Opinion
No. 14-04-00005-CR
Opinion Filed August 9, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause No. 951,758. Affirmed.
Panel consists of Justices ANDERSON, HUDSON, and FROST.
OPINION
Appellant, Patricia Ann Wilson, was charged by indictment with the offense of forgery of a commercial instrument, namely a check. See TEX. PEN. CODE ANN. § 32.21 (Vernon Supp. 2004-05). A jury found her guilty, and the court sentenced her to 20 months' confinement in the Texas Department of Criminal Justice, State Jail Division. In two points of error, appellant argues that (1) she received ineffective assistance of counsel, and (2) the trial court erred by instructing the jury that it could convict her under the law of parties. We affirm. The record reflects that on June 2, 2003, an unidentified person broke into Jana Livermore's vehicle and stole a purse containing Livermore's wallet, checkbook, and driver's license. Four days later, on June 6, appellant and a friend entered an H.E.B. grocery store with one of Livermore's stolen checks. In order to pay for the purchase of several items, appellant allegedly wrote the stolen check, produced Livermore's driver's license, and signed the check in Livermore's name. Meanwhile, the two women allegedly attempted to distract the cashier, Kathryn Griggs, by questioning her about a local restaurant. The women's behavior aroused the suspicions of both Griggs and the store bookkeeper, James Bonner, who then alerted the store manager, Jocelyn Budgewater. Bonner and Budgewater pursued the two women into the parking lot, where appellant was backing her vehicle out of a parking space. When Bonner approached the women about the check and suggested it was written for the wrong amount, appellant became belligerent and accused Bonner of harassing the women because they were black. Appellant then proceeded to back out of the parking space and drive away. As appellant drove off, Budgewater wrote down the vehicle's license plate number and returned inside the store to call the phone number listed on the check. Livermore answered and explained that the check, in fact, was stolen and that the purchase had not been authorized. Subsequently, Budgewater called the Bellaire Police Department, who traced the license plate number to appellant. After further investigation, Bellaire Police Detective Zell Woods created a photo array containing appellant's picture. Both Griggs and Budgewater affirmatively identified appellant as the person involved in the forgery. Accordingly, Woods secured a warrant for appellant's arrest. Upon realizing a warrant had been issued for her arrest, appellant called both Budgewater and Woods to explain that she was not the person who actually wrote the check. Instead, appellant claimed her friend was the person who had written the check and said that her friend was willing to admit doing so. Appellant agreed to meet with Woods and to bring her friend so that a formal statement could be taken regarding the incident. However, neither appellant nor her friend appeared at the scheduled meeting. Appellant was thereafter arrested and charged with the forgery. In her first point of error, appellant contends she was provided ineffective assistance of counsel. Specifically, appellant contends her trial counsel's performance was ineffective because he failed to (1) file a motion in limine or object to testimony that suggested she was on parole; (2) object to Woods' testimony that he believed appellant was less than truthful with him on the telephone; (3) object to Budgewater's hearsay testimony about what she was told regarding the forger's identity; and (4) object to extraneous offense testimony regarding a string of related forgeries in which appellant was a suspect. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. See U.S. Const. amend. VI; TEX. CONST. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two-prong test to determine whether counsel is ineffective. Id. First, appellant must demonstrate her counsel's performance was deficient and not reasonably effective. Id. at 688-92. Second, appellant must show the deficient performance prejudiced her defense. Id. at 693. Essentially, appellant must prove that her counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for her counsel's unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex.Crim.App. 1997). Judicial scrutiny of counsel's performance must be highly deferential and we are to indulge the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). We assume counsel's actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is appellant's burden to rebut this presumption, by a preponderance of the evidence, by producing evidence that illustrates why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Generally, when the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude counsel's performance was deficient. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999); Jackson, 877 S.W.2d at 771. If appellant proves her counsel's representation fell below an objective standard of reasonableness, she still must affirmatively prove prejudice as a result of those acts or omissions. See Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel's errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. See Strickland, 466 U.S. at 691. Therefore, appellant must prove that counsel's errors, judged by the totality of the representation, denied her a fair trial. See McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, her claim fails. See id. Here, an H.E.B. manager mentioned in passing on direct examination that appellant called her on the phone and relayed various matters, including that she was on parole. Appellant's counsel did not object to this testimony. Neither did counsel attempt to prevent such testimony by filing a motion in limine. The record is silent as to counsel's trial strategy in failing to object to the initial reference to parole or file a motion in limine to prevent such a reference. However, we do not regard these omissions, i.e., the failure to object or file a motion in limine, as so outrageous that no competent attorney would have engaged in similar conduct. Moreover, an appellate court is not required to speculate on the reasons behind trial counsel's actions when confronted with a silent record. Jackson, 877 S.W.2d at 771; see also Thomspon, 9 S.W.3d at 814 (holding that when the record provides no explanation as to the motivation behind trial counsel's actions, an appellate court should be hesitant to declare ineffective assistance of counsel). Thus, as to counsel's failure to make an initial objection or file a motion in limine, appellant has failed to satisfy her burden to rebut the presumption that counsel's actions were reasonably professional and motivated by sound trial strategy. However, after failing to object to the initial reference to parole or file a motion in limine, appellant's trial counsel began his cross-examination of the witness by emphasizing her statement that appellant was on parole, and then continued to question the witness about it for some time:
