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concluding that a witness's statement that "this ain't the first time it happened" was brief and nonspecific, and trial court's instruction to disregard was given immediately after the statement and was the proper curative measure
Summary of this case from Morales v. StateOpinion
No. 04-15-00602-CR
08-31-2016
Roger DAVIS, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR4694
Honorable Steve Hilbig, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
A jury found appellant Roger Davis guilty of felony assault—family violence, and the trial court sentenced Davis to thirty years' confinement. In six issues, Davis challenges his conviction. We affirm the trial court's judgment.
BACKGROUND
Davis's conviction arose out of an incident that occurred after his girlfriend, complainant Tiy Cain, drove herself and others to a family gathering. When Cain reached the location of the event, everyone except Cain went inside the apartment where the gathering was located. Cain remained outside. Sometime later, Cain's seven-year-old daughter alerted the family to an altercation involving her mother. The family went outside and found Cain visibly injured and upset; they immediately called police. Cain told responding officers Davis attacked her. She also identified Davis as her attacker in her written account of the event, which was given later that day. However, she later recanted her allegations, claiming another man — Ricky Armstrong — assaulted her, not Davis. Cain's sister testified she did not see Armstrong on the day of the assault; rather, she testified she saw Davis leaving in a vehicle immediately after the assault.
The State subsequently indicted Davis for assault—family violence pursuant to section 22.01(b)(2)(A) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West Supp. 2015). The offense charged was a felony based on the allegation that Davis had previously been convicted of assault—family violence. See id. After a trial, the jury returned a guilty verdict. The trial court sentenced Davis to thirty years' confinement and assessed a $1,000.00 fine. This appeal followed.
ANALYSIS
As noted above, Davis raises six issues on appeal. He contends: (1) the trial court erred in refusing his offer to stipulate to a jurisdictional offense; (2) the trial court failed to properly charge the jury with respect to the jurisdictional offense; (3) the trial court improperly denied his motion for mistrial based on the admission of certain witness testimony; (4) the trial court erred in overruling his objection to certain information contained in a State's exhibit; (5) the evidence is legally insufficient to prove the prior offense; and (6) his trial counsel was ineffective.
This is not the order in which Davis presented his appellate issues. However, we address the issues in the way we find most practical.
Stipulation to Jurisdictional Offense
Davis had previously been convicted of assault—family violence. The State alleged the prior conviction to enhance the current offense to a felony. Before voir dire, Davis claims he offered to stipulate to the prior conviction. See id. § 22.01(b)(2)(A); Reyes v. State, 314 S.W.3d 74, 81 (Tex. App.—San Antonio 2010, no pet.) (holding that proof of prior conviction is element of offense of felony assault—family violence and must be proved by State). Davis contends the trial court refused his offer to stipulate.
We disagree with Davis's claim that the trial court refused an offer to stipulate; rather, the court advised Davis the stipulation had to be in writing. No written stipulation was presented, nor did Davis object to the trial court's requirement of a written stipulation. Thus, at trial, the State presented evidence to meet its burden to prove the jurisdictional conviction.
On appeal, Davis argues the trial court's refusal of his offer to stipulate was error, resulting in the improper admission of the prior conviction in violation of Rules 403 and 404(b) of the Texas Rules of Evidence. See TEX. R. EVID. 403, 404(b). In response, the State contends Davis has failed to preserve this complaint for appellate review. Although we do not agree the complaint was waived, we hold the trial court did not err because Davis never stipulated to the prior offense in such a way as to relieve the State of its burden to prove the prior offense.
To convict Davis, the State had to prove beyond a reasonable doubt that Davis: (1) intentionally, knowingly, or recklessly, (2) caused bodily harm to Cain, with whom he had a dating relationship, and (3) had previously been convicted of assault—family violence. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). Thus, the State had to prove Davis had previously been convicted of assault—family violence. One of the ways the State can satisfy its burden is by way of a stipulation from the defendant, admitting the prior conviction. See Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007); Prihoda v. State, 352 S.W.3d 796, 807 (Tex. App.—San Antonio 2011, pet. ref'd). The purpose of such a stipulation is to relieve the State of its burden with regard to this element, thereby protecting the defendant from possible prejudice associated with the State's production of evidence regarding the prior offense. See Martin v. State, 200 S.W.3d 635, 640-41 (Tex. Crim. App. 2006). In other words, if a defendant stipulates to a prior, jurisdictional conviction, he has in essence made a judicial admission, thereby removing the State's burden to prove that element of the offense. Id.
Contrary to the trial court's statement in this case, a stipulation need not be in writing. See Bryant v. State, 187 S.W.3d 397, 405 n.3 (Tex. Crim. App. 2005) (Cochran, J., concurring). However, although a stipulation does not have to be in writing, see id., and an offer to stipulate cannot be refused by the trial court, see Hernandez v. State, 109 S.W.3d 491, 495 (Tex. Crim. App. 2003), we hold the stipulation must be sufficiently specific to supply the information the State would be required to prove with regard to the prior offense. See Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. App. 2002); see also Bryant, 187 S.W.3d at 405 (Cochran, J., concurring) (stating that stipulation substitutes for evidence and is sufficient proof of facts stipulated to as long as stipulation is in official record and trial and reviewing courts may compare stipulation contents to indictment allegations). In Tamez, the court specifically held that a stipulation "to a previous conviction should suffice when it carries the same evidentiary value as the judgments of prior convictions." 11 S.W.3d at 202.
In this case, the only mention of stipulation occurred just before voir dire:
[Defense]: Well, Judge, just I'm concerned about prior criminal history and other issues. I just wanted to raise - -
The Court: Okay. Well, who are they going to? They're going to the Court. So there shouldn't be punishment issues at all.
[Defense]: There should not be . . . .
The Court: Correct. I assume this could be similar to the DWI. Does anybody - - are you going to stipulate to the priors or do you want them to put on evidence of it? I mean, has anybody approached that issue or not . . .
[Prosecution]: Your Honor. I don't have a written stipulation - -
The Court: No, I'm - - I mean, I'm not suggesting that ya'll do it. He was talking about priors and we all admit that there's going to have to be - - priors established as a predicate. And I don't know if any Court's ruled on it, but it seems like you could treat it as we do the DWIs.
[Defense]: And, Judge, I think there's actually two prior assaults - -
[Prosecution]: We've only alleged one.
[Defense]: So we'll stipulate to one and just want to make sure it's part of the limine, that they only - -
The Court: It needs to be a written stipulation, with everybody signed, so, if it's not prepared, I'm going to let them get into it on voir dire, I'm going to at least let them get into the idea that they have to prove up one prior - -
[Defense]: And, Judge, I understand that. Obviously if the Court would limit it to one, just to invoke the jurisdiction on the Court.
As previously noted, the trial court did not refuse a proffered stipulation. A fair reading of the exchange indicates the trial court was requesting more information with regard to the proposed stipulation than counsel's vague assertion that Davis would "stipulate to one." With regard to the charged offense, Davis's alleged stipulation was not sufficient to relieve the State of its burden to prove the existence of a prior assault—family violence offense; rather, the State was mandated to prove the existence of a specific prior offense, i.e., assault—family violence. Based on counsel's vague statement, we cannot discern the type of prior offense he was alluding to. As the exchange shows, Davis's counsel admitted the existence of two prior offenses. In Hollen v. State, 117 S.W.3d 798, 801-02 (Tex. Crim. App. 2003), the court held a jury should be informed of the stipulation in order to enable it to reach a verdict on the charged offense. Here, nothing was produced by Davis — orally or in writing — that would constitute a stipulation from which the jury could have been informed that Davis had previously been convicted of the specific offense of assault—family violence; conviction of some other prior offense would not be sufficient.
