conclusions of law; and (3) sign a written order regarding the court’s determination.

            The district clerk shall prepare a supplemental clerk’s record containing a copy of (1) the trial court’s findings of fact and conclusions of law, if any, and (2) the trial court’s order. The supplemental clerk’s record shall be filed with the Clerk of this Court within thirty-five (35) days after the date of this Order.

            If a hearing is conducted, the court reporter shall likewise file a supplemental reporter’s record of the abatement hearing within thirty-five (35) days after the date of this Order.

PER CURIAM

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Appeal abated

Order issued and filed August 11, 2010

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. Penal Code Ann.\ § 12.34, amended by Act of May 29, 1993, 73rd Leg., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3619 (now codified\ at Tex. Penal Code Ann. § 12.34 (Vernon 1994)). Under the current Penal Code, made effective September 1,\ 1994, aggravated assault is either a first or second degree felony. Tex. Penal Code Ann. § 22.02 (Vernon 1994). \ In addition, under the current Penal Code, confinement in a community correctional facility is no longer a sentencing\ option for third degree felonies. Tex. Penal Code Ann. § 12.34 (Vernon 1994).

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IN THE

TENTH COURT OF APPEALS

No. 10-94-193-CR

        DAVID FREEMAN,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-693-C

O P I N I O N

          Appellant David Freeman was indicted on one count of attempted murder and a second count for the lesser-included offense of aggravated assault. Tex. Penal Code Ann. § 15.01, 19.02 (Vernon 1994 & Vernon Supp. 1995); Tex. Penal Code Ann. § 22.02, amended by Act of May 29, 1993, 73rd Leg., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3619 (now codified at Tex. Penal Code Ann. § 22.02 (Vernon 1994)). He was convicted by a jury on the aggravated assault charge and assessed ten years of confinement and a $10,000 fine by the same jury.

          On appeal Freeman raises three points of error: first, whether error requiring reversal resulted from the State's reference to the details of a prior offense while impeaching one of his character witnesses during the punishment phase; second, whether error requiring reversal occurred when the State during its closing argument allegedly misstated the law on a party's duty to retreat before using deadly force; and third, whether error requiring reversal resulted from the State's statement during its closing argument at the punishment phase that the jury should ignore the community correctional facility sentencing option because McLennan County does not have one. We affirm.

          A brief recitation of the facts will put Freeman's points in their proper context. Freeman and the victim, Melvin McMillion, became acquainted through Freeman's girlfriend, Marie Brooks. Brooks had allowed McMillion and his common law wife, Flossie Williams, to live in her home. Freeman did not approve of McMillion living in the same home as Brooks and wanted him to leave.

          On May 27, 1993, at around 10:30 p.m., Freeman and McMillion were involved in a confrontation at Brooks' home. According to McMillion, he was asleep on a couch when Freeman knocked on Brooks' front door. McMillion got up to let him in but then decided not to after Brooks told him not to open the door. McMillion then went back to sleep until he was awakened by Freeman cutting across his stomach with a straight razor. McMillion tried to get up, but Freeman held him down with his other hand. Eventually, McMillion escaped. He ran into the kitchen, grabbed a meat cleaver, and began to strike Freeman about the head with it. McMillion then ran into the bathroom. Freeman followed him and began to slice him some more. McMillion then fled the home and lay in the road until a motorist driving by found him.

          According to Freeman, he arrived at Brooks' home after 10:00 p.m. on May 27 to pay her a visit, as he did frequently since they had been dating for over six years. He knocked on the door, but there was no answer. He entered the house anyway, as he had done many times before when no one had come to answer the door. When he walked through the door he saw McMillion. He asked McMillion if he knew where Brooks was. McMillion asked him why he wanted to know. The two began to argue until McMillion struck Freeman with a meat cleaver. Freeman then pulled out a straight razor that he had brought with him to return to Brooks and began to cut McMillion with it. The two continued to strike at each other with their weapons until McMillion told Freeman, "I don't want no more," and the fight ended.

          At the end of the guilt-innocence stage, the jury was instructed on both attempted murder and aggravated assault. The court also gave a self-defense instruction. The jury chose to believe McMillion's version of the events on May 27 and rendered a verdict of guilt for aggravated assault.

          In his first point of error Freeman contends error requiring reversal resulted when the State impeached one of his character witnesses during the punishment phase with a question concerning a prior arrest for aggravated assault. Freeman argues that the question was improper because the State, in asking the question, referred to the weapon he used in committing the prior offense, a straight razor. Freeman alleges the State was permitted only to ask the character witness about the reason for Freeman's arrest and that any reference to the details of the offense was improper. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 1995); Walker v. State, 610 S.W.2d 481, 482 (Tex. Crim. App. [Panel Op.] 1980).

