Jackson v. State

Full title: DERRICK JACKSON, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 28, 2006

Nos. 05-05-00870-CR, 05-05-00871-CR (Tex. App. Jul. 28, 2006)

Opinion

Nos. 05-05-00870-CR, 05-05-00871-CR

Opinion Filed July 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-23527-SMQ F04-23526-SMQ. Affirm.

Before Justices WRIGHT, LANG-MIERS, and MAZZANT.

MEMORANDUM OPINION

Opinion By Justice LANG-MIERS.

Appellant pleaded guilty before a jury to the felony offenses of evading arrest and detention using a motor vehicle (cause number 05-05-00870-CR and trial court cause number F04-23527-SMQ) and aggravated robbery with a deadly weapon, enhanced by a prior felony conviction (cause number 05-05-00871-CR and trial court cause number F04-23526-SMQ). The jury assessed punishment in the aggravated robbery case at confinement for thirty-two years and a fine of $10,000 and in the evading arrest case at confinement for one and a half years. Appellant and his friend, Kevin Warren, were driving around when they saw the complainant drive by in her truck. They decided to steal her truck for its rims. Appellant blocked the complainant with the car, got out of the car, pointed a loaded assault rifle at her, and ordered her out of the truck. Appellant stole the truck and Warren left in the car. The complainant flagged down a passing police officer. Appellant led police on a high-speed chase that ended when appellant wrecked the truck. The police recovered the rifle from the street near the truck. In four issues, appellant contends (1) the trial court erred by denying his motion for mistrial after the State introduced five misdemeanor convictions unrelated to appellant; (2) the trial court erred by allowing a height comparison between the prosecutor and appellant; and (3) (4) his counsel was ineffective when he failed to object to the admission of the unrelated prior convictions and the height demonstration. We affirm the judgments of the trial court.

Motion for Mistrial

In his first issue, appellant argues the trial court erred by denying his motion for mistrial. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard and uphold the trial court's ruling if that ruling was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004). Mistrials ought to be rarely declared. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). For this reason, our system presumes that judicial admonishments to the jury are effective. Id. Mistrials are only required when the improper evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). In making this determination, we look to the facts and circumstances of the case. Id. (citing Hernandez v. State, 805 S.W.2d 409, 414 (Tex.Crim.App. 1990)). The State offered ten prior convictions in the punishment phase; five of those convictions did not belong to appellant.¹ Defense counsel did not object to the admission of the convictions and, in fact, appellant stipulated that he committed all ten of the offenses. The State offered the exhibits and appellant's stipulation, rested its case, and the jury was released for the day. Before the proceedings began the next day, the State realized its mistake. The State told the trial court, which instructed the State to withdraw the unrelated exhibits in the presence of the jury and inform the jury they did not belong to appellant. Appellant's counsel moved for mistrial, arguing that the jury "after sleeping on this, they may have simply made their minds up as to . . . where in the range of punishment they think they might fall down or made other prejudicial decisions about the defendant that can't be undone simply by telling them this morning that, well, on this long list of convictions, [five] of these are not his." The court denied the motion. As instructed, the State withdrew the exhibits in the presence of the jury, informed the jury that appellant had not committed those offenses, and asked the jury not to consider them during its deliberations:

[THE STATE]: At this time, ladies and gentlemen of the jury, it's come to the [S]tate's attention that we offered some evidence yesterday that I determined are not the defendant. So I'm gonna retract some of the exhibits and ask you not to consider in your deliberations as we determined these are not the defendant. Okay.

State's Exhibit 39, which was a theft-20 offense.

State's Exhibit 38, which is a possession-of-marijuana offense.

State's Exhibit 36, the driving with no license.

State's Exhibit 37, a possession of marijuana.

State's Exhibit 34, driving with no license.

THE COURT: Those, in fact, belong to a different person; is that correct?

[THE STATE]: Yes, Your Honor, another Derrick Jackson. . . . [The] State would withdraw the prior exhibits and reoffer them for record purposes only.