We refer to the decision in Zavala v. State, No. 03-05-00051-CR, 2007 WL 135979, at *1-*2 (Tex. App.—Austin Jan. 22, 2007, no pet.) (mem. op., not designated for publication). In that case, the appellant claimed that although he did not make a formal stipulation, "a fair reading of the discussions between all counsel and the trial court . . . clearly indicates the defense counsel was making a Tamez objection." Id. at *1. However, the appellant's trial counsel had merely asked the trial court to include the prior conviction in the enhancement paragraph at the punishment phase of the trial. Noting that Tamez requires a defendant to stipulate to the relevant prior conviction such that proof of the prior conviction was wholly dispensed with, the court held the appellant never entered into a stipulation. Id. at *1-*2.
Similarly, in Olivas v. State, the court of appeals held the appellant's proposed stipulation — that he had been previously convicted under Chapter 22 of the Texas Penal Code — was insufficient because it did not specifically admit his prior conviction was for assault—family violence. No. 08-11-00081-CR, 2013 WL 1182208, at *4 (Tex. App.—El Paso Mar. 20, 2013, no pet.) (not designated for publication). The court noted the purpose of the proposed stipulation was to relieve the State of its burden of providing the prior conviction as an element of the offense. Id. However, the appellant's proposed stipulation was not sufficiently specific with regard to the prior conviction necessary to prove the charged offense, and therefore, the trial court did not err by refusing to admit the proposed stipulation. Id. The State was not required to prove just any prior conviction, but had to prove the appellant had a prior conviction for assault—family violence. Id. at *5. And thus, the appellant's proposed stipulation was insufficient.
Here, Davis never entered into or offered a defined stipulation. Based on counsel's exchange with the trial court, nothing was stated that would inform the jury that Davis had previously been convicted of assault—family violence or when, which the State had to prove in order to convict him. If the State had not introduced evidence of the prior conviction, Davis might have successfully argued — given the absence of a stipulation — that the evidence was insufficient to support his conviction for the felony offense. See, e.g., Luna v. State, 402 S.W.3d 849, 851 (Tex. App.—Amarillo 2013, no pet.) (holding State failed to carry burden of proof in case-in-chief to show defendant previously convicted of assault—family violence for purposes of Penal Code section 22.01(b)(2)(A)). Accordingly, because there was no stipulation that would have relieved the State of its evidentiary burden, we hold the trial court did not err as suggested by Davis.
Charge Error — Failure to Instruct on Effect of Prior Conviction
Davis next contends the trial court "had a sua sponte duty to instruct [the] jury that [the] jurisdictional offense could not be considered as evidence of guilt." Davis did not object to the trial court's failure to include the instruction, but argues the court erred and he was egregiously harmed. Davis argues that instructing the jury that it could only consider the prior assault—family violence conviction for purposes of jurisdiction was law applicable to the case — as it was neither a defensive issue nor defensive strategy. Thus, according to Davis, even in the absence of an objection or request to instruct the jury with regard to the effect of the prior conviction, the trial court's failure must be reviewed under the standards set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787, 788 (Tex. Crim. App. 1988).
Standard of Review
"Appellate review of claims of jury-charge error involves a determination of whether the charge is erroneous and, if it is, a harm analysis." Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013); Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). We first determine whether the trial court erred in its submission of the charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 2013); Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If there is error in the charge, we then determine whether sufficient harm resulted from the error to require reversal. Wooten, 400 S.W.3d at 505.
If error exists and the appellant timely objected at trial, reversal is required if "some harm" resulted, i.e., if the error was calculated to injure the rights of the defendant. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (quoting Almanza, 686 S.W.2d at 171); see TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006). If appellant failed to object, as is the case here, error must be fundamental, and reversal will result only if the error was so egregious and created such harm that the defendant did not have a fair and impartial trial. See Marshall, 479 S.W.3d at 843; Barrios, 283 S.W.3d at 350 (quoting Almanza, 686 S.W.2d at 171).
Egregious harm is a very difficult standard to meet and requires a case-by-case analysis. Marshall, 479 S.W.3d at 843. Charge error is egregiously harmful if it affects the very basis of the case, vitally affects a defensive theory, or deprives the defendant of a valuable legal right. Id.; Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015) In determining whether alleged charge error is egregious, we must review the record and consider: (1) the jury charge as a whole; (2) the evidence, including the contested issues and the weight of the probative evidence; (3) closing arguments; and (4) other relevant information from the entire record. Marshall, 479 S.W.3d at 843; Arrington, 451 S.W.3d at 840. Neither the appellant nor the State bears any burden on appeal to show harm or lack thereof; rather, reviewing courts must examine the record and make an independent determination as to whether the appellant suffered "actual harm" as opposed to "theoretical harm" as a result of the trial court's error. Marshall, 479 S.W.3d at 843; see Arrington, 451 S.W.3d at 840.
Application
This court has held a jurisdictional prior assault—family violence conviction is an element of the offense (as opposed to an allegation for punishment enhancement) when assault—family violence is pled as a felony pursuant to section 22.01(b)(2)(A) of the Penal Code. See Reyes, 314 S.W.3d at 81. A jury charge must set forth the applicable law and set out all essential elements of the offense. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West Supp. 2015); Celis, 416 S.W.3d at 423; Martin, 200 S.W.3d at 639. This includes setting out jurisdictional elements. Martin, 200 S.W.3d at 639. Thus, in a case under section 22.01(b)(2)(A) of the Penal Code, the charge must inform the jury of the existence of the jurisdictional prior assault—family violence conviction the State relies upon for conviction. See id. The trial court's charge must also instruct the jury in some fashion that the jurisdictional prior conviction could only be used to invoke the jurisdiction of the court, not as evidence of guilt of the charged offense. See id.
Here, the trial court failed to instruct the jury that Davis's prior conviction for assault—family violence could not be considered as evidence that he assaulted Cain, but only for purposes of jurisdiction, i.e., elevating the offense from a misdemeanor to a felony. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). In Martin, the court held that when a defendant has stipulated to a jurisdictional offense, the trial court must, when instructing the jury, advise that the prior conviction may only be used to invoke the jurisdiction of the court, i.e., raise the offense from a misdemeanor to a felony, not as evidence that the defendant is guilty of the instant assault. 200 S.W.3d at 639. Here, Davis did not stipulate to the prior offense, and the State contends this renders Martin inapplicable. However, we need not decide whether the trial court's failure to instruct the jury pursuant to Martin was error. As noted, Davis failed to request such an instruction or object to the trial court's failure to include it in the charge. Accordingly, Davis is entitled to reversal only if he suffered actual, egregious harm as a result of the alleged error, which we hold he did not. See Marshall, 479 S.W.3d at 843.
As required, we make an egregious harm determination by examining the charge as a whole, the evidence, closing arguments, and other relevant information from the entire record to determine whether the error affected the very basis of the case, vitally affected a defensive theory proposed by Davis, or deprived Davis of a valuable legal right. See id. We begin with the jury charge.
