Opinion
No. 05-05-01498-CR
Opinion Filed October 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F-0548406-WL. Affirm.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
MEMORANDUM OPINION
Appellant James Anthony Warren was convicted of burglary of a habitation and sentenced to thirty-five years' confinement. In three issues, he argues (1) he received ineffective assistance of counsel because his attorney waived closing argument during the guilt/innocence phase; (2) the trial court erred in including a voluntary intoxication instruction in the charge; and (3) the jury charge improperly defined reasonable doubt, which directly violated Paulson v. State. We affirm the trial court's judgment.
Background
On January 16, 2005 at approximately 11:30 p.m., Officer Ortega responded to a suspicious-person call. The caller reported a white male knocking on doors and acting suspicious. While patrolling the area, Officer Ortega noticed a white male hiding behind a residence holding a vacuum and what appeared to be white trash bags. Officer Ortega then called for cover. While waiting for cover, she observed appellant walk behind the residence and appear on the other side of the home without the vacuum and white trash bags. Officer Ortega called appellant over to her squad car and he fully cooperated by providing identification. When asked about his presence at the residence, appellant said he was helping his aunt move. When Officer Ortega's cover officers arrived, one stayed with appellant while the other two searched the house, which was opened and unoccupied. The home clearly looked like someone had been inside searching for things, and the refrigerator door was open with food on the floor. The officers also recovered the items appellant left behind the house, which included jewelry, a wallet, and frozen food in what was actually a white pillowcase. After officers located the owner of the home, she clarified that appellant was not her nephew, nor had she given him permission to enter her residence. Appellant was then arrested. During the routine pat down, officers discovered rings in his pockets that the complainant later identified as her own. Appellant also told one of the officers, "I went in. The door was open." After a jury trial, appellant was convicted of burglary of a habitation and sentenced to thirty-five years' confinement. This appeal followed.Ineffective Assistance of Counsel
Appellant alleges that it is ineffective assistance of counsel to waive argument at the guilt/innocence phase of trial. To prevail on an ineffective assistance of counsel claim, an 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 unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Further, the record must be sufficiently developed to overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Generally, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Likewise, without evidence of the strategy concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. Thompson, 9 S.W.3d at 814; see also Rylander, 101 S.W.3d at 111 (Tex.Crim.App. 2003). As the Supreme Court of Texas stated in Andrews v. State, "we commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it." Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Further, trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex. 2002). Appellant contends that defense counsel fell below the objective standard of reasonableness when he waived closing argument. The right to effective assistance extends to closing arguments. Yarborough v. Gentry, 540 U.S. 1, 5 (U.S. 2003). Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategies at that stage. Id. at 6. Although closing arguments should "sharpen and clarify the issues for resolution by the trier of fact, . . . it might sometimes make sense to forgo closing argument altogether." Id. Here, appellant did not file a motion for new trial; therefore, the record is silent on defense counsel's possible strategies for waiving argument. Without being afforded the opportunity to explain his strategies, we refuse to denounce defense counsel as ineffective. Likewise, without such evidence, we presume sound trial strategy. Thompson, 9 S.W.3d at 814; see also Rylander, 101 S.W.3d at 111 (Tex.Crim.App. 2003). As such, appellant has failed to establish the first Strickland prong. Appellant has also failed to establish the second Strickland prong by demonstrating that counsel's deficient performance prejudiced his defense such that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88. The State presented evidence that appellant confessed to the crime and was caught by police with incriminating evidence linking him to the offense. Thus, closing argument would have had little impact on his ultimate conviction. Having failed to satisfy Strickland, we overrule appellant's first issue.Voluntary Intoxication Instruction
In his second issue, appellant contends there was no evidence of intoxication; therefore, the trial court improperly included a voluntary intoxication instruction in the charge. Appellate review of alleged error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994). Initially, we must determine whether error occurred. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32. A trial court must charge the jury fully and affirmatively on the law applicable to every issue raised by the evidence. Taylor v. State, 885 S.W.2d 154, 157 (Tex.Crim.App. 1994). If there is evidence from any source that might lead a jury to conclude that the defendant's intoxication somehow excused his actions, an instruction under Texas Penal Code section 8.04(a) is appropriate. Tex. Pen. Code Ann. § 8.04(a) (Vernon 2003); Taylor, 885 S.W.2d at 158. Here, the State mainly relies on testimony that appellant acted "oddly" because he fell asleep in the back of the squad car while the officers continued their investigation. It claims "it would be unusual for someone under suspicion of burglary who had just lied to the police to fall asleep;" therefore, it is likely that appellant was intoxicated. Officer Cooper, however, testified that ". . . there's a lot of people that I ride with where they go to sleep in the car all the time . . . they do all kinds of things." He also stated that appellant's behavior was not erratic or unusual. Further, Officer Ortega testified she did not smell any alcohol on appellant. Officer Rangel testified that appellant did not appear to be intoxicated and did not behave erratically. Based on this record, the trial court erred in instructing the jury on voluntary intoxication because the mere fact that appellant fell asleep in the squad car, without more, was not enough to lead a jury to conclude that appellant was intoxicated. Therefore, an instruction under Texas Penal Code section 8.04(a) was not appropriate. See, e.g., Rodriguez v. State, 899 S.W.2d 658, 668 (Tex.Crim.App. 1995) (holding that section 8.04 instruction was not appropriate when appellant identified no evidence in the record that would indicate he used any intoxicants prior to or during the commission of the offense).Having found error, we must now determine whether appellant suffered harm from the erroneous instruction. Because appellant did not object to the charge, we must decide whether the error was so egregious and created such harm that he did not have a fair and impartial trial-in short, that "egregious harm" occurred. Tex. Code Crim. Proc. Ann. art. 36.19; Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996); Mallard v. State, 162 S.W.3d 325, 333 (Tex.App.-Fort Worth 2005, pet. ref'd). Errors which result in egregious harm are those which affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory."Hutch, 922 S.W.2d at 171. Appellant argues that the instruction was harmful because it presumed a circumstance of appellant (intoxication) not established by the evidence. We disagree that this amounts to egregious harm. There is nothing in the record that the jury relied on the instruction to appellant's detriment. If the jury believed appellant was intoxicated, then the instruction correctly guided them to ignore intoxication. If the jury did not believe appellant was intoxicated, then the jury would simply ignore the instruction. See Zuliani v. State, 52 S.W.3d 825, 831 (Tex.App.-Austin 2001) (holding that at worst, the instruction was superfluous), rev'd on other grounds, 97 S.W.3d 589 (Tex.Crim.App. 2003). Thus, the instruction did not affect "the very basis of the case," deprive the defendant of a "valuable right," or "vitally affect a defensive theory." Hutch, 922 S.W.2d at 171. Further, based on the strength of the State's evidence regarding appellant's guilt, we cannot say error was so harmful that appellant was denied a fair and impartial trial. Tear v. State, 74 S.W.3d 555, 562 (Tex.App.-Dallas 2002, pet. ref'd). We overrule appellant's second issue.