Q. You said that she told you she was on parole?
A. If it's not parole, then it was probation, but she told me.
Q. No, no. You didn't clarify that. You specifically said that she was on parole. My question is: Did she tell you that? That's all I want, did she tell you that?
A. Yes, she told me that.
Q. Parole?
A. I am not sure if she told me parole.
Q. The point is if you're not sure, why would you suggest something like parole if you're not really sure?
A. Because I didn't know there was much difference in parole and probation.
Q. Parole means you've been to the penitentiary and you got out. That's what that means.
A. She told me she was in jail and she got out.
Q. The penitentiary?
A. No, she didn't say penitentiary. She said —
Q. Okay. That's what it means. Parole means you've been to the penitentiary.
A. Okay.
Q. If you don't know, why would you say something like that if you're not sure?
A. Okay. Well, I withdraw that statement. She told me one of them, I'm not sure which one.
Q. I mean, you don't want me to say nothing bad about you if it's not true, would you?
A. I didn't think it was a bad statement.
Q. If I told somebody, Look — what's your name?
A. Jocelyn.
Q. Jocelyn is on parole. You don't think that's bad?
A. No. I'm not saying that that's not bad. At the time of the conversation, I didn't feel she was using it in a bad way and I didn't accept it in a bad way.
Q. So it's all right if it's not you?
A. No. If it's true, that's not bad.At a bench conference later in trial, the trial court noted appellant's counsel's references to parole during cross-examination, and trial counsel indicated that he had to ask these questions in order to clear up the fact that the witness was not sure about this statement and that appellant may have said "probation" instead of "parole." The trial court stated that appellant's counsel did not need to ask those cross-examination questions and that if counsel had objected to the single reference to parole during the witness's direct examination, the trial court would have sustained the objection. During this cross-examination, counsel himself mentioned the word "parole" six times, emphasized the witness's statement that appellant was on parole, and stated that parole means that you have been to the penitentiary. While the witness qualified her statement, stating that she was not sure if appellant said she was on parole or probation, the witness added a new statement — that appellant told her she was in jail and got out. Counsel's strategy of wanting to clear up that the witness was not sure as to whether appellant indicated she was on parole or probation was not a sound trial strategy under the circumstances of this case. Appellant's trial counsel's emphasis at the beginning of cross-examination on appellant's being in jail and either on probation or parole fell below an objective standard of reasonableness, based on prevailing professional norms. See Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). The second prong of Strickland requires the appellant to show prejudice resulting from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). To establish prejudice, appellant must prove there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. See Jackson, 973 S.W.2d at 956. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings." Id. While trial counsel's deficient performance probably harmed appellant's credibility with the jury, the jury already had heard one time on direct examination that appellant said she was on parole. Further, because appellant testified on her own behalf, the trial court allowed the State to impeach her with a 1995 conviction for burglary of a motor vehicle. On the record before us, there is not a reasonable probability that, but for counsel's deficient performance during the cross-examination of the H.E.B. manager, the result of this proceeding would have been different. See Jackson, 973 S.W.2d at 956. Accordingly, appellant's first point of error is overruled. In her second point of error, appellant complains that the trial court erred in submitting a charge to the jury on the law of parties. Specifically, she argues the State failed to introduce evidence that would entitle it to a charge on the law of parties because no evidence sufficiently proved appellant played a role in the commission of the offense. Under Texas law, "[a] person is criminally responsible for an offense committed by the conduct of another if . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." TEX. PEN. CODE ANN. § 7.02(a)(2) (Vernon 2003). In determining whether a parties charge is proper, i.e., supported by the evidence, the trial court may look to events occurring before, during, and after the commission of the offense, and may rely on appellant's actions which show an understanding and common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985)); Beier v. State, 687 S.W.2d 2, 4 (Tex.Crim.App. 1985). The fundamental test, as set forth by the Texas Court of Criminal Appeals, is as follows:
Where the evidence introduced upon the trial of the cause shows the active participation in the offense by two or more persons, the trial court should first remove from consideration the acts and conduct of the non-defendant actor. Then, if the evidence of the conduct of the defendant then on trial would be sufficient in and of itself, to sustain the conviction, no submission of the law of [parties] is required. . . .
