Chapman v. State

Full title: RUBEN VICTOR CHAPMAN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 3, 2007

Nos. 05-05-01349-CR, 05-05-01350-CR (Tex. App. Jan. 3, 2007)

Opinion

Nos. 05-05-01349-CR, 05-05-01350-CR.

January 3, 2007. DO NOT PUBLISH.

On Appeal from the 283rd Judicial District Court of Dallas County, Texas, (TC# F05-01068-T, F05-71607-T).

Before Justices MOSELEY, FRANCIS, and MAZZANT.

OPINION

MOLLY FRANCIS, JUSTICE.

Ruben Victor Chapman appeals his convictions for theft of property with a value of $20,000 or more but less than $100,000 and evading arrest with a motor vehicle having previously been convicted of evading arrest. After appellant entered open guilty pleas to the offenses, the jury assessed punishment at ten years confinement for each offense. In both appeals, appellant contends trial counsel rendered ineffective assistance by failing to object to victim impact and character testimony arising from extraneous offenses. In the theft case only, appellant contends the trial court omitted from the jury charge a portion of the parole instruction. Finally, both parties agree the trial court's judgments need to be modified, although they disagree about the extent of the modifications. We will modify the judgments and then affirm. In his sole issue in the evading case and his second issue in the theft case, appellant contends he received ineffective assistance of counsel because counsel allowed the State to introduce victim impact and character testimony regarding extraneous offenses. Appellant contends he was harmed by the testimony because it was highly prejudicial, the jury was not instructed in how to use it, and the State emphasized the testimony during closing argument. The victim impact testimony came from Maria Rodriguez and her daughter, Melissa Gonzales. Rodriguez and Gonzales were appellant's neighbors. Their testimony established appellant and Gonzales were involved in a brief relationship as young teenagers. After Gonzales became pregnant, she chose to terminate the pregnancy because of her age and her belief appellant would be an unsuitable parent. After Gonzales ended her relationship with appellant, he began harassing and threatening her and her family. Rodriguez and Gonzales alleged appellant threw firecrackers, bricks, and potatoes at their home, used a stolen truck to ram three family vehicles, sent Gonzales threatening letters, and telephoned their home from jail late at night. Gonzales testified appellant followed her to school in stolen vehicles. Because appellant stole cars, Gonzales never knew what vehicle appellant would be using. Appellant would drive up beside Gonzales's truck, honk his horn, and demand she pull over. Rodriguez testified the neighborhood was very peaceful during periods when appellant was confined. The exact scope of appellant's activities was hotly disputed at trial with the defense contending appellant did not have access to a jail telephone late at night during periods when some of the calls occurred, was confined at the time some of the incidents occurred, and could not have committed all the acts Rodriguez and Gonzales described. In addition to testifying about the extraneous offenses, Rodriguez and Gonzales testified, without objection, about the impact the extraneous offenses had upon them. Rodriguez testified she was so fearful of appellant she installed three video surveillance cameras to record what was happening around her home. Rodriguez told the jury she feared for Gonzales's life, and she could not sleep when appellant was not confined. She asked the jury to assess the maximum sentence. Gonzales testified she memorizes all of the cars in the neighborhood and she records the license plate of any unfamiliar cars in case something happens. When she hears loud music, she knows appellant and his friends are present. She sometimes stays up to make sure nothing happens to her home. Gonzales described how appellant's activities made her feel for the past five years: "You don't feel secure at your house. You don't feel free. You can't do anything without somebody following you. You watch your back to see if anybody is following you." Gonzales related she was scared of appellant and implored the jury to "put him away as much as you can, please." Steve Forrest, another of appellant's neighbors, provided the victim character evidence at issue. Forrest testified generally about appellant's adverse effect upon the neighborhood. Although Forrest could not implicate appellant directly, Forrest implied appellant was responsible for burglaries, loud music, and drinking that started at the time appellant moved to the neighborhood to live with his grandmother. Forrest testified a series of cars was parked in front of appellant's house and he saw appellant driving some of them. A number of abandoned cars began appearing in the neighborhood alleys. The unfamiliar cars were mostly Honda Accords with broken vent windows, broken steering columns, and t-shirts or towels wrapped around the steering wheels. Forrest claimed he saw appellant ram Gonzales's sister's car twice with a truck before driving away. Although