Opinion
NO. 09-10-00538-CR
07-25-2012
VEDAL DAVIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 20784
MEMORANDUM OPINION
A jury found Vedal Davis guilty of aggravated assault with a deadly weapon, found the enhancement paragraphs true, assessed punishment at thirty-three years of confinement in prison, and assessed a $10,000 fine. With four issues, Davis appeals his conviction. We find no reversible error concerning the indictment, the trial court's consideration of Davis's stipulation, the admission of the child-witness's statements, or the assistance provided by defendant's counsel. The trial court's judgment is affirmed.
THE INDICTMENT
Davis's first three issues relate to his indictment. An indictment was returned by a Hardin County grand jury in cause number 18640 in October 2007. The indictment charged Davis with aggravated assault with a deadly weapon. The charging portion of the indictment stated that Davis "on or about March 16, 2007 in Hardin County, Texas did; then and there intentionally or knowingly cause bodily injury to Lechadrien Cole by striking him with his motor vehicle, and the defendant did then and there use or exhibit a deadly weapon, to wit; a pipe, during the commission of said assault." The indictment included two enhancement paragraphs.
The State filed a motion to amend the indictment. The amendment changed the name of the victim to George Stewart, and alleged he was struck with a pipe. The motion stated that the amended indictment did "not allege a new or separate offense" or prejudice Davis's rights. The trial court granted the State's motion, and the indictment was timely amended. See Tex. Code Crim. Proc. Ann. art. 28.10(a) (West 2006). Davis did not file a motion to quash the original or amended indictment in cause number 18640. To the extent that Davis contends the amendment was ineffective because it was not made by physical alteration of the face of the charging instrument, we disagree. The Texas Court of Criminal Appeals stated in Riney v. State that "physical interlineation" of the charging instrument is not the exclusive method of accomplishing an amendment. Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000).
The State re-indicted Davis in cause number 20784, and two days later dismissed the indictment in cause number 18640. The new indictment in cause number 20784 stated that Davis "on or about June 2nd, 2007 in Hardin County, Texas did . . . then and there intentionally and knowingly cause bodily injury to George Stewart by striking him with a pipe, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a pipe, during the commission of said assault." The indictment included the same enhancement paragraphs, but an additional paragraph read as follows: "And it is further presented in and to said court that during a period from October 10, 2007 to July 12, 2010, an indictment charging the above offense was pending in a court of competent jurisdiction, to wit: Cause Number 18640 in the 356th Judicial District Court of Hardin County, Texas styled the State of Texas vs. Vedal Abdul Davis."
Davis filed a pre-trial motion to quash the indictment in cause number 20784. In the motion and at the pre-trial hearing, Davis argued the indictment failed to give the trial court jurisdiction because the indictment failed to allege that the manner and use or the intended use was capable of causing death or serious bodily injury. See Tex. Penal Code Ann. § 1.07(a)(17) (West Supp. 2011). At the pre-trial hearing, Davis also argued that the last paragraph of the indictment was not a proper enhancement paragraph. The State explained that the paragraph was not an enhancement paragraph but was instead language notifying the court that there was an indictment pending against Davis for the same conduct to toll the statute of limitations. See Tex. Code Crim. Proc. Ann. arts. 12.01(7) (West Supp. 2011), 12.05(b),(c) (West 2005). Davis then stipulated that he was under indictment for the same conduct which tolled the statute of limitations. The trial court determined that the indictment as written provided sufficient notice to the defendant to prepare his defense. The jury was impaneled the same day.
The next day, Davis filed a motion to dismiss arguing that the new indictment was void and prosecution was barred by limitations, because the indictment on which the State relied for tolling had a different offense date, a different victim, and an allegation of assault by a different method. At the motion-to-dismiss hearing, the original indictment, the motion to amend the indictment, the amended indictment, and the current indictment were all admitted into evidence without objection from the defense. The State argued that the motion to dismiss was untimely and that Davis had, in effect, stipulated to tolling of limitations the previous day. The trial court denied the motion to dismiss.