On the other hand, if the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State's case rests upon the law of [parties] and is dependent, at least in part, upon the conduct of another. In such a case, the law of parties must be submitted and made applicable to the facts of the case.McCuin v. State, 505 S.W.2d 827, 830 (Tex.Crim.App. 1974) (emphasis added); see also Brown v. State, 716 S.W.2d 939, 944 (Tex.Crim.App. 1986) (citing the McCuin test as the proper means for determining when a case should be submitted to the jury on a law of parties theory). Here, the evidence adduced at trial raises an issue as to the active participation by appellant and her friend. Appellant claimed that her friend actually wrote the check, forged Livermore's name, and produced Livermore's driver's license. Appellant also argued that she gave Griggs, the H.E.B. cashier, money for the snack food items but said the cashier did not accept the money because she accidentally included the items on her friend's bill. Furthermore, appellant suggested at trial that she was not the person who wore the distinctive pink outfit or who spoke with Griggs in an effort allegedly to distract her. Instead, appellant claimed that it was her friend who was actually dressed in pink and who spoke with Griggs. Therefore, she argues Griggs was mistaken as to the identity of the person who actually wrote the check. Ultimately, appellant concludes that her friend was the primary actor and that appellant was not involved in, or criminally responsible for, the forgery. However, the State's theory at trial was that appellant was the primary actor. The State elicited testimony that indicated appellant was actually the person who forged the check and that appellant was the one who wore the pink outfit. The State also presented ample evidence to prove appellant was present at the scene, entered and exited the grocery store with her friend, stood in the check-out line while the check was being written, allegedly attempted to distract the cashier by conversing with her about unrelated matters, had her items purchased with the forged check, and fled the scene by driving away when store employees approached the two women about the check. These are all circumstances that may be used to prove appellant was a party to the forgery. See Ransom, 920 S.W.2d at 302 (explaining that party status may be proved by circumstantial evidence); see also Morrison v. State, 608 S.W.2d 233, 234 (Tex.Crim.App. 1980). At a minimum, these circumstances support the trial court's decision to include a jury instruction on the law of parties. See Goff v. State, 931 S.W.2d 537, 545 (Tex.Crim.App. 1996) (upholding a law-of-parties instruction even though the defendant's theory that he was not the primary actor was best supported by the evidence). Because the evidence sufficiently raised an issue regarding appellant's role in the offense, the State was entitled to submit — and the trial court did not err in providing — a jury instruction on the law of parties. Accordingly, we overrule appellant's second point of error. The judgment of the trial court is affirmed.
Specifically, appellant purchased three H.E.B. gift cards for $100 each and some snack food and also wrote the check for $25 over the total bill to receive cash back. Therefore, the check was written for a total of $326.89.
Based on testimony presented at trial, it appears Livermore's photograph was replaced with appellant's photograph on the license.
Allegedly, the two women were quite distracting in other regards as well. Appellant supposedly wore a "loud," distinctive pink outfit and a hat and her friend donned a memorable white outfit and hat. Also, the two women stood at the end of the check-out "belt" for some time before proceeding with their purchase — conduct Griggs found unusual.
While mere presence at the scene of the offense does not establish guilt as a party to the offense, it is a circumstance that can be taken into account in ascertaining whether a charge on the law of parties is warranted. Keller v. State, 606 S.W.2d 931, 933 (Tex.Crim.App. 1980); see also Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App. 1979).
Evidence of flight from the scene of the offense is a circumstance from which an inference of guilt may be drawn. Valdez, 623 S.W.2d at 321.