Forrest could not opine on appellant's reputation in the community, he did opine that Rodriguez and her daughters were nice, that Rodriguez was a watchful parent, and he never noticed them causing any problems in the neighborhood. Appellant points out he was tried for theft of a motor vehicle and evading arrest. The complainants in these offenses were police officers. Appellant contends Rodriguez's and Gonzales's testimonies constituted improper victim impact evidence involving extraneous offenses that was both irrelevant and inadmissible. Appellant contends Forrest's comments about Rodriguez and Gonzales constitute improper victim character evidence. Appellant contends counsel rendered ineffective assistance by failing to object on relevance grounds to the objectionable testimony. Appellant contends he was prejudiced by counsel's error in that the State emphasized appellant's conduct toward Gonzales and Rodriguez in asking the jury to assess the maximum ten-year sentence and the jury did assess the maximum sentence. To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 667-68, 694 (1984). We conclude appellant cannot meet either prong of the Strickland test. Assuming, without deciding, that the testimony at issue was objectionable, appellant concedes the record does not reveal counsel's reasoning for not objecting to it. Without knowing why counsel did not object, we cannot evaluate her performance under the first prong of Strickland. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding counsel's reasons for her conduct, we will defer to her decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). We observe counsel provided a vigorous defense that included cross-examining the State's witnesses and eliciting sympathetic testimony from appellant's grandmother about his disadvantaged background. Without counsel's explanation, we cannot conclude counsel did not have sound strategic reasons for allowing the State to present the victim impact and character evidence at issue. See Tong v. State, 25 S.W.3d 707, 713-14 (Tex.Crim.App. 2000) (en banc) (rejecting similar complaint because record was inadequate). Thus, appellant cannot satisfy the first prong of Strickland. Moreover, even if counsel should have objected, appellant cannot show he was harmed by counsel's mistake. Appellant's manifest purpose in harassing Rodriguez and Gonzales was to frighten and disturb them. Even without express testimony from the victims acknowledging appellant's success, there is a reasonable probability the jury would conclude on its own that the victims were adversely impacted by his harassment. Furthermore, aside from the victim character evidence, Forrest's other testimony established appellant was solely responsible for destroying the peace of the victims' neighborhood. Even without Forrest's express opinion that Rodriguez and Gonzales were well-behaved, the jury would draw an unfavorable comparison between appellant and his victims from Forrest's unobjectionable testimony. Even without any testimony regarding extraneous offenses against Rodriguez and Gonzales, the State established appellant had an extensive record of offenses. The present cases were especially egregious because after stealing a police bait car, appellant led officers on a dangerous eighty-mile-per-hour chase through a residential neighborhood on a Saturday afternoon culminating in an accident that destroyed the stolen vehicle. Accordingly, one need not resort to speculation about the effect of the extraneous victim impact testimony to explain the jury's assessment of maximum sentences in these cases. Thus, we conclude appellant cannot meet the second prong of Strickland. See Strickland, 466 U.S. at 694. We overrule appellant's sole issue in the evading case and second issue in the theft case. In his first issue in the theft case, appellant contends the trial court erred in omitting from the jury charge a portion of the mandatory jury instruction regarding the effect of parole. See Tex. Code Crim. Proc. Ann. Art. 37.07, § 4(c) (Vernon 2006). The parole instruction is mandatory and failure to include it in the court's charge is error. See Luquis v. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). The parole law instruction exists to both (1) inform the jury generally regarding the concepts of parole and good conduct time, and (2) to prohibit the jury from taking into account the possibility of parole and good conduct time in assessing punishment. See id. at 360. The parole instruction is designed to increase jury sentences and thus it benefits the State rather than appellant. See Grigsby v. State, 833 S.W.2d 573, 576 (Tex.App.-Dallas 1992, pet. ref'd). The trial court was required by statute to instruct the jury as follows:

Under 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.

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

Under 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 plus any good conduct time earned equals one-fourth of the sentence imposed. Eligibility for parole does not guarantee that parole will be granted.

It 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.

