No. 04-03-00532-CR
Delivered and Filed: June 1, 2005. DO NOT PUBLISH.
Appeal from the 1st Judicial District Court, Jasper County, Texas, Trial Court No. 9041-JD, Honorable Joe Ned Dean, Judge Presiding. Affirmed.
Senior judge, sitting by assignment. The Honorable Joe Bob Golden, presiding judge of the 1st Judicial District Court, Jasper County, Texas, heard and ruled on the motion to suppress.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
Opinion by: SARAH B. DUNCAN, Justice.
Wilbert Ray Adams was indicted for the offense of engaging in organized criminal activity. After both sides rested, the trial court granted a directed verdict on the organized criminal activity charge and directed the jury to "consider the lesser included offense of forgery." The jury found Adams guilty of forgery and assessed punishment at twenty years' confinement. Adams appeals. We affirm the trial court's judgment.
Motion to Suppress
In his first issue, Adams argues the trial court erred in denying his motion to suppress. Adams contends his statement, taken while he was in custody on an unrelated charge, was involuntary because he gave the statement based upon a promise made to him by a detective. A statement is inadmissible if it was induced by the promise of some benefit to the defendant. Creager v. State, 952 S.W.2d 852, 856 (Tex.Crim.App. 1997). But the promise must be positive and unequivocal, made or sanctioned by a person in authority, and of such character as would likely influence the defendant to speak untruthfully. Id.; Washington v. State, 582 S.W.2d 122, 124 (Tex.Crim.App. 1979). General statements regarding how a confession can sometimes result in leniency do not render a confession involuntary. See Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.), cert. denied, 510 U.S. 837 (1993). Officer Rich Ford testified that, while he was investigating the forgery of checks written on the account of Robert Frazier in Jasper County, the Newton County Sheriff called to tell him that Adams "wanted to talk to somebody." Ford went to the Newton County courthouse and spoke to Adams while the two sat in the hallway. Although Adams was in custody, he was not restrained, and no one other than Ford and Adams was present when Adams gave his statement. At the suppression hearing, Adams testified Ford said he could not promise him leniency, but Ford did promise "that any sentence [Adams] received in Jasper for giving these Frazier checks would not exceed the punishment in Newton County on the checks for which [Adams] was under arrest for at that time." Adams said he would not have given his statement to Ford if Ford had not made any promises. Ford testified that when Adams asked him "what was going to happen," he told Adams "if he wanted to get his business straight that the D.A.'s office would probably take it into consideration." Ford denied telling Adams he would not be indicted or prosecuted in exchange for his statement. As there was conflicting evidence before the trial court regarding whether Ford promised leniency, the trial court's conclusion that the confession was voluntary will not be disturbed on appeal. Garza v. State, 915 S.W.2d 204, 214 (Tex.App.-Corpus Christi 1996, pet. ref'd). Sufficiency of the Evidence
Adams argues there is no evidence linking him to the check he was alleged to have forged and no evidence to support a finding that he altered, made, completed, executed, or authenticated the check. In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). The evidence is legally insufficient only if a rational jury could not have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wesbrook, 29 S.W.3d at 111. The jury, as the trier of fact, is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.), cert. denied, 528 U.S. 1026 (1999). Because it is the province of the jury to determine the facts, any inconsistencies in the testimony should be resolved in favor of the jury's verdict. Id.; Johnson v. State, 815 S.W.2d 707, 712 (Tex.Crim.App. 1991). Here, the jury charge tracked Penal Code section 32.21 and thus instructed the jury that "a person commits the offense of forgery if he forges a writing with intent to defraud or harm another. Forgery is committed by altering, making, completing, executing, or authenticating any writing so that it purports to be the act of another who did not authorize the act." See Tex. Pen. Code Ann. § 32.21(a)(1)(A)(i), (b) (Vernon Supp. 2004). The jury was also instructed that it could find Adams guilty of forgery either personally or as a party. Officer Ford described for the jury the circumstances of his and Adams's conversation in which Ford obtained Adams's written statement. In Adams's statement, which was read to the jury, Adams admitted that he, Thomas Clifton, Shannon Johnson, and Floyd Green had "been passing checks" on three accounts, including that of the complainant Robert Frazier. Adams admitted he and Johnson obtained Frazier's checks