Summary
stating that jury note asked how much time is served on a life sentence and a sentence for 75 years
Summary of this case from Byrd v. StateOpinion
No. 04-02-00281-CR.
Delivered and Filed March 19, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
From the Criminal District Court, Jefferson County, Texas, Trial Court No. 85703. AFFIRMED AS REFORMED.
Before Justices DUNCAN, ANGELINI and MARION.
MEMORANDUM OPINION
Joe Mason, III was convicted of murder and sentenced to seventy-five years in the Texas Department of Criminal Justice — Institutional Division. Mason appeals, complaining the trial court erred in failing to conduct a hearing on his motion for new trial, entering an affirmative finding of a deadly weapon in the judgment, and failing to instruct the jury on the law applicable to parole eligibility. He also argues he received ineffective assistance of counsel in connection with his motion for new trial. We agree the judgment should be reformed to remove the deadly weapon finding. However, we disagree with Mason's remaining points and affirm the judgment as reformed.
Factual and Procedural Background
Jeremy McGill was killed after a night of partying with some friends. His charred remains were found the next morning in his burned-out car. The autopsy report concluded death was due to a traumatic injury to the head; however, the heat and charring obscured the injury and prevented determination of what weapon caused the injury. The indictment alleged Mason caused McGill's death "by a manner and means unknown to the Grand Jury." The State presented its case on the theory that Mason shot McGill in the back of the head with a rifle and then poured gasoline in and on the car and set it on fire. Mason presented no witnesses at the guilt/innocence stage. The jury found him guilty of murder. During the punishment phase, Mason took the stand and testified that he did in fact shoot McGill with a rifle, but that it was an accident. The jury sentenced Mason to seventy-five years confinement. The trial court imposed sentence on March 8, 2002; and the judge entered an affirmative finding of a deadly weapon in the judgment. Mason's court-appointed trial counsel helped Mason prepare and file a pro se notice of appeal on March 19, 2002. The same day, the trial court appointed appellate counsel to represent Mason. On April 2, Mason filed a pro se motion for new trial, alleging his trial attorney provided ineffective assistance of counsel at trial. The motion was overruled by operation of law.Failure to Grant a Hearing on Motion for New Trial
Mason first argues the trial court abused its discretion by failing to conduct an evidentiary hearing on his pro se motion for new trial. We disagree. A motion for new trial must be verified or supported by affidavit. See Reyes v. State, 849 S.W.2d 812, 816 (Tex.Crim. App. 1993). An inmate may use the unsworn declaration provided in Chapter 132 of the Texas Civil Practice and Remedies Code in lieu of a verification or affidavit. Tex. Civ. Prac. Rem. Code § 132.001 et seq. (Vernon 1997). Section 132.002 requires the unsworn declaration "must be . . . subscribed by the person making the declaration as true under penalty of perjury." Id. § 132.002(2). Section 132.003 requires the declaration be substantially in the form set forth therein. Id. § 132.003 ("I. . . . declare under penalty of perjury that the foregoing is true and correct."). Mason's pro se motion for new trial is signed by him and is followed by the following "Affidavit":On this the 30 day of March 2002 and pursuant to chapter 132 of the civil practices and remedies code, I, Joe Mason III, #201792, being incarcerated in the Jefferson County Jail, Jefferson County, Texas, declare under penalty of perjury that the foregoing motion for new trial is true and correct to the best of my knowledge.By including the phrase "to the best of my knowledge," the declaration does not attest to the truthfulness of the facts. It is therefore not in substantial compliance with the form required by law and not effective as a verification or affidavit. See id. §§ 132.002(2), 132.003. Because the motion for new trial was insufficient as a matter of law, the trial court did not abuse its discretion by failing to hold a hearing on the motion. Moreover, Mason was represented by appointed counsel when he filed the pro se motion for new trial. The trial court therefore did not err in refusing to consider the motion. See Turner v. State, 805 S.W.2d 423, 432 n. 1 (Tex.Crim. App.), cert. denied, 502 U.S. 870 (1991) (refusing to consider pro se brief filed by represented appellant); Landers v. State, 550 S.W.2d 272, 280 (Tex.Crim.App. 1977) (holding no right to hybrid representation); Llano v. State, 16 S.W.3d 197, 198 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (holding trial court not required to consider or hold hearing on pro se motion for new trial filed by represented defendant).