You 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(c) (italics added). The instruction the trial court submitted to the jury omitted the italicized language. Appellee concedes, and the record reflects, he did not object to the charge error. Because appellant did not object in the trial court to the error, we review the entire record to determine whether the error was so egregious and created such harm that appellant did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g); Batiste v. State, 73 S.W.3d 402, 407 (Tex.App.-Dallas 2002, no pet.). To constitute "egregious harm," an error must affect the very basis of the case, deprive appellant of a valuable right, vitally affect a defensive theory, or make the case for punishment clearly and significantly more persuasive. Batiste, 73 S.W.3d at 407. We assess the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information in the record. Id. Egregious harm is difficult to prove and is determined on a case-by-case basis. Id. Although the trial court did omit a single sentence from the mandated instruction, the instruction as given still accomplished the twin purposes of informing the jury how parole works and prohibiting them from considering how parole might apply to appellant. Additionally, the trial court did instruct the jury: You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles of the State of Texas and are no concern of yours.

Similarly-worded instructions have been interpreted as curative instructions that would discourage the jury from giving a harsher sentence. See Grigsby, 833 S.W.2d at 577; Roberts v. State, 849 S.W.2d 407, 410 (Tex.App.-Fort Worth 1992, pet. ref'd). In addition to the curative instruction, the State made much the same point during voir dire:

Now, I know a number of you probably have a question in your mind. You have heard about things like the parole law. You have heard about the parole laws, haven't you? Has everybody heard about the parole law? Well, what we can do is we can say that there are some parole laws, but you are not allowed to consider it in assessing your punishment, because you don't control the Parole Board, all right? So, you know, just a hypothetical situation, let's say if you wanted to send somebody away to prison for 20 years. And then you go back and you say, well, he will probably get paroled after, you know, a certain amount of time, so we're going to give him more. Well, there's a chance that he can serve all the time you give him. All right? So what we're talking about is you are not allowed to consider how the parole laws will affect the sentence, how good conduct time will affect a sentence. What you are here to decide is what the punishment should be. We presume the jury followed the trial court's instructions. See Luquis, 72 S.W.3d at 366. The record contains no indication that the jury was confused or concerned about the parole laws or that it disobeyed the trial court's instructions. In the absence of any evidence, we decline to speculate on any harmful effects of omitting the language from the parole instruction. See Myres v. State, 866 S.W.2d 673, 674 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Although appellant received the maximum available sentence in both cases, the jury's assessment of those harsh sentences is amply supported by evidence showing he has a lengthy criminal history including fifteen prior convictions and six pending cases. Even trial counsel and appellant's grandmother agreed he deserved more than the two-year minimum sentences. Trial counsel and appellant's grandmother asked the jury to sentence him from the middle of the punishment range while the State, arguing appellant's numerous offenses establish he is a career criminal, requested maximum ten-year sentences. Neither side addressed parole in final argument. We cannot conclude under these circumstances that the jury's choice to assess punishment at the top of the range instead of the middle shows appellant was egregiously harmed by the instruction. Despite the lack of evidence of egregious harm, appellant cites authorities wherein appellate courts found egregious harm from erroneous jury instructions. Without deciding the correctness of those authorities holdings, we observe they are distinguishable from the present cases because they involved jury instructions that erroneously understated the time the defendants would have to serve before becoming eligible for probation. See, e.g., Hill v. State, 30 S.W.3d 505, 507 (Tex.App.-Texarkana 2000, no pet.). We conclude the record does not show appellant was egregiously harmed. See Batiste, 73 S.W.3d at 407; Roberts, 849 S.W.2d at 410 (concluding defendant not egregiously harmed by omission of parole instruction where trial court gave instruction not to consider parole, evidence supported punishment assessed, and no showing of actual harm). Therefore, we overrule appellant's first issue in the theft case. Appellant filed a motion to reform the judgments alleging the judgments erroneously reflect he entered pleas of not guilty and the sentences were to run consecutively. The State included in its brief a cross-point alleging the judgments correctly set out appellant's pleas of guilty but agreeing with appellant that the judgments erroneously reflect consecutive sentences. After reviewing the judgments, we agree with the State. Appellant's motions to reform the judgments are denied. We sustain the State's cross-point. We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment in each case to reflect appellant's sentences will run concurrently. As modified, we affirm the trial court's judgments.