David v. State

Full title: RAMON LORENZO DAVID, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: May 3, 2007

No. 01-05-00952-CR (Tex. App. May. 3, 2007)

Opinion

No. 01-05-00952-CR

Opinion issued May 3, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2.

On Appeal from the 185th District Court Harris County, Texas, Trial Court Cause No. 899637.

Panel consists of Justices NUCHIA, KEYES, and HIGLEY.

MEMORANDUM OPINION

EVELYN V. KEYES, Justice.

Appellant, Ramon Lorenzo David, appeals the trial court's denial of his application for writ of habeas corpus brought pursuant to Texas Code of Criminal Procedure article 11.08. See Tex. Code Crim. Proc. Ann. art. 11.08 (Vernon 2005). In three issues, appellant argues (1) that trial counsel's failure to preserve the testimony of appellant's sole corroborating witness after the trial court determined that she had violated its sequestration order and precluded her from testifying was prejudicially ineffective and (2) that his right to call witnesses under the Sixth Amendment and his right to a fair trial under the Fifth and Fourteenth Amendments were violated when the court precluded that witness from testifying. We affirm.

Facts and Procedural History

At the time of the offense, appellant was dating Sonja Loyola, the grandmother of the six-year-old complainant, C.R. C.R. and her twin sister, S.R., often spent the night at their grandmother's apartment. In September 2005, the twins' mother dropped them off at Loyola's apartment for the night. At some point during their stay, appellant inserted his finger into C.R.'s vagina while he and C.R. were lying under the covers on the bed watching television. C.R. told S.R. what had happened but told no one else until her mother arrived the next day. Appellant was charged with the aggravated sexual assault of C.R. At trial, soon after the State began its opening statement to the jury, appellant's trial counsel invoked the sequestration rule ("the rule").¹ All witnesses, including Loyola, were sworn in, and the trial court admonished them to wait outside the courtroom until called to testify and not to discuss the case with anyone other than the lawyers in the case. During her direct examination of her fifth witness, the prosecutor informed the trial court that Loyola was sitting in the courtroom. At this statement, Loyola got up and left. When appellant's trial counsel attempted to call Loyola as his first witness, the State indicated to the court that Loyola had violated the rule and the court's admonitions and requested a hearing. The jury exited the courtroom and the court held a contempt hearing. At the contempt hearing, the State called Virginia Almanza-Cerda, an outreach counselor who had been working with the complainant's family. Almanza-Cerda testified that the day before, as she was standing in the hallway outside the courtroom during a break in appellant's trial, she overheard Loyola say to appellant, "They didn't see anything. How could she see anything if it was under a blanket? How could she see that?" Based on appellant's gestures, Almanza-Cerda determined that Loyola and appellant were discussing what had just happened in the courtroom. Jaime David, appellant's brother also testified. According to his testimony, at some point in the trial, he left the courtroom and Loyola asked him what was going on inside the courtroom. Jaime responded, "Well, the only strange thing I heard in there was that the little kid says she saw [appellant] playing with her sister under the sheet." The State next called Loyola. Although she did not remember speaking to Jaime in the hall outside the courtroom, Loyola admitted that she and appellant had discussed his case the night before:

[STATE]: Did [appellant] tell you what was happening here in the courtroom?

[LOYOLA]: He said: It's just lies and it's not the truth.

[STATE]: And did he tell you specifically what they had said about the covers and the hands under the covers?

[LOYOLA]: Yes, that one of them said that she had seen something under the cover.

[STATE]: And [appellant] told you about that after-during the break?

[LOYOLA]: No, he told me at home.

[STATE]: He told you at home? Did y'all talk about this case last night at home?

[LOYOLA]: Yes, we did. He said that he was very upset and he was-it was not the truth that is what was said.

. . . .

[STATE]: He did repeat some of the things the girls said, didn't he?

[LOYOLA]: No. The only thing he had told me about was he was very upset and that's-the only thing he said was that the other baby said something about his hand moving under the cover.