Ineffective Assistance of Counsel
In his second point of error, Mason contends he was denied effective assistance of counsel during the time in which a motion for new trial must be filed and presented and asks us to abate the appeal and remand the case to the trial court to pursue his motion for new trial. A criminal defendant is constitutionally entitled to effective assistance of counsel at all critical stages of the prosecution. Michigan v. Jackson, 475 U.S. 625, 629-30 (1986); Upton v. State, 853 S.W.2d 548, 553 (Tex.Crim.App. 1993). The Texas Court of Criminal Appeals has not expressly held the thirty-day period allowed for preparing and filing a motion for new trial is a "critical stage" of the proceedings. See Oldham v. State, 977 S.W.2d 354, 360-61 (Tex.Crim.App. 1998) (leaving question open). Assuming it is, Mason has not shown he was denied effective representation of counsel during the time for filing and presenting a motion for new trial. We presume the defendant was represented by counsel and that counsel acted effectively. Oldham, 977 S.W.2d at 363. To show deficient performance, a defendant must show counsel's performance fell below an objective standard of reasonableness and rebut the presumption that counsel's decisions are based on sound strategy. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim. App. 1999). The record must affirmatively show the alleged ineffectiveness. Id. at 813. Mason's trial counsel continued to represent him after judgment and assisted him in filing a pro se notice of appeal on March 19, 2002, eleven days after sentence was imposed. The same day, the trial court appointed T. Pearson to represent Mason. Mason filed his pro se motion for new trial fourteen days later, on April 2. A court form dated April 3 notices a setting relating to the motion for new trial for April 12. An April 12 docket entry states "Court ordered Tom Pearson atty on the Appeal case to meet with the Defendant to determine if Pearson will file a Motion for new Trial." The motion for new trial was overruled by operation of law on May 23, 2002. Pearson continued to represent Mason until June 2002, when this court allowed him to withdraw after he represented to the court that he is not sufficiently familiar with the Texas Rules of Appellate Procedure to be in charge of the appeal. The record unequivocally supports the presumption that Mason was represented by counsel during the time for preparing, filing, and presenting the motion for new trial. Mason argues, however, that he has met his burden of showing Pearson's representation was deficient. He relies on (1) Pearson's failure to file a motion for new trial or to adopt the pro se motion Mason filed; (2) Pearson's failure to obtain a hearing on the pro se motion; (3) the April 12, 2003 docket entry; and (4) Pearson's statement to this court in his motion to withdraw that he is not sufficiently familiar with the Texas Rules of Appellate Procedure to be in charge of the appeal. We disagree that deficient performance has been shown. As Mason concedes in his brief, the "record is silent as to any action that Pearson took on [Mason's] behalf." Although it is evident Mason wanted to pursue a motion for new trial and Pearson did not do so, the record is silent as to what, if anything, Pearson did to examine potential grounds for a motion for new trial; silent as to why Pearson did not to pursue the grounds Mason alleged pro se; and silent as to why Pearson did not himself file a motion for new trial. It is entirely possible that after interviewing Mason and researching potential grounds for a motion for new trial, including Mason's contention that trial counsel was ineffective, Pearson concluded there was no legal or factual basis for pursuing a motion. It would be pure speculation for this court to conclude from a silent record that Pearson "failed to render any assistance at all," as Mason contends. With respect to the April 12 docket entry, Mason contends it "shows that either the trial court or Pearson failed to realize that by the time this entry was made, it was too late for Pearson to file a motion for new trial." As this statement recognizes, however, the docket entry could reflect nothing more than the trial court's miscalculation of the deadline for filing a motion. Finally, Pearson's statement to this court, made after the motion for new trial was overruled by operation of law, regarding his lack of familiarity with the rules of appellate procedure sheds no light on what Pearson did or did not do with respect to a motion for new trial. We hold Mason has failed to rebut the presumption that counsel rendered effective assistance.Deadly Weapon Finding
In his third point of error, Mason argues the trial court erred in entering an affirmative finding in the judgment that Mason used or exhibited a deadly weapon. We agree. "On an affirmative finding [that defendant used or exhibited a deadly weapon during the commission of a felony offense], the trial court shall enter the finding in the judgment of the court." Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Vernon Supp. 2002). When the defendant is tried by a jury on both guilt and punishment, the trial court has no authority to make an affirmative finding that the defendant used a deadly weapon. Fann v. State, 702 S.W.2d 602, 603 (Tex.Crim.App. 1985). The jury's verdict constitutes an affirmative finding of a deadly weapon only if:1) the indictment specifically pleads the words "deadly weapon" and the verdict reads "guilty as charged in the indictment";