from another individual. Adams said that when they first received the checks from this individual, they did not need to forge a signature because the checks were already signed. Adams admitted he was present when all the Frazier checks were passed. Johnson testified that he had nothing to do with any of the Frazier checks, although he admitted to passing a check on the account of James Franklin. Johnson said Adams told him about the Frazier checks and that Adams had cashed checks on Frazier's account. Johnson testified that Adams told him he "got some checks off of Robert Frazier and that he had cashed a few. And he throwed [sic] them in the woods, because he didn't want his girlfriend to find them because he was staying with her at Village Walk Apartments." Mack Hadnot testified that one day Adams asked him for a ride to a store. Once at the store, Adams gave Hadnot a check to cash. Hadnot testified that the check was already signed when Adams gave it to him, but he could not remember to whom the check was made. Hadnot said he cashed the check because he had identification, and Adams did not. Hadnot denied knowing the checks were stolen. Hadnot was able to cash the check at the store and spent the money buying beer and cigarettes. Hadnot said he and Adams attempted to cash a check at a second store but were unable to do so after the store determined the check was stolen. It was while at this store that Hadnot realized the check belonged to Frazier's account; and he got mad when he realized the checks were being passed without Frazier's consent. Hadnot admitted the checks were "already completed and signed when" he got them from Adams. From this evidence, the jury could reasonably infer that Adams forged Frazier's check. See Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000) (legal sufficiency standard of review gives "full play" to jury's responsibility to draw reasonable inferences from basic facts to ultimate facts). We therefore hold the evidence is legally sufficient to support the verdict. Ineffective Assistance of Counsel
Adams argues his attorney was ineffective because counsel failed to (1) object to the use of his statement on the basis of testimonial immunity; (2) move to dismiss his case on double jeopardy grounds; (3) object to the punishment range submitted to the jury; and (4) object to the trial court's sua sponte decision to proceed on the offense of forgery. Standard of Review
Adams has the burden to prove by a preponderance of the evidence that: (1) counsel's performance was deficient, i.e., his assistance fell below an objective standard of reasonableness; and (2) Adams was prejudiced, i.e., a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). However, the constitutional right to effective assistance does not mean errorless counsel. See Hernandez v. State, 726 S.W.2d 53, 58 (Tex.Crim.App. 1986). Therefore, an appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. We will not speculate why counsel acted as she did. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Testimonial Immunity
Adams contends that, although he was required to provide Officer Ford with his statement under Texas Penal Code chapter 71 ("Organized Crime"), section 71.04 prevented the use of his statement at trial; and his attorney was ineffective for failing to object to the introduction of his statement on this basis. See Tex. Pen. Code Ann. § 71.04(b) (Vernon 2003) (prohibiting the use of a statement taken under section 71.04(a) against a defendant "in any criminal case, except a prosecution for aggravated perjury or contempt."). However, nothing in the record supports Adams's contention that he was required to give his statement to Ford or that he was offered testimonial immunity. We therefore hold the record does not affirmatively demonstrate counsel's alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Double Jeopardy
Adams next argues that because he was acquitted on the charge of engaging in organized criminal activity, trial on the lesser-included offense of forgery was barred by the doctrine of double jeopardy; therefore, counsel was ineffective for not moving to dismiss the case. A person commits the offense of engaging in organized criminal activity "if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit . . . forgery. . . ." Tex. Pen. Code Ann. § 71.02(a)(1) (Vernon Supp. 2004). The general rule is that greater inclusive and lesser included offenses are the same offenses for double jeopardy purposes. Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App. 1994); Quintanilla v. State, 40 S.W.3d 576, 579 (Tex.App.