At the conclusion of the contempt hearing, the trial court found Loyola to be in violation of the rule and determined that she would not be allowed to testify if the defense chose to call her as a witness, found her in contempt, and ordered her to be taken into custody. The court also found that appellant had violated the rule, but took it under advisement whether to hold him in contempt, pending the outcome of the trial. The trial continued without the testimony of Loyola, and the jury ultimately convicted appellant of aggravated sexual assault and assessed his punishment at 10 years' imprisonment and a $ 10,000 fine. The trial court suspended the imposition of his jail sentence and placed appellant on community supervision. In an unreported 1999 opinion, the Eastland Court of Appeals reformed the trial court's judgment and affirmed it as reformed. See David v. State, No. 11-96-00148-CR, 1999 WL 33743873 (Tex.App.-Eastland Jan. 14, 1999) (not designated for publication), rev'd, No. 386-99 (Tex.Crim.App. Aug. 18, 1999) (not designated for publication). The Court of Criminal Appeals granted appellant's petition for discretionary review in a per curiam unpublished opinion, and reversed and remanded the cause. See David v. State, No. 11-96-00148-CR, 2000 WL 34234572, at *1 (Tex.App.-Eastland Mar. 9, 2000, no pet.) (not designated for publication). On remand, the Eastland Court of Appeals again reformed the trial court's judgment and affirmed it as reformed. See id. On December 26, 2001, appellant filed an application for habeas corpus with the 185th District Court in Harris County alleging (1) that his right to call witnesses under the Sixth Amendment and his right to a fair trial under the Fifth and Fourteenth Amendments were violated when the court precluded Loyola from testifying in his defense after determining that she had violated its sequestration order and (2) that appellate counsel's failure to raise these issues on appeal constituted ineffective assistance of counsel. In support of his application, appellant included an affidavit from Loyola detailing the testimony she would have given had she been permitted to testify. On February 18, 2003, appellant was taken into custody by the Immigration and Naturalization Service. On March 11, 2003, appellant filed a superseding application for habeas corpus, alleging that trial counsel's failure to preserve Loyola's testimony after the trial court precluded her from testifying was prejudicially ineffective and that it deprived him of his right to call witnesses and his right to a fair trial. In support of his application, appellant included Loyola's affidavit and his own affidavit that he "did not consent to or know that Sonja Loyola David was sitting in the courtroom during portions of [his] trial." Appellant also included an affidavit from habeas counsel that habeas counsel had, on four separate occasions, attempted to telephone appellant's trial counsel, but had been unable to reach him, that trial counsel's address was not listed on the State Bar of Texas website, and that trial counsel had been administratively suspended since September 6, 2002 for failing to pay his bar dues. Appellant was deported on March 27, 2003. On October 8, 2003, appellant filed a second affidavit from Loyola stating that appellant did not know she was in the courtroom and that trial counsel did not talk to her before appellant's trial about her testimony and was not aware that she was sitting in the courtroom during some portions of the trial. On July 6, 2004, the trial court held a hearing on appellant's habeas application. On August 10, 2005, the court denied the application.