1. The Jury Charge
The jury charge began by advising the jury of the offense and Davis's plea. The jurors were advised: (1) the indictment was not evidence of guilt; (2) that they were not to discuss matters not in evidence; (3) about the proper burden of proof and the presumption of innocence; (4) as to the definition of reasonable doubt; (5) of Davis's Fifth Amendment rights; (6) that they were not to use outside sources to locate additional information about the case or contact anyone about the case until the verdict was accepted; (7) that witness statements and reports are not evidence; and (8) not to let bias, prejudice, or sympathy affect the deliberations. As to the case in particular, the charge set out the elements of felony assault—family violence, followed by definitions of certain terms within the elements. Thereafter, the charge applied the stated law to the specific facts of the case, advising the jury that if it found Davis committed assault—family violence against Cain and that he had been previously convicted of assault—family violence in 2010, it should find him guilty.
It could be argued that by failing to advise jurors that the 2010 conviction could not be considered in determining whether Davis assaulted Cain, the jurors might have done so. However, the charge merely advised the jurors they had to find Davis assaulted Cain and that Davis had a prior conviction for assault—family violence in order to find Davis guilty. The charge did not suggest the prior conviction could or should be used to prove the current charge; rather, the charge required the jury to make two discrete findings in order to find Davis guilty. Thus, based on the charge, it would be speculative to suggest jurors convicted Davis of assaulting Cain because he had a previous conviction for the same offense. And, as stated in Marshall and Arrington, egregious harm cannot be based on speculation. 479 S.W.3d at 843; 451 S.W.3d at 840. Thus, we hold the charge as a whole does not weigh in favor of a finding of egregious harm.
2. The Issues and the Evidence
Considering the contested issues in this case and the weight of the evidence as to those issues, we hold they do not weigh in favor of a finding of egregious harm. Under this factor, "we look to the state of the evidence to determine whether the evidence made it more or less likely that the jury charge caused appellant actual harm." Arrington, 451 S.W.3d at 841. The only contested issues were whether Davis assaulted Cain — as opposed to her ex-boyfriend — and whether he had a prior assault conviction.
Davis points to State's Exhibit 10 — the evidence offered by the State to prove the jurisdictional prior offense, and notes it included: (1) the information and warrant for the prior offense, which states Davis allegedly struck the victim with his hand, a belt, and a can of air freshener; (2) the amount of bail; (3) Davis's plea of nolo contendere; (4) his sentence; and (5) a court docket sheet showing Davis had six additional pending cases. Moreover, the jury heard Cain's sister state, when asked why she was sure Davis assaulted Cain: "Because this ain't the first time it happened." Thus, Davis contends the jury was advised of a total of eight additional offenses beyond the one for which he was on trial.
First, as to the statement made by Cain's sister, Davis suggests the statement improperly referenced a prior assault against Cain. We address that issue in detail below, but note here that the trial court immediately instructed the jury to disregard the statement, and we presume the jury followed the court's instruction. See, e.g., Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011) (holding that law generally presumes instructions to disregard and other cautionary instructions will be obeyed by jury); Gamboa v. State, 296 S.W.3d 574 580 (Tex. Crim. App. 2009) (same) (citing Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Waldo v. State, 746 S.W.2d 750 (Tex. Crim. App. 1988); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)). Accordingly, we do not consider the statement to have made it more likely that the trial court's failure to instruct the jury on the effect of the 2010 offense caused Davis actual, egregious harm. See Arrington, 451 S.W.3d at 841.
State's Exhibit 10 provides details about the prior offense — as well as the existence of other charges that were pending in 2010, and without an instruction that such evidence should not be considered in determining whether Davis assaulted Cain, it is possible the jury took it into account. However, during trial, the State never pointed out information to jurors within the exhibit to jurors regarding the details of the prior offense or that Davis had additional pending charges. Rather, the testimony elicited with regard to State's Exhibit 10 was only that necessary to link Davis to the prior conviction. Moreover, the thrust of the evidence — both from the State and the defense — concerned challenges to the witnesses' credibility — that of Cain and her sister.
At trial, Cain denied seeing Davis on the day of the assault, and she specifically denied he was the person who assaulted her. She also denied her injuries — busted lip, bruised eyes, and bite marks — caused her any pain. Cain completed a "Non Prosecute Affidavit," which was admitted into evidence, stating she desired to "drop charges on Roger Davis," and asserting another man, Ricky Armstrong, was the perpetrator. At trial, however, she could not remember Armstrong's last name — despite claiming they had been dating at that time between two and five months. Cain also admitted that after completing the affidavit, she sent it to Davis personally. She claimed her family did not like Davis and this was why family members told police Davis attacked her. Cain averred at trial that she accused Davis because she was afraid of Armstrong and family members told police it was Davis and so she "just went along with it." In the affidavit, Cain stated she was "nervous scared and shocked." The affidavit was executed on July 15, 2015, more than nine months after the assault. At no time did Cain advise police or prosecutors that Davis was not the perpetrator, but Armstrong was.
To counter Cain's more recent claims, the State pointed to Cain's sworn, handwritten statement, which was made on the day of the assault. Although the statement, which was contained in a police report, was not admitted into evidence, Cain conceded she made the statement. She further admitted that in the statement to police she stated Davis assaulted her, biting and hitting her. Cain conceded that since the assault, she has spoken with Davis by telephone and that she has "feelings for him." In subsequent testimony, she admitted she and Davis had resumed their relationship in the past several months, and had in fact been together for three years.
The State then called Cain's sister as a witness. The sister testified that on the day of the assault, during the family gathering, she went with Cain to the store. She stated Cain was talking to Davis on her cell phone. When they returned to the apartment, the sister went inside, but Cain remained in the vehicle, talking to Davis. Later, Cain's daughter ran into the apartment saying Cain needed help. The sister went outside and saw Davis. When Davis saw her, he "hopped in his car and took off." The sister testified Davis drove off in a gray Lincoln, which she recognized as the car he normally drove. According to the sister, Cain was bleeding and crying. The sister called police. She denied seeing anyone other than Davis, including Ricky Armstrong. In fact, the sister testified Armstrong was not Cain's boyfriend, but was her ex-boyfriend, and that Cain was dating Davis at the time. The sister admitted she and Cain did not have a good relationship, having previously fought over Davis.
As its last witness, the State called San Antonio Police Officer Clifford Burns. Officer Burns testified he responded to the call about the assault on Cain. When he arrived, he saw Cain with facial swelling and bite marks on her arm. The officer testified Cain told him her boyfriend "Roger Davis" assaulted her. Officer Burns stated Cain was upset and appeared frightened of Davis. The officer testified Cain was cooperative at the scene, and he specifically denied pressuring her into making a statement.
Based on the foregoing, the evidence does not weigh in favor of a finding of egregious harm. Davis was able to present testimony from the victim that he was not the perpetrator. Davis challenged the sister's credibility given the discord between the sisters. And, although State's Exhibit 10 contained details about the prior offense and other pending 2010 charges, the State never elicited testimony regarding that information from any witnesses. Thus, we cannot say, considering the evidence as a whole, that the trial court's failure to advise the jury not to consider the prior conviction in determining whether Davis assaulted Cain affected the very basis of the case, vitally affected a defensive theory proposed by Davis, or deprived Davis of a valuable legal right. See Marshall, 479 S.W.3d at 843. We therefore cannot say this factor weighs in favor of an egregious harm finding.