Davis maintains the indictment in cause number 20784 is void because the prosecution is barred by limitations. The amended indictment in cause number 18640 alleged the same victim and weapon as the current indictment in cause number 20784. The difference in the amended indictment in 18640 and the indictment in cause number 20784 was the change of the date of the offense from "on or about March 16, 2007" to "on or about June 2, 2007[.]" Davis's pretrial motion to quash the indictment in cause number 20784 did not raise the limitations issue or suggest that the indictment was void because the tolling paragraph relied on an indictment with a different date, different victim, and a different method. The indictment in cause number 20784 provided Davis sufficient notice.
Appellant argues that the stipulation had no legal effect because a limitations defense is for the defendant's benefit and he cannot stipulate to evidence that he has the burden of proving or presenting. Generally, a stipulation bars the stipulating party from attempting to disprove the stipulated fact. Bryant v. State, 187 S.W.3d 397, 400 (Tex. Crim. App. 2005). While appellant's argument suggests that, without the State's agreement, he could not satisfy his burden by an offer to stipulate that the charge is barred by limitations, that is not the issue here. Essentially he stipulated the charge was not barred. Courts have acknowledged the validity of this type of stipulation. See, e.g., State v. Franceschini, No. 03-01-00388-CR, 2002 Tex. App. LEXIS 2057 at **2-9 (Tex. App.—Austin Mar. 21, 2002, no pet.) (not designated for publication) (Oral stipulation by defense counsel that the statute of limitations had not run in exchange for the State's waiving the reading of the tolling paragraph of the indictment to the jury only waived the statute of limitations defense in regards to charges already filed and not to later filed charges.).
Appellant next argues that, by "rais[ing] the issue of limitations, . . . present[ing] evidence that the tolling paragraph was not sufficient to toll the statute of limitations[,] and demand[ing] proof from the State that the statute of limitations was not tolled," he withdrew the stipulation during the hearing on his motion to dismiss. Appellant's counsel explains that he erroneously interpreted the tolling paragraph as an enhancement paragraph, and he was not clear as to what was being stipulated. Appellant argues that a trial court errs in failing to grant a motion to withdraw a stipulation when the defendant through a mistake yields up a substantial defense to the action and neither side would be prejudiced by the withdrawal of the stipulation. See Carrasco v. State, 154 S.W.3d 127, 131 (Tex. Crim. App. 2005) (Cochran, J., concurring), and Porter v. Holt, 11 S.W. 494, 495 (1889).
In support of a limitations defense, Davis's counsel began cross-examining the complainant at trial in an attempt to show deficiencies in prior indictments. The State objected and asked for a hearing outside the jury's presence. During the hearing, Davis argued he was entitled to put on evidence of his defense. The State argued that he could not put on this evidence, because of his stipulation and the lack of a timely-filed motion to quash. After reviewing the reporter's transcript of the stipulation, the trial court did not allow Davis to present evidence regarding his limitations defense.
A trial court has discretion to set aside a stipulation. Franco v. State, 552 S.W.2d 142, 144 (Tex. Crim. App. 1977). The trial court was not asked specifically to set aside the stipulation at the hearing on Davis's motion to dismiss. At the hearing outside the jury's presence during trial, Davis argued that the trial court should allow him to withdraw his stipulation. The State responded by arguing that it would be prejudiced if the trial court allowed the withdrawal of the stipulation, because the State did not have the opportunity to address the tolling of limitations with the jury during voir dire or during the prosecutor's opening statement. The State also argued that it was harmed because the indictment that was read did not include the tolling paragraph.
In denying Davis's request during trial to withdraw the stipulation, the trial judge stated, "I have just always been of the opinion that the stipulation should stand, and that's going to be my ruling in this case. The stipulation is going to stand as stipulated in the record." Under the circumstances, we cannot say the trial court abused its discretion in refusing to allow Davis to withdraw his stipulation. See id. The trial court did not abuse its discretion in denying Davis's motion to dismiss, in excluding Davis's evidence of the affirmative defense of limitations, or in denying Davis's motion for an instructed verdict.