Analysis

Ineffective Assistance of Counsel

In his first issue, appellant argues that the trial court erred when it denied his application for writ of habeas corpus on the basis of ineffective assistance of counsel. More specifically, appellant contends that trial counsel's failure to preserve the beneficial testimony of Loyola, his sole corroborating witness, who was precluded from testifying after violating the sequestration rule, was prejudicially ineffective. We evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See Ex parte White, 160 S.W.3d 46, 49 (Tex.Crim.App. 2004). First, the appellant must show that trial counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064; Ex parte White, 160 S.W.3d at 51. To prove this deficiency in representation, the defendant must demonstrate that his counsel's performance deviated from prevailing professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). Second, the appellant must show prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Ex parte Chandler, 182 S.W.3d 350, 354 (Tex.Crim.App. 2005). This requires the defendant to show that there is a reasonable probability that, but for his trial counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S. Ct. at 2068. The failure to satisfy one prong of the Strickland test negates a court's need to consider the other. See id. at 697, 104 S. Ct. at 2069. Under the Texas Rules of Evidence, error in the exclusion of evidence may not be challenged on appeal unless the proponent perfected an offer of proof or a bill of exception. Tex. R. Evid. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex.Crim.App. 1999). Here, appellant's trial counsel failed to preserve Loyola's testimony after the trial court precluded her from testifying because she had violated its sequestration order. Thus, trial counsel's failure to make an offer of proof prevented appellant from arguing on direct appeal that the trial court had erred when it precluded Loyola from testifying in appellant's defense. See Tex. R. Evid. 103(a)(2); Guidry, 9 S.W.3d at 153. Regardless of whether trial counsel's failure to make an offer of proof resulted in a deficient representation, this failure was not prejudicial because the trial court acted within its discretion when it precluded her from testifying. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. Upon invocation by either party or by the trial court's own motion, Texas Rule of Evidence 614 mandates the exclusion of witnesses "so that they cannot hear the testimony of other witnesses." Tex. R. Evid. 614. The rule serves two purposes: (1) it prevents witnesses from consciously or unconsciously tailoring their testimony to fit the testimony of other witnesses and (2) in the case of witnesses testifying for the same side, it enhances the jury's ability to detect falsehood by exposing inconsistencies in their testimony. Tell v. State, 908 S.W.2d 535, 540 (Tex.App.-Fort Worth 1995, no pet.). Before a defense witness may be disqualified for violating the rule, the defendant's constitutional right to call witnesses must be taken into account. Webb v. State, 766 S.W.2d 236, 240 (Tex.Crim.App. 1989); Lopez v. State, 960 S.W.2d 948, 953 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). Thus, as a general rule, a witness should not be precluded from testifying solely on the ground that the witness violated the rule. Lopez, 960 S.W.2d at 953. A trial court's decision to exclude a witness's testimony for violating the rule is reviewed under an abuse of discretion standard. Id. A trial court abuses its discretion if its ruling is outside the zone of reasonable disagreement. Id. The test for determining whether a court properly exercised its discretion in excluding testimony in this context is: (1) whether the "particular and extraordinary circumstances" show that the defendant or his counsel "consented, procured, connived or had knowledge of" a witness or potential witness who was in violation of the rule and (2) if no particular circumstances existed to justify disqualification, whether the testimony of the witness was crucial to the defense. Id. (citing Webb, 766 S.W.2d at 245). Here, the record reflects that Loyola first violated the rule by sitting in the courtroom during the testimony of another witness. This violation, however, would be insufficient grounds to justify excluding her testimony because nothing in the record suggests that appellant or trial counsel consented, procured, connived, or had knowledge of this violation until the State notified the court of her presence in the courtroom. See Lopez, 960 S.W.2d at 953. The trial court also heard evidence that Loyola asked appellant's brother, Jaime, what was happening in the courtroom. This evidence also would be insufficient grounds to justify excluding her testimony because nothing in the record suggests that appellant or trial counsel consented, procured, connived, or had knowledge of this violation until Jaime's testimony during the contempt hearing. See id. However, the trial court heard further evidence that Loyola violated the rule when she spoke to appellant on two separate occasions about the trial. At the contempt hearing, Almanza-Cerda testified that she saw Loyola and appellant talking in the hallway regarding what had just happened in the courtroom. Loyola also admitted that she and appellant had discussed the girls' testimony the night before, and appellant had told her what the girls had said. Because appellant was complicit in these violations, he necessarily had knowledge of them. See id. Thus, particular and extraordinary circumstances existed that justified the trial court's exclusion of Loyola's testimony. See id. The trial court, therefore, acted within its discretion when it excluded her testimony,² and appellant has failed to meet his burden under the prejudice prong of Strickland. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Ex parte Chandler, 182 S.W.3d at 354. We overrule appellant's first issue.

Right to Call Witnesses and Right to a Fair Trial

In his second and third issues, appellant argues that his right to call witnesses under the Sixth Amendment and his right to a fair trial under the Fifth and Fourteenth Amendments were violated when the court precluded Loyola from testifying after determining that she had violated the rule. We have already determined, however, that the trial court acted within its discretion when it excluded Loyola's testimony. Thus, it could not have violated appellant's right to call witnesses and his right to a fair trial when it excluded Loyola's testimony. We overrule appellant's second and third issues.

Conclusion

We affirm the trial court's denial of appellant's application for writ of habeas corpus.