3. Closing Arguments
We next consider the arguments of the parties. In doing so, we must determine whether any statements made by the State, Davis's counsel, or the trial court exacerbated or ameliorated the alleged jury charge error. See Arrington, 451 S.W.3d at 844. The record does not contain any statements by either Davis's counsel or the trial court with regard to the jurisdictional prior offense. However, during closing arguments, the State reminded the jurors it was required to prove Davis committed a prior assault—family violence. The State referred the jurors to State's Exhibit 10, stating it showed Davis had previously assaulted "another woman." The State followed this statement up by stating, "Fool me once, shame on you. Fool me twice, shame on me." Davis contends, and we agree, that this suggested to the jury that if Davis committed a prior assault against a family member or girlfriend, he probably assaulted Cain. If the trial court had instructed the jury that it could not consider the prior assault for this purpose, any possible effect of the State's argument would have been negated. But no such instruction was given.
However, this was a single, isolated reference. The thrust of the arguments from both Davis and the State, like the evidence, dealt with witness credibility. Davis argued Cain's sister lacked credibility based on her dispute with Cain over Davis and the sisters' troubled relationship. The State, on the other hand, argued Cain's trial testimony lacked credibility, pointing out that Cain seemed to still love Davis and continued a relationship with him. The State's "fool me once" statement was a single reference in an argument devoted to the issue of Cain's lack of credibility and the reasons she had to deny the original allegation long after the fact. Accordingly, although we hold that the State's reference in its closing argument weighs in favor of a finding of egregious harm, we hold it does so only slightly when considered in the context of the entire closing argument.
4. Other Relevant Information
Finally, we look to other relevant information in the record. During voir dire, the trial court advised the potential jurors that "normally an assault of a family member would be a misdemeanor offense, unless [the defendant] had previously been accused and convicted of an assault involving a family member or someone with a dating relationship." The trial court explained that if a prior assault—family violence offense is proved by the State, the offense would be a felony. The State also acknowledged that it had to prove Davis was previously convicted of assault—family violence. No other references were made to a prior conviction or its use. Thus, this portion of the record weighs neither for nor against a finding of egregious harm.
In sum, the only factor that might weigh in favor of a finding of egregious harm is the State's single statement in closing argument. We cannot say this single statement, or anything else that occurred during the trial, affected the very basis of the case, vitally affected a defensive theory put forth by Davis, or deprived Davis of some valuable legal right. See Marshall, 479 S.W.3d at 843; Arrington, 451 S.W.3d at 840. Having examined the record, we independently determine that any harm suffered by Davis based on the trial court's failure to advise the jury not to consider the prior 2010 offense in determining whether Davis assaulted Cain did not rise to the level of egregious harm. Id. Rather, any harm suffered was theoretical as opposed to actual. Id. Accordingly, even if the trial court erred in failing to sua sponte instruct the jury as to the proper consideration of the jurisdictional prior offense, we hold such error does not entitle Davis to a reversal.
Motion for Mistrial — Testimony of Extraneous Offense
In his next appellate issue, Davis contends the trial court erred in refusing to grant his request for a mistrial. Davis argues his motion in limine was violated when a State's witness, the victim's sister, testified about a prior extraneous offense — an offense other than the one the State intended to prove for jurisdictional purposes. According to Davis, the admission of this testimony, which was the subject of his motion in limine, led to the admission of an extraneous offense in violation of Rule 404(b) of the Rules of Evidence and that its admission was harmful, affecting his substantial rights. See TEX. R. EVID. 404(b); TEX. R. APP. P. 44.2(b).
Standard of Review
A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard and the ruling must be upheld unless it is outside the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010); Gamboa, 296 S.W.3d at 580. Because a mistrial is a drastic remedy, it is only required when an "error is so prejudicial that expenditure of further time and expense would be wasteful and futile." Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). The denial of a motion for mistrial is an abuse of discretion only when no reasonable review of the record could support the trial court's ruling. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
Application
To preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). Accordingly, a motion for mistrial must be timely. Griggs, 213 S.W.3d at 927. "A motion for mistrial is timely only if it is made as soon as the grounds for it become apparent." Id.; see Sanchez v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort Worth 2013, pet. ref'd).
Here, Cain's sister testified she was in the apartment on the day of the assault, rushing to her sister's aid when alerted by her niece. The sister stated she saw Davis outside of the apartment at the time of the assault. When asked by the State why she believed Davis attacked her sister, she replied, "Because this ain't the first time it happened." Davis objected, but almost immediately withdrew his objection. However, when the trial court asked if he was "sure" he wanted to withdraw the objection, Davis asked the court "to instruct the jury, based on the motion made, to disregard her testimony concerning — ." It appears Davis was referencing his pretrial motion in limine, which sought trial court intervention before the mention of any prior convictions or other alleged legal violations. Davis believed the sister's statement referenced conduct that was the subject of the motion in limine. Immediately thereafter, the trial court instructed the jurors to disregard the sister's statement. Davis did not request a mistrial at that time, but waited until the State asked the witness several more questions. Davis then asked to approach the bench "based upon my previous objection." Only then did he move for a mistrial. By this time, the State had moved onto the 911 call, and the trial court asked if Davis objected to the admission of the call. When Davis said he did not, the trial court advised the motion for mistrial would be taken up "in a second." The trial court subsequently denied the motion.
The record establishes Davis recognized the grounds for objection and mistrial as soon as the witness made her statement. However, he did not move for a mistrial immediately after the trial court instructed the jury to disregard the witness's statement; rather, Davis waited until after the State had moved onto questions involving the 911 call. Under these circumstances, given the lapse of time between the witness's statement and Davis's motion, we hold Davis failed to preserve his mistrial complaint by failing to make a timely request. See id.; see also Navarrette v. State, No. 11-11-00331-CR, 2014 WL 708495, at *3 (Tex. App.—Eastland 2014, pet. denied) (mem. op., not designated for publication), cert. denied, 135 S. Ct. 965 (2015) (holding defendant waived error where he failed to immediately move for mistrial after trial court instructed jury to disregard objectionable testimony).
However, even if we assume Davis preserved error, we would hold the trial court did not err in denying the motion for mistrial. When the trial court instructs the jury to disregard testimony, but thereafter denies a motion for a mistrial, the issue is whether the trial court abused its discretion in denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Austin v. State, 222 S.W.3d 801, 815 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). The factors a reviewing court considers in determining whether the trial court abused its discretion in denying a mistrial are: (1) the prejudicial effect, (2) the curative measures taken, and (3) the certainty of conviction absent the admission of the evidence. Austin, 222 S.W.3d at 815 (citing Hawkins, 135 S.W.3d at 77); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). In most cases, any harm emanating from prejudicial testimony — inadvertent or deliberate — can be cured by an instruction to disregard, even if the testimony given was in violation of a motion in limine. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999); Austin, 222 S.W.3d at 815 (citing Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)); Herrero v. State, 124 S.W.3d 827, 836 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Considering the foregoing factors, we cannot say the trial court abused its discretion in denying the motion for mistrial. Any prejudicial effect from the sister's single statement that "this ain't the first time it happened" was brief and nonspecific; the testimony was interrupted before she could embellish or elaborate. The trial court's instruction to disregard was given immediately after the sister's single statement and was the proper curative measure in this instance. See Wesbrook v. State, 29 S.W.3d 103, 115-16 (Tex. Crim. App. 2000). Curative instructions are generally sufficient to cure improprieties that occur during trial. Gamboa, 296 S.W.3d at 580. And, the Texas Court of Criminal Appeals has long held the law generally presumes instructions to disregard and other cautionary instructions will be obeyed by the jury. See, e.g., Archie, 340 S.W.3d at 741; Gamboa, 296 S.W.3d at 580. Finally, the evidence shows Cain told officers immediately after the event that Davis attacked her. She thereafter memorialized her oral statement in writing later that day. Cain's sister testified she saw Davis leaving in a vehicle immediately after the attack. And the jury saw photographs of Cain's injuries. Thus, the likelihood of conviction absent the sister's single statement was high. Accordingly, the trial court did not abuse its discretion in denying Davis's motion for mistrial even if error was preserved. We overrule this issue.