-San Antonio 2001, pet. ref'd). However, the Legislature has expressed its intent to authorize conviction and punishment for both engaging in organized criminal activity and any of the underlying offenses listed in section 71.02. See Tex. Pen. Code Ann. § 71.03 (Vernon 2003) (it is not a defense to prosecution under section 71.02 that "a person has been charged with, acquitted, or convicted of any offense listed in Subsection (a) of Section 71.02"); see also Lam v. State, 17 S.W.3d 381, 385 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (holding that engaging in organized criminal activity is a separate offense from any of the predicate acts listed under section 71.02(a) for double jeopardy purposes); Crumpton v. State, 977 S.W.2d 763, 770 (Tex.App.-Fort Worth 1998, no pet.) (holding that nothing precludes the State from prosecuting both an organized criminal activity offense and a theft offense as separate offenses and seeking separate punishments); Reina v. State, 940 S.W.2d 770, 775-76 (Tex.App.-Austin 1997, pet. ref'd) (holding Legislature intended that a person may be tried and convicted of both engaging in organized criminal activity and attempted murder). Accordingly, counsel had no basis upon which to move for dismissal on double jeopardy grounds. We therefore hold Adams has failed to defeat the presumption of reasonable professional assistance. Thompson, 9 S.W.3d at 813. Range of Punishment
Adams next argues his trial counsel was ineffective in failing to object to the range of punishment submitted to the jury because the punishment range should have been 180 days to two years. We disagree. Adams relies on Penal Code section 12.35(a), which provides that a person adjudged guilty of a state jail felony shall be punished by confinement for a term of not more than two years nor less than 180 days, absent certain exceptions not applicable here. See Tex. Pen. Code Ann. § 12.35(a) (Vernon 2003). However, Adams's sentence was enhanced under Penal Code section 12.42(a)(2), which provides that proof of two prior felony convictions enhances the punishment of a state jail felony punishable under section 12.35(a) to the punishment for a second degree felony. Tex. Pen. Code Ann. § 12.42(a)(2) (Vernon Supp. 2004). The punishment range for a second degree felony is two to twenty years. Id. § 12.33(a) (Vernon 2003). The enhancement paragraphs of Adams's indictment alleged that he was previously convicted of two felony offenses, forgery and delivery of a controlled substance. Following the State's presentation of evidence of the prior convictions, the jury found the enhancement paragraphs to be true and assessed punishment at twenty years' confinement. Because this punishment is within the range provided for a second degree felony, counsel had no basis upon which to object to the punishment range. We therefore hold Adams has failed to defeat the presumption of reasonable professional assistance. Thompson, 9 S.W.3d at 813. Lesser-Included Offense
Finally, Adams argues counsel was ineffective for failing to object to the trial court's sua sponte decision to proceed on the lesser-included offense of forgery. However, in discharging its duty to instruct the jury on the law applicable to the case under article 36.14 of the Texas Code of Criminal Procedure, the trial court is authorized to sua sponte include a charge on a lesser offense. Ford v. State, 38 S.W.3d 836, 840 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd); McQueen v. State, 984 S.W.2d 712, 717 (Tex.App.-Texarkana 1998, no pet.). Because a trial court is not restricted to submitting lesser-included offenses only when the defendant or the State properly requests them, id., counsel had no basis upon which to object to the court's sua sponte decision to proceed on the lesser-included offense of forgery. We therefore hold Adams has failed to defeat the presumption of reasonable professional assistance. Thompson, 9 S.W.3d at 813. Forgery As Lesser-included Offense
Adams argues that forgery cannot be both a separate offense from, and a lesser-included offense of, engaging in organized criminal activity. We disagree. For double jeopardy purposes, engaging in organized criminal activity is a separate offense from any of the predicate acts listed under Penal Code section 71.02. Lam, 17 S.W.3d at 385. However, if the evidence is legally insufficient to support a verdict on the engaging in organized criminal activity offense, the court may consider whether the evidence is sufficient to support the verdict on the lesser predicate offense. See Hart v. State, 89 S.W.3d 61, 66 (Tex.Crim.App. 2002) (holding evidence legally insufficient to support verdict on engaging in organized criminal activity but sufficient to support verdict on lesser-included offense of theft); Smith v. State, 36 S.W.3d 908, 910 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (considering theft a lesser included offense in a charge for engaging in organized criminal activity to commit theft); Adams v. State, 40 S.W.3d 142, 145 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (holding evidence legally insufficient to support verdict on engaging in organized criminal activity but sufficient to support verdict on lesser-included offense of aggravated assault). We affirm the trial court's judgment.