The trial court did not err in refusing to charge the jury on the defense of limitations. See Tex. Code Crim. Proc. Ann. arts. 36.14 (West 2007), 36.19 (West 2006); Huizar v. State, 12 S.W.3d 479, 483 (Tex. Crim. App. 2000). Article 36.14 provides in part that the trial court shall include in the jury charge "the law applicable to the case." See Tex. Code Crim. Proc. Ann. art. 36.14. Because of the stipulation, it was unnecessary for the trial court to include in the jury's instructions any limitations issue. Appellant's issues one and two are overruled.
In issue three, Davis maintains he was not afforded effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. He argues his counsel failed to discover that the last paragraph of the indictment was a tolling paragraph, failed to file a timely motion to quash the indictment based on limitations, and erroneously stipulated that the court had jurisdiction when prosecution for the offense was barred by limitations.
The Sixth Amendment to the Constitution of the United States confers a right to effective representation by counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An appellate court presented with a claim of ineffectiveness conducts a review in the light of the "strong presumption that [trial] counsel's conduct falls within the wide range of reasonable professional assistance[.]"Id. at 689. Under Strickland, the defendant must show that counsel's representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for counsel's deficiency, the result would have been different. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland, 466 U.S. 668). "To overcome 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. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
The record shows defense counsel agreed to stipulate that Davis was under indictment for the same conduct in exchange for the State's agreement to strike the tolling paragraph so it would not be read to the jury. Counsel's understanding is apparent from the record. Furthermore, Davis has not shown in reasonable probability under the circumstances that the result would have been different but for counsel's conduct. See id. at 740 (citing Strickland, 466 U.S. 668). Issue three is overruled.
RIGHT OF CONFRONTATION
Davis contends he was denied his constitutional right of confrontation and cross-examination. See U.S. Const. amend. VI. The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" Id. The Confrontation Clause is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403-05, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). A concern of the Confrontation Clause is "to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Davis asserts that the trial court erred in admitting, over his objection, out-of-court statements of a child made to a police officer near the scene of the offense. Davis argues the child's statements are testimonial.
The Confrontation Clause bars the admission of testimonial statements of a witness who does not appear at trial, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Under Crawford, the Confrontation Clause analysis will usually turn on the question of whether a particular statement is testimonial in nature. Lagunas v. State, 187 S.W.3d 503, 515 (Tex. App.—Austin 2005, pet. ref'd). To determine if a statement is testimonial, we must decide whether it had "a primary purpose of creating an out-of-court substitute for trial testimony." Michigan v. Bryant, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93, 107 (2011).
When the first responding officer arrived at the scene, he spoke with the complainant, an adult witness, and a ten-year-old boy. The complainant was dazed and upset and the adult witness was still shaken from the event. The ten-year-old boy had witnessed the assault from nearby and was so affected by the incident that he could not recall his date of birth. The perpetrator had retreated and, at the time the boy spoke with the officer, had not yet been apprehended.
Though the child was approached by a uniformed officer, the child's age and emotional state suggest that his statements to the officer were non-testimonial. Lagunas, 187 S.W.3d at 519 & n.22 (declining to decide if child declarant's statements should be evaluated from an objective or subjective point of view because in either case they were determined to be non-testimonial based on the context in which the statements were made). The boy was reacting to what he had just perceived and was shaken. The primary purpose of the child's statement was not to create an out-of-court substitute for trial testimony, but was instead to assist the officer in gaining control of an ongoing situation. See id. at 519-20. Issue four is overruled. The trial court's judgment is affirmed.
AFFIRMED.
_________________________
DAVID GAULTNEY
Justice
Do Not Publish Before Gaultney, Kreger, and Horton, JJ.