Admission of State's Exhibit 10 — Failure to Redact
Davis contends the trial court erred in admitting into evidence State's Exhibit 10 without first requiring the State to redact the name of the victim, J.G. The exhibit in question is the judgment and attendant documents from a prior assault—family violence conviction. The State sought to admit the exhibit to prove the jurisdictional element of the offense with which Davis was charged. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A); Reyes, 314 S.W.3d at 81. Davis reasons the testimony by Cain's sister — that Davis's assault on Cain was not "the first time it happened" — suggested to the jury that Davis had previously assaulted Cain. And, thereafter, when the trial court admitted into evidence an exhibit containing the name of another woman, the jury was in essence advised that Davis had twice committed assault—family violence prior to the current offense. According to Davis, if the trial court had required the State to redact the victim's name, the jury would have assumed the judgment referenced the prior assault mentioned by Cain's sister during her testimony.
Standard of Review
We review a trial court's admission of evidence for an abuse of discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Brown v. State, 468 S.W.3d 158, 170 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd), cert denied, 136 S. Ct. 2393 (2016). A trial court abuses its discretion if its decision is so clearly wrong as to lie outside the zone of reasonable disagreement. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Lopez v. State, 314 S.W.3d 54, 61 (Tex. App.—San Antonio 2010, pet. ref'd). We must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Brown, 468 S.W.3d at 170.
Application
Davis's argument requires two assumptions. One, that the jury ignored the trial court's instruction to disregard the sister's statement, and two, that the sister's statement was a reference to a prior assault against Cain as opposed to someone else. First, as stated above, the jury in this case is presumed to have followed the trial court's curative instruction to disregard the sister's statement. See, e.g., Archie, 340 S.W.3d at 741; Gamboa, 296 S.W.3d at 580. Nothing in the record suggests the jury failed to follow the trial court's instruction to disregard. Thus, if the jury disregarded the statement, as we presume it did, there was before the jury a single prior assault—family violence — the one represented by State's Exhibit 10. Moreover, as to the second assumption, given the absence of evidence to the contrary, it is equally likely Cain's sister was referring to Davis's prior assault on J.G.
Accordingly, we cannot agree the failure to redact J.G.'s name from State's Exhibit 10 placed two prior assault—family violence convictions before the jury. Accordingly, we hold the trial court did not abuse its discretion in admitting State's Exhibit 10 without requiring the redaction of the victim's name. See Oprean, 201 S.W.3d at 726; Brown v. State, 468 S.W.3d at 170. We therefore overrule this issue.
Legal Sufficiency — Linking Davis to Jurisdictional Prior Conviction
Davis contends the evidence is legally insufficient to support his conviction for felony assault—family violence because the State failed to prove the jurisdictional offense. Specifically, Davis argues the State's evidence is legally insufficient to link him to the prior conviction. The State responds, arguing the evidence is sufficient. We agree with the State.
Standard of Review
When an appellate court reviews a challenge to the sufficiency of the evidence in a criminal appeal, we apply the legal sufficiency standard set out in Jackson v. Virginia. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Mayberry v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref'd). Under this standard, we must consider all of the evidence in the light most favorable to the verdict and determine whether a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. See Brooks, 323 S.W.3d at 899; Mayberry, 351 S.W.3d at 509. We may not sit as the "thirteenth juror" and must defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Brooks, 323 S.W.3d at 899; Mayberry, 351 S.W.3d at 509. The standard requires us to resolve any inconsistencies in the testimony in favor of the verdict. Gonzales v. State, 330 S.W.3d 691, 694 (Tex. App.—San Antonio 2010, no pet.). Accordingly, in analyzing a legal sufficiency challenge, we will determine whether the necessary inferences are reasonable based on the combined force of the evidence, direct and circumstantial, when viewed in the light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Mayberry, 351 S.W.3d at 509; see Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (holding standard of review is same for both direct and circumstantial cases).
Application
The State alleged Davis committed the felony offense of assault—family violence. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). As set out above, to prove the allegation as set out in the indictment, the State had to prove beyond a reasonable doubt that Davis: (1) intentionally, knowingly, or recklessly, (2) caused bodily harm to Cain, with whom he had a dating relationship, and (3) had previously been convicted of assault—family violence. See id. To establish Davis had been convicted of a prior assault—family violence offense, the State had to prove beyond a reasonable doubt (1) a prior assault—family violence conviction existed, and (2) a link between Davis and that prior conviction. See Flowers, 220 S.W.3d at 921; Prihoda, 352 S.W.3d at 807. No specific document or mode of proof is required to prove these two elements. See Flowers, 220 S.W.3d at 921; Prihoda, 352 S.W.3d at 807. The State may prove these elements in a number of ways, including: (1) admission of a defendant's stipulation to the prior offense; (2) testimony by a person who was present when the person was convicted of the specified crime and can identify the defendant as that person; or (3) documentary proof, e.g., a judgment, that contains sufficient information to establish both the existence of a prior conviction and the defendant's identity as the person convicted. Flowers, 220 S.W.3d at 922.
Davis does not challenge the existence of a prior assault—family violence conviction. Rather, he contends the State failed to link him to that prior conviction, i.e., the State failed to show by independent evidence that he was the person convicted of the prior offense. To establish the existence of the prior conviction and link Davis to it, the State introduced, and the trial court admitted, State's Exhibit 10, which included numerous documents relating to the prior conviction of "Roger Trudell Davis" for the offense of "assault bodily injury—married." The documents include:
No one contests that "assault bodily injury—married" is an offense that will elevate a subsequent charge for assault—family violence to a felony.