The record does not contain any indication that the State offered these unrelated convictions against appellant to inflame the jury. Instead, the record reflects that when the State became aware of its error, it advised the court before the proceedings began the next day. When the prior convictions were presented, the trial was not over, and the jury had been instructed not to make a decision or even discuss the case until the trial court gave them instructions to begin their deliberations. The trial judge did not personally instruct the jury not to consider the unrelated convictions, but the court directed the State to instruct the jury and it did so. All of the unrelated convictions were for non-violent misdemeanors, two of which were punishable by a fine only. Although the jury could have thought about the five convictions the night before, we presume they followed the instructions and did not consider the unrelated convictions during deliberations. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998); Waldo v. State, 746 S.W.2d 750, 752-54 (1988) (jury presumed to follow instructions to disregard improper evidence). The court of criminal appeals has repeatedly held curative instructions are effective. See Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App. 1992). And a prompt instruction to disregard will ordinarily cure error regarding extraneous offenses. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000); Nobles, 843 S.W.2d at 514. On this record, a reasonable trial judge could have concluded that an instruction to disregard the unrelated prior convictions would be effective to remove any possible prejudice caused by their erroneous admission. See Wead, 129 S.W.3d at 130. We overrule appellant's first point of error.

Height Comparison

In his third issue, appellant argues the trial court erred by allowing the State to conduct a height comparison between appellant and the prosecutor because it was irrelevant or, alternatively, highly prejudicial under rule 403. That rule provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. During the State's questioning of the complainant, she identified appellant as the driver of the car and the one who pointed the gun at her. She also testified that the assailant with the gun was the taller of the two. When appellant testified in his own behalf, he denied any real participation in the commission of the offense beyond driving the car and told the jury that Kevin Warren, the other assailant, was the one with the gun. During cross-examination, the prosecutor questioned appellant as follows:

Q. [THE STATE] Okay. How tall are you?

A. About 5'11", six foot.

[THE STATE]: Okay. Your Honor, may I ask the defendant to step down?

THE COURT: Yes.

[DEFENSE COUNSEL]: Your Honor, I'm gonna object to physical demonstration unless we have some idea what they are. The defendant is not a proper

THE COURT: What do you want him to do?

Q: [THE STATE] I'm 5'5" and Kevin Warren is 5'5"; is that correct?

A: No, no.

Q: Kevin Warren, the co-defendant, is 5'5".

[DEFENSE COUNSEL]: Objection. Asked and answered. They can put him on the stand if they want, Your Honor. They have him.

THE COURT: Overruled. Rephrase your question or ask it again.

Q. [THE STATE] How tall are you?

A. 5'11", six foot.

Q. Can you step down, sir?

[DEFENSE COUNSEL]: Your Honor, I object to this demonstration.

THE COURT: Overruled, overruled.

Q. [BY THE STATE] Come stand by me, sir.

A. (Defendant complies)

[DEFENSE COUNSEL]: Your Honor, I object. She's taken her shoes off in order to skew this demonstration. I don't think the defendant should be asked to remove his shoes.

THE COURT: Overruled.

Q. [BY THE STATE] There's a significant difference in height between you and me; is that correct?

A: Yes.

* * * Q. You admitted to the jury you were the driver of the vehicle; is that correct?

A. Yes.

Q. And you heard [the complainant] tell the jury the driver of the vehicle [was] the one with the gun; is that correct?

A. Yes.

[DEFENSE COUNSEL]: I object to comparison testimony, Your Honor.

THE COURT: Overruled.

To preserve a complaint that the trial court erroneously admitted evidence, the appellant must have objected to the trial court's action or have requested the relief sought with sufficient specificity to make the trial court aware of the complaint or request, unless the specific grounds were apparent from the context. Tex.R.App.P. 33.1(a)(1)(A). Appellant made one general objection to the demonstration, and the grounds appellant argues on appeal were not apparent from the context. Accordingly, appellant has not preserved any error for appellate review. Tex.R.App.P. 33.1(a)(1)(A); see Threadgill v. State, 146 S.W.3d 654, 670 n. 5 (Tex.Crim.App. 2004) (relevance objection); see Bell v. State, 938 S.W.2d 35, 49 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 827 (1997) (rule 403 objection) (citing Montgomery v. State, 810 S.W.2d, 372, 388 (Tex.Crim.App. 1991) (op. on reh'g)). We overrule appellant's third issue.

Ineffective Assistance of Counsel

In his second and fourth issues, appellant contends counsel rendered ineffective assistance by failing to object to the admission of the unrelated convictions and the height demonstration. To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Without evidence of the strategy involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814; Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003).