          Freeman bases his argument on Walker and its progeny. See, e.g., Montes v. State, 870 S.W.2d 643, 649 (Tex. App.—El Paso 1994, no pet.); Webb v. State, 840 S.W.2d 543, 550 (Tex. App.—Dallas 1992, no pet.). These cases that have relied upon Walker, however, have involved situations where the State admits evidence of a defendant's prior offense at the punishment phase for enhancement purposes pursuant to article 37.07, section 3(a). Here, the State did not attempt to admit into evidence Freeman's prior conviction for aggravated assault for enhancement purposes. Instead, the State was impeaching one of Freeman's character witnesses at the punishment phase. Tex. R. Crim. Evid. 405(a).

          It is true that Walker also involved the State's mentioning of the specific details of the defendant's prior offense while impeaching one of the defendant's character witnesses during the punishment phase. Walker, 610 S.W.2d at 482. The Court of Criminal Appeals, subsequent to Walker, has held that the specific details of the defendant's prior offenses may be inquired into when impeaching a defendant's character witness. Evans v. State, 757 S.W.2d 759, 760 (Tex. Crim. App. 1988) (per curiam); see Tex. R. Crim. Evid. 403(a). The State's reference to a detail of Freeman's prior conviction for aggravated assault, i.e., his use of a straight razor, came about in an impeachment question addressed to one of the defendant's character witnesses. Therefore, Evans controls and the question was, consequently, not improper under article 37.07, section 3(a). Id. Freeman's first point is overruled.

          In his second point Freeman contends the State engaged in improper jury argument at the guilt-innocence phase by misstating the law. Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990). The disputed portion of the State's closing argument consists as follows:

Now, you may not agree with the law that says that you have the duty to retreat, but that is the law, and that's the law that applies in this case. So even if . . . you believe the story that [the victim] attacked him with this meat cleaver, David Freeman had a duty to retreat out that open door, down the steps and down the street before he could use deadly force. He had that opportunity and he did not avail himself of [it.]

Freeman alleges the State improperly argued to the jury that Freeman bore an absolute duty to retreat from the victim's advances when the law imposes no such duty. Id. We disagree.

          We note that the above-quoted segment of the State's closing argument was not presented to the jury as an isolated statement. Immediately prior to the statement, the State paraphrased the court's charge on self defense. Both the paraphrase and the charge echo the law on the permissible use of deadly force in self defense as provided in the Penal Code. Section 9.32 of the code provides that a person is justified in using deadly force against another when three conditions are all satisfied: (1) if he would be justified in using force against the other under section 9.31 of the code; (2) if a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Penal Code Ann. § 9.32 (Vernon 1994).

          Accordingly, the State was not, despite Freeman's contentions, misleading the jury into thinking that he bore an absolute duty to retreat. To the contrary, the State was correctly paraphrasing the law that a defendant must retreat and may not use deadly force if a reasonable person would have first retreated. Tex. Penal Code Ann. § 9.32; Duncantell v. State, 877 S.W.2d 859, 863 (Tex. App.—Beaumont 1994, no pet.); see Werner v. State, 711 S.W.2d 639, 645 (Tex. Crim. App. 1986). The prosecutor's application of the facts to the law was a correct summation of the evidence and, therefore, constituted proper jury argument. Hughes v. State, 878 S.W.2d 142, 157-58 (Tex. Crim. App. 1993) (There are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answers to arguments from the defense; and (4) pleas for law enforcement.) (on rehearing); see Duncantell, 877 S.W.2d at 863. Freeman's second point is overruled.

          In his third point of error Freeman asserts error requiring reversal resulted from improper jury argument by the State. At the close of the punishment phase of the trial, the court instructed the jury on the possible punishment range for Freeman's conviction of aggravated assault. They were instructed that they could assess confinement in prison for at least two but no more than ten years, or they could sentence Freeman to confinement in a community correctional facility for any term of not more than one year. Tex. Penal Code Ann. § 12.34 (Vernon 1994). The jury was also informed that they could assess a fine of up to $10,000. Id.

          The State, during its closing argument to the jury at the end of the punishment phase, several times asked the jury to disregard the portion of the charge involving possible confinement in a community correctional facility. Freeman, however, failed to object to any of these allegedly improper requests.

          Generally, any error because of improper jury argument is waived by failure to make a proper and timely objection. Tex. R. App. P. 52(a); Briddle v. State, 742 S.W.2d 379, 389 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 986, 109 S. Ct. 543 (1988). The failure to object to the State's reference to a county not having a community correctional facility, even though confinement in a community correctional facility is a sentencing option provided to the jury, will waive the party's complaint on appeal. Lum v. State, 903 S.W.2d 365, 373 (Tex. App.—Texarkana 1995, no pet.). Freeman's third point is overruled.

          The judgment is affirmed.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed September 29, 1995

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