1. A county court docket sheet setting forth: the name of the defendant — Roger Trudell Davis, the defendant's birthdate of April 26, 1982, the trial court cause number — 266658, Davis's SID number — 0905762, and handwritten notes stating that on March 17, 2010, Davis pled no contest to assault bodily injury—married, and was sentenced to 365 days in the Bexar County Jail and assessed a fine of $1,500;The State called Detective Kenneth Cruz to link Davis to the prior judgment of conviction and other supporting documents within State's Exhibit 10. Detective Cruz testified a SID number is a number used to identify a person in the county jail system. He stated it is a unique identifying number and no two individuals can have the same SID number. The documents show the individual convicted in 2010 for assault bodily injury—married and the person identified in the 2014 Charge and Disposition report are one in the same — Roger Trudell Davis with SID number 0905782 and a birthdate of April 26, 1982. In other words, the evidence shows the SID number and birthdate of the Roger Trudell Davis convicted of assault bodily injury—married in 2010 is the same as the Roger Trudell Davis arrested for committing assault—family violence against Cain. Although two individuals may share a name and date of birth, Detective Cruz's unrebutted testimony establishes two individuals may not share a SID number — SID numbers are unique to each individual. Detective Cruz's testimony establishes the SID number for the Roger Trudell Davis referenced in the various documents in State's Exhibit 10 was the same as the SID number for the Roger Trudell currently on trial. Thus, because the SID numbers match — and the undisputed testimony is that no two individuals can have the same SID number, the jury could have determined beyond a reasonable doubt that the Roger Trudell Davis on trial for assault—family violence against Cain was the same Roger Trudell Davis convicted of assault—family violence in 2010. See Brooks, 323 S.W.3d at 899; Mayberry, 351 S.W.3d at 509. As we stated in Prihoda:
2. A certified copy of a judgment of conviction for assault bodily injury—married in cause number 266658 against Roger Trudell Davis based on a plea of "nolo contendere," sentencing him to one year in the Bexar County Jail and assessing a fine of $1,500.00 on March 17, 2010.
3. A Surety Bail Bond for Roger Trudell Davis, case number 266658, based on the charge of assault bodily injury—married, describing Davis as a black male born April 26, 1982;
4. An information in the name of Roger Trudell Davis, SID number 905782, cause number 266658, charging Davis with assault bodily injury—married; and
5. A San Antonio Police Department "Charge and Disposition Report" filed in 2014, naming the defendant as Roger Trudell Davis, listing a birthdate of April 26, 1982, SID number 0905782, and describing the offense as assault—family violence against Cain.
In general, "the proof that is adduced to establish that the defendant on trial is one and the same person that is named in an alleged prior criminal conviction or convictions closely resembles a jigsaw puzzle." (citations omitted) "The pieces standing alone usually have little meaning." (citations omitted) "However, when the pieces are fitted together, they usually form the picture of the person who committed that alleged prior conviction or convictions." (citations omitted) The trier of fact is required to fit the pieces of the jigsaw puzzle together and weigh the credibility of each piece. (citations omitted) "Regardless of the type of evidentiary puzzle pieces the State offers to establish the existence of a prior conviction and its
link to a specific defendant, the trier of fact determines if these pieces fit together sufficiently to complete the puzzle." (citations omitted) If the existence of the conviction and its link to the defendant can be found beyond a reasonable doubt, "then the various pieces used to complete the puzzle are necessarily legally sufficient to prove a prior conviction." (citations omitted)352 S.W.3d at 807. Considering the documentary and testimonial evidence in the proper light, we hold the evidence is sufficient to link Davis to the prior conviction.
Ineffective Assistance of Counsel
In his final point of error, Davis claims his conviction should be reversed because his trial counsel was ineffective. Specifically, he contends his trial counsel was ineffective in: (1) failing to object to the trial court's refusal to accept his stipulation to the jurisdictional prior conviction; (2) failing to object to State's Exhibit 10 based on the prior offer to stipulate and that the exhibit contained information in violation of Rules 403 and 404(b) of the Texas Rules of Evidence; (3) failing to request an instruction advising the jury that the prior offense could not be considered as evidence that Davis assaulted Cain; (4) failing to object to the State's closing argument inviting the jury to consider the prior offense as evidence that Davis assaulted Cain; (5) failing to object to the State's closing argument misstating the burden of proof; (6) failing to object to the State's closing argument that misstated the victim's testimony; (7) failing to object to Detective Cruz's testimony wherein the detective testified there was no reason to believe anyone other than Davis committed the assault; (8) failing to object to Detective Cruz's testimony regarding Davis's SID number because this testimony advised jurors Davis had previously been incarcerated in the Bexar County Jail; and (9) failing to properly state the evidence in his closing argument by stating Cain's sister testified she saw Davis assault Cain. The State responds, arguing that Davis's allegations of ineffective assistance are neither firmly founded in the record nor is there a reasonable probability that but for counsel's deficient performance, Davis would not have been convicted. We hold in each instance Davis either failed to prove deficient performance or failed to prove the result of the proceeding would have been different but for trial counsel's deficient performance.
Standard of Review
An accused has a constitutional and statutory right to counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2015). This right includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). However, a defendant is not entitled to "errorless counsel, but rather to objectively reasonable representation." Lopez, 343 S.W.3d at 142.
To prevail on a claim that trial counsel was ineffective, an appellant must prove: (1) trial counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92; Villa v. State, 417 S.W.3d 455, 462-63 (Tex. Crim. App. 2013); Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). The appellant must prove his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
As to the first prong, judicial scrutiny of trial counsel's performance is highly deferential, and reviewing courts engage in a strong presumption that trial counsel's conduct fell within a wide range of reasonable representation. Villa, 417 S.W.3d at 463; Lopez, 343 S.W.3d at 142. In other words, we presume trial counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Thus, to find trial counsel was ineffective, counsel's alleged deficiencies "must be affirmatively demonstrated in the trial record." Villa, 417 S.W.3d at 463; see Lopez, 343 S.W.3d at 142. Reviewing courts "must not engage in retrospective speculation." Lopez, 343 S.W.3d at 142. It is not enough for the appellant that trial counsel's actions or omissions were "of questionable competence." Id.
As to the second prong, a defendant is prejudiced by trial counsel's deficient performance if there is a reasonable probability that but for counsel's deficient performance, the outcome would have been different. Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App. 2013); Lopez, 343 S.W.3d at 142. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Nava, 415 S.W.3d at 308; Lopez, 343 S.W.3d at 142.
When, as here, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In fact, when direct evidence is not available to establish deficient performance, the reviewing court assumes counsel had a strategy "if any reasonably sound strategic motivation can be imagined." Id.; see Villa, 417 S.W.3d at 463. "If trial counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find him to be deficient unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Nava, 417 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593).
The Texas Court of Criminal Appeals has repeatedly stated that ineffective assistance of counsel claims are generally not successful on direct appeal and are more appropriately urged in a writ of habeas corpus proceeding. Id. The court's repeated reference is based on the fact that on direct appeal, the record is usually inadequately developed to reflect trial counsel's failings and for the court to fairly evaluate the merits of such serious allegations. Id. It should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel's trial strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005).
Application
We begin our analysis by noting there was no motion for new trial challenging trial counsel's effectiveness at trial. We are, therefore, faced with a record that is silent as to trial counsel's possible reasons or strategy for the complained of acts and omissions. Thus, only if we determine the acts or omissions "'so outrageous that no competent attorney would have engaged'" in them can we find counsel's performance deficient. Nava, 417 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593). If we can conceive of "any reasonably sound strategic motivation," we must presume counsel was competent. See Bone, 77 S.W.3d at 833; Villa, 417 S.W.3d at 463.
Several of Davis's complaints regarding trial counsel's performance involve his jurisdictional prior offense. He argues that by failing to (1) object to the trial court's refusal to accept his proffered stipulation, (2) object to State's Exhibit 10, (3) request an instruction limiting the jury's consideration of the prior offense, and (4) object to the State's invitation in closing argument to consider the prior offense as evidence of guilt of the charged assault, counsel rendered ineffective assistance. Davis contends these omissions — even though counsel's strategy is absent from the record — entitled him to relief because they were so outrageous no competent attorney would have engaged in them. First, we have already determined the trial court did not refuse to accept the stipulation; rather, Davis failed to present a proper stipulation. However, even if we were to consider Davis's complaint as one that trial counsel was deficient for failing to present a proper stipulation, we cannot say, based on this record that his performance was deficient.