Unrelated Offenses

Even though the record contains no evidence of defense counsel's trial strategy, we cannot envision a strategy reason for a trial attorney allowing his client to stipulate to the admission of five prior convictions that did not belong to him. Assuming counsel's performance was deficient, we consider whether the outcome would have been different if counsel had objected to the admission of these unrelated prior convictions. The State withdrew the exhibits of the unrelated convictions, explained to the jury that the offenses were not committed by appellant, and instructed the jury not to consider the convictions for any reason. The trial court reiterated the State's instructions when it asked, "Those, in fact, belong to a different person; is that correct?" The State responded that the convictions belonged to a different Derrick Jackson. We presume the jury followed the instructions. Colburn, 966 S.W.2d at 520; Waldo, 746 S.W.2d at 754. The State did not refer to the unrelated convictions in its closing argument except to respond to defense counsel's argument. Defense counsel reminded the jury about the wrongly admitted convictions in his closing argument and argued the State "piled it on [appellant]." The State responded by reminding the jury that it had discovered and corrected the mistake, even though defense counsel reviewed all of the prior convictions and appellant even stipulated to them. Additionally, the evidence showed appellant car jacked the complainant by pointing a loaded SKS assault rifle at her. Appellant led police on a 17-mile chase that reached speeds of 125 miles per hour at times and ended only when appellant totaled the truck. He told the jury the only reason he car jacked the complainant was because he wanted the rims on her truck. Appellant also testified he used ecstasy and marijuana before the incident. The complainant testified that when appellant pointed the gun at her, she thought she was going to die. Other evidence offered during the punishment phase showed that appellant was previously convicted of felony and misdemeanor theft, evading arrest in which he used an alias, possession of marijuana, and deadly conduct in which he pointed a gun at his stepmother and fired the gun into the air. Appellant testified, without exception, that he had not committed these offenses and someone else was to blame, even though he pleaded guilty or nolo contendere to each one. The penitentiary packets offered into evidence also showed that appellant violated the terms of his release in at least two of these cases. The jury was instructed to assess appellant's punishment somewhere between the range of fifteen to ninety-nine years or life. The State argued the case "isn't a 15-year case, by far. This isn't a 30-year case. Derrick Jackson doesn't deserve anything less than a substantial amount of time. . . ." Appellant argued for "fairness," implying a 15-year sentence was fair. The jury assessed punishment at thirty-two years, less than half-way between the punishment range, and less than the State's request. We conclude appellant has not shown that the result would have been different if his counsel had objected to the unrelated convictions and they had not been admitted. See Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004) (even assuming counsel should have objected to testimony it was unlikely, in face of evidence, that jury would have reached different conclusion without testimony). We overrule appellant's second issue.

Height Demonstration

Appellant argues his counsel was ineffective when he did not object to the height demonstration because it was not relevant or it was highly prejudicial. Defense counsel generally objected to the height demonstration, but we previously concluded that the general objection did not preserve error for our review. An isolated failure to object to improper evidence or certain procedural mistakes does not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984). And even assuming that counsel's performance was deficient by not making a proper objection to the demonstration, we conclude appellant has not shown that the result of the proceeding would have been different. The height demonstration was offered to show that appellant, as the taller of the two assailants, was the one with the rifle as the complainant testified. Defense counsel objected each time the State referred to the height comparison during its closing argument because Warren's height was never offered into evidence. Each time, the trial court sustained the objection and instructed the jury to disregard the statements. Additionally, appellant's counsel cross-examined the complainant exhaustively about which assailant was the one with the rifle, and she maintained it was appellant. The jury was not asked to decide whether appellant was the assailant with the rifle because appellant pleaded guilty to aggravated robbery with a deadly weapon. Whether appellant had the rifle went only to mitigation, if it did, in punishment. Having considered the other evidence offered during the punishment phase, we fail to see how a proper objection to the height demonstration would have affected the outcome of this case. We overrule appellant's fourth issue.

Conclusion

We conclude the trial court did not abuse its discretion by denying appellant's motion for mistrial and counsel was not ineffective when he failed to object to the erroneous admission of unrelated prior convictions or the height demonstration. Accordingly, we affirm the judgments of the trial court.