2) the indictment specifically alleges the use of a particular weapon that is per se a deadly weapon and the verdict reads "guilty as charged in the indictment"; or
3) the jury affirmatively answers a special issue asking whether a deadly weapon was used or exhibited in the commission of the offense.Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App. 1985). The court in Polk reached this holding after researching the legislative history of article 42.12 of the Code of Criminal Procedure. Id. at 393 and n. 1. The court concluded that by using the words "affirmative finding," the Legislature "intended to mean the trier of fact's express determination that a deadly weapon . . . was actually used or exhibited during the commission of the offense." Id. The court overruled earlier cases and held "[w]e will no longer look to the facts of the case to permit an "implied" affirmative finding." Id. at 396. If the jury makes the affirmative finding, the trial court is then authorized to enter the affirmative finding in the judgment. The indictment in this case does not use the words "deadly weapon" and does not allege the use of a particular weapon. Rather, the indictment pleaded that the manner and means of McGill's death were unknown to the grand jury, and the jury was instructed to find Mason guilty if it found beyond a reasonable doubt that he "intentionally or knowingly cause[d] the death of . . . Jeremy Wayne McGill, . . . by a manner and means unknown to the Grand Jury." The jury was not submitted a special issue asking whether a deadly weapon was used or exhibited in the commission of the offense. The jury therefore did not make an affirmative finding of a deadly weapon. See Polk, 693 S.W.2d at 396. The State concedes that none of the Polk circumstances is present in this case but argues the jury was not required to find that a deadly weapon was used because Mason admitted during punishment that he shot McGill with a rifle (a per se deadly weapon) and thus "remove[d] the burden of proof from the State." For support, the State relies on Cole v. State, 578 S.W.2d 127 (Tex.Crim.App. 1979), in which the court held that a judicial confession was sufficient to sustain a finding of guilt pursuant to guilty plea. Id. at 128. There is no question that Mason's testimony would have been sufficient to support a jury's finding that a deadly weapon was used. However, Cole does not hold that a judgment of conviction may be upheld without a finding of guilt by the trier of fact. The State cites no authority, and we have found none, to support the State's argument that the trier of fact need not make a deadly weapon finding if the defendant admits its use. Here, the jury made no finding, express or implied, that a deadly weapon was used. The trial court was not authorized to make the finding. See Fann, 702 S.W.2d at 603; Polk, 693 S.W.2d at 394. The trial court therefore erred in entering the deadly weapon finding in the judgment. The State next contends the error was harmless because a deadly weapon finding or conviction of certain felony offenses, including murder, results in the defendant being ineligible for release to mandatory supervision and affects the period of time that must be served before being eligible for parole. Tex. Gov't Code Ann. §§ 508.145, 508.149 (Vernon Supp. 2002); Tex. Code Crim. Proc. Ann. art. 42.12 § 3g (Vernon Supp. 2002). Thus, striking the deadly weapon finding from the judgment will have no effect on Mason as far as those matters are concerned. However, most courts that have considered this question have concluded that other potential collateral effects of a deadly weapon finding preclude a holding that its erroneous inclusion in a judgment is harmless. See Cobb v. State, 95 S.W.3d 664, 667 n. 1 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Barnes v. State, 62 S.W.3d 288, 302 (Tex.App.-Austin 2001, pet. ref'd); Enlow v. State, 46 S.W.3d 340, 345 (Tex.App.-Texarkana 2001, pet. ref'd), cert. denied, ___ U.S. ___, 122 S.Ct. 2675 (2002); Edwards v. State, 21 S.W.3d 625, 627-28 (Tex.App.-Waco 2000 no pet.); Rachuig v. State, 972 S.W.2d 170, 179 (Tex.App.-Waco 1998, pet. ref'd); but see Upson v. State, 949 S.W.2d 531, 533-34 (Tex.App.-Houston ftline[14th Dist.] 1997, no pet.) For instance, the judgment in this case, with the improper deadly weapon finding, could be admitted against Mason if he is tried for another offense in the future. See Enlow, 46 S.W.3d at 345. Moreover, "[w]e do not presume to know the effect this improper finding might have on [the defendant's] parole eligibility under the guidelines established by the Board of Pardons and Paroles." Edwards v. State, 21 S.W.3d 625, 627-28 (Tex.App.-Waco 2000, no pet.) (quoting Rachuig v. State, 972 S.W.2d 170, 179 (Tex.App.-Waco 1998, pet. ref'd)). We therefore cannot conclude the error was harmless. Accordingly, the deadly weapon finding must be stricken from the judgment.