Although other attorneys might determine stipulating to a jurisdictional prior offense is the proper strategy so that jurors are not presented with evidence of the prior offense, counsel might have ultimately determined in this case a stipulation was not the proper course of conduct. See Ex parte Walker, 425 S.W.3d 267, 268 (Tex. Crim. App. 2014) ("Although the defensive course chosen by counsel was risky, and perhaps highly undesirable to most criminal defense attorneys, we cannot say that no reasonable trial attorney would pursue such a strategy under the facts of this case."). In this case, the State was unable to link Davis to the prior judgment through a fingerprint sample or through testimony by a person who was present when Davis was convicted of the prior offense and could identify him as the person convicted. See Flowers, 220 S.W.3d at 922. Rather, the State had to rely, essentially, on testimony that the Roger Trudell Davis convicted of assault—family violence in 2010 and the Roger Trudell Davis on trial shared the same unique SID number. Davis's trial counsel might have reasoned the jury would not find this persuasive, i.e., that the State would be unable to prove the prior conviction beyond a reasonable doubt — which, in fact, is an issue raised by Davis on appeal. Moreover, counsel might have determined that it would be better to allow the State to introduce the packet of documents relating to the prior offense as opposed to having the State admit the stipulation it into evidence, and discuss it in voir dire, opening statements, and closing argument. See Hollen, 117 S.W.3d at 802 (holding that because stipulation is form of evidence, stipulation may be admitted into evidence and is legitimate subject of voir dire, opening statement, and closing argument). He could have believed the documents would have less impact on the jury. Accordingly, we cannot say counsel's failure to offer a proper stipulation was "'so outrageous that no competent attorney would have engaged'" in it. See Nava, 417 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593).
As to the other issues regarding the prior offense — failing to object to State's Exhibit 10, failing to request an instruction and failing to object to the State's argument, we likewise see a potential strategy in the alleged omissions. Counsel might have determined it was best to minimize any attention that might be drawn to the prior offense and the evidence relating to it, specifically State's Exhibit 10. See Bollinger v. State, 224 S.W.3d 768, 781 (Tex. App.—Eastland 2007, pet. ref'd) ("Counsel can be concerned that too many objections will alienate a jury or that an objection might draw unwanted attention to a particular issue."); see also West v. State, 474 S.W.3d 785, 792 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding that trial counsel's failure to object to mention of defendant's tattoo might have been strategic omission to avoid drawing unwanted attention). Moreover, although counsel failed to lodge a specific objection to the exhibit based on Rule 404(b) of the Texas Rules of Evidence, contrary to Davis's contention, trial counsel objected to the exhibit based on "its prejudicial nature to my client" — in essence an objection under Rule 403 of the Texas Rules of Evidence. The objection was overruled.
As to the failures to request that jurors be instructed not to consider the jurisdictional prior offense as evidence of guilt and object to the State's argument, counsel might have likewise reasoned that an instruction and objection would merely draw further attention to the prior offense. The jury was already advised that it had to find beyond a reasonable doubt that Davis committed the prior offense. Additional instructions would have only highlighted the prior offense, as would a specific objection to the State's argument. As the court stated in Delgado v. State, "a party might well intentionally forego a limiting instruction as part of its "deliberate ... trial strategy to minimize the jury's recollection of the unfavorable evidence." 235 S.W.3d 244, 250 (Tex. Crim. App. 2007). Based on the record before us, we hold Davis has failed to prove by a preponderance of the evidence that the alleged deficiencies relating to State's Exhibit 10, the absent jury instruction, and the State's argument were not the result of strategy, but were omissions so outrageous that no competent attorney would have failed to act. See Nava, 417 S.W.3d at 308; Menefield, 363 S.W.3d at 593.
In three additional allegations, Davis contends counsel's performance was deficient during closing arguments. He contends trial counsel should have objected to the State's erroneous statement regarding the burden of proof and its misrepresentation of certain testimony. Davis further contends trial counsel provided inadequate representation when he himself misstated testimony by Cain's sister.
Regarding trial counsel's failure to object to portions of the State's argument, Davis first complains that his counsel should have objected when the prosecutor made the following statement:
A lot of times with juries, I talk to them afterwards and they say, "I thought he was guilty, but we wanted more evidence." If you think he's guilty, we've done our job. We've proven our case. Okay?Davis contends this statement improperly defined "beyond a reasonable doubt" as "thinking a person was guilty." It is axiomatic that a prosecutor may not misstate the applicable law in closing argument. Abbott v. State, 196 S.W.3d 334, 343 (Tex. App.—Waco 2006, pet. ref'd). Assuming without deciding that the statement was in fact an attempt to improperly define the burden of proof, we hold the failure to object did not prejudice Davis or permit the jury to find him guilty if the State failed to meet the proper burden of proof. First, during voir dire, the trial court advised the potential jurors that although the court could not define for them what constituted proof beyond a reasonable doubt, it could explain what it was not. The court went on to define preponderance of the evidence — barely more than fifty percent — and clear and convincing evidence — sufficient to clearly convince one of a particular fact. The trial court then explained that "beyond a reasonable doubt" was something more than the clear and convincing standard. In essence, jurors were advised the State had the burden to do more than clearly convince them of Davis's guilt.
Moreover, before the parties argued, the jury was instructed that:
The prosecution has the burden of proving the Defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt; and if it fails to do so, you must acquit the Defendant. It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt."Thus, jurors were specifically told they had to find Davis guilty beyond a reasonable doubt. This instruction, coupled with the trial court's explanation of the burden during voir dire was sufficient to overcome any potential misunderstanding based on the complained of portion of the State's argument. Because the jury was advised of the correct burden of proof during voir dire and in the jury charge, we cannot say that the jury placed undue weight on one alleged misstatement of the law. Moreover, the State's argument could be interpreted as one asking the jury not to hold the State to a higher burden of proof — requiring the State to produce additional evidence in order to prove the defendant guilty beyond all doubt.
Given the trial court's explanation of the State's burden during voir dire and in the charge, we hold Davis failed to prove by a preponderance of the evidence that the failure to object to this portion of the State's argument either prejudiced him or permitted the jury to find him guilty if the State failed to meet the proper burden of proof. See Nava, 415 S.W.3d at 308; Lopez, 343 S.W.3d at 142. There is no proof the alleged error in failing to object was so serious as to deprive Davis of a fair trial. See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
Davis next complains about counsel's failures to object to another portion of the State's argument — specifically, the State's alleged misstatement of a portion of Cain's testimony, and trial counsel's own misstatement of the sister's testimony. During trial, Cain testified, in essence, that her family forced her to go to the police station and give a statement against Davis. When questioning Cain, the State attempted to refute this claim by pointing out the physical limitations of Cain's mother, thereby suggesting they did not have the ability to physically force Cain to go to the police station. Although Cain admitted her mother was in poor health, she denied the prosecutor's assertion that her aunt was on crutches. However, during closing argument, the State described Cain's aunt as "semi-crippled," suggesting she could not have forced Cain to go to the police station or make a statement. The prosecutor followed this up by calling Cain's claim that she was forced "a farce."
Trial counsel did not object to the State's reference to Cain's aunt. And, we agree the record does not support the statement that Cain's aunt was "semi-crippled." Cain denied the prosecutor's assertion that her aunt was on crutches. Thus, the State's argument was a misstatement of the evidence, not a reasonable deduction therefrom. See Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (holding that proper jury argument falls into four areas: summation of evidence, reasonable deductions from evidence; answer to argument of opposing counsel; and pleas for law enforcement). Arguments that reference facts not in evidence nor inferable from the evidence are improper. Id.
However, the State's reference to the aunt's alleged physical health was but a single statement in an argument that was based almost entirely on the State's contention that Cain lacked credibility at trial. The argument centered on Cain's belated retraction of her allegation against Davis, and subsequent accusation against another man. All of the prosecutor's statements in this regard — but for the single statement about Cain's aunt, of which there were many, were supported by the evidence or reasonable deductions from the evidence. See Stout v. State, 426 S.W.3d 214, 220 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding that closing arguments may include argument as to truthfulness of witness testimony as long as argument is based on evidence presented and reasonable deductions from evidence). It is possible, given the myriad of statements used by the State to contest Cain's claim that it was someone other than Davis who assaulted her, that trial counsel thought it best to ignore the single statement regarding Cain's aunt. See Bollinger, 224 S.W.3d at 781 (recognizing counsel may be concerned too many objections will alienate jury or draw unwanted attention to particular issue; decisions to object to particular jury arguments almost always involve strategic consideration). Given the absence of a record explaining counsel's actions, we cannot say, given the entirety of the State's argument, that trial counsel's failure to object to a single misstatement was so outrageous that no competent attorney would have failed to object. See Nava, 417 S.W.3d at 308; Menefield, 363 S.W.3d at 593. Moreover, Davis has failed to prove by a preponderance of the evidence that if his trial counsel had objected to the statement, the outcome of the trial would have been different. See Nava, 415 S.W.3d at 308; Lopez, 343 S.W.3d at 142.
Davis next points to his trial counsel's statement during argument that Cain's sister witnessed the assault. During his closing argument, trial counsel argued Cain's sister lacked credibility, pointing out she "never walked up" to Officer Burns at the time of the assault and said "I saw him do it." Later, he reiterated that at the time of the event, Cain's sister never gave a statement that she saw Davis assault Cain. He then said, "Now she said it." Davis contends this was a misstatement of the evidence because Cain merely testified she saw Davis driving away after the assault. We believe, given the context, that trial counsel's statement was a reasonable deduction from the sister's testimony as a whole.
At the time of the assault, Cain's sister did not provide police with a statement about having seen Davis and only Davis outside the apartment. Davis's counsel, during cross-examination, asked questions suggesting the sister's testimony about having seen Davis was subsequently fabricated because the sisters were fighting over Davis's affections. A reasonable deduction from the sister's testimony is that at the time of the assault, she did not advise police that she saw Davis and no one else; rather, this was a recent statement conceived later and asserted "now" at trial. Although somewhat inartful, we can see the reasons for counsel's statement about the sister's testimony. We therefore hold counsel's statement was not a misstatement, but a proper, if somewhat inartfully worded, deduction from the evidence. See Stout, 426 S.W.3d 214, 220. Thus, Davis failed to prove by a preponderance of the evidence his trial counsel was inadequate in this regard. See Strickland, 466 U.S. at 688-92; Villa, 417 S.W.3d at 462-63.
Finally, Davis contends his trial counsel was ineffective because he failed to object to certain portions of Detective Cruz's testimony — testimony regarding Davis's SID number — and testimony that there was no reason to believe anyone other than Davis assaulted Cain. Again, we hold the alleged ineffectiveness with regard to counsel's performance is not firmly established in the record. See Villa, 417 S.W.3d at 463; Lopez, 343 S.W.3d at 142.
During his cross-examination of Detective Cruz, Davis's trial counsel suggested the detective lacked knowledge regarding the investigation because he neither went to the scene nor questioned any witnesses. Rather, the detective relied on information provided by others in making his recommendation to prosecutors that Davis be charged with assaulting Cain. Detective Cruz admitted as much. On redirect, the State elicited testimony that it is common for detectives to rely on information provided by officers who were at the scene of the offense and questioned witnesses — either at the scene or later. The prosecutor then asked Cruz if there was any reason to believe anyone other than Davis "was at fault on this case." Detective Cruz said, "No, ma'am." Davis's counsel followed up during recross examination, again suggesting the detective lacked personal knowledge by reiterating that he never went to the scene and never talked to a witness. Rather, the detective simply received a report and forwarded the matter to the State.
We can see a possible strategy in failing to object to this question based on the detective's lack of personal knowledge. Trial counsel had just spent several minutes pointing out that the detective had not been to the scene, did not question any witnesses, and simply relied on what other officers provided to him. Counsel could have believed that an objection was unnecessary given that he had just made his point about Detective Cruz's lack of personal knowledge. See Bone, 77 S.W.3d at 833; Villa, 417 S.W.3d at 463; see also Bollinger, 224 S.W.3d at 781. Moreover, trial counsel then followed up on the complained of testimony, again pointing out Cruz's lack of personal knowledge. Accordingly, we hold that with regard to this complaint, Davis has again failed to establish counsel's deficient performance by a preponderance of the evidence. See Villa, 417 S.W.3d at 463; Lopez, 343 S.W.3d at 142.
Davis also complains about counsel's failure to object to Detective's Cruz's testimony regarding the matching SID numbers. Davis contends this evidence was inadmissible because it improperly advised the jurors that Davis had been previously incarcerated in the county jail.
As detailed above, Davis was charged with commission of felony offense of assault—family violence. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). Thus, as part of its burden, the State had to prove Davis committed a prior assault—family violence. See Flowers, 220 S.W.3d at 921; Prihoda, 352 S.W.3d at 807. To prove Davis committed the jurisdictional prior offense, the State elicited testimony from Detective Cruz about the unique nature of SID numbers, which are numbers that identify inmates in the county jail system; no two inmates have the same number. The detective testified the Roger Trudell Davis, who was convicted of a prior assault—family violence offense as shown in the documents in State's Exhibit 10, had the same SID number as the Roger Trudell Davis charged with assaulting Cain. Thus, according to the detective, Davis had been previously convicted of assault—family violence as the State alleged.
Davis does not explain why it was error to advise the jury that Davis has been in the county jail prior to the assault. From the outset, it was made clear to jurors that the State was alleging Davis had a prior conviction for assault—family violence. It is logical to presume that if one has been previously convicted of an offense, that person would have been arrested and jailed, even if just for a short period of time. It seems Davis is suggesting the jury was not entitled to know he was previously arrested, jailed, and convicted — but this is exactly what the State was required to prove to obtain a guilty verdict with regard to the current offense. We therefore hold that Davis has failed to establish his trial counsel's performance was deficient for failing to object to the detective's testimony regarding SID numbers. See Villa, 417 S.W.3d at 463; Lopez, 343 S.W.3d at 142.
CONCLUSION
Based on the foregoing analysis, we overrule Davis's appellate issues and affirm the judgment of the trial court.
Marialyn Barnard, Justice Do Not Publish