Opinion
No. 05-14-01374-CR
01-26-2016
GAYLON LAVON DAVIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas
Trial Court Cause No. F-1233585-K
MEMORANDUM OPINION
Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Fillmore
A jury found Gaylon Lavon Davis guilty of family violence assault, enhanced by a prior family violence assault conviction. See TEX. PENAL CODE ANN. § 22.01(a)(1) & (b)(2)(A) (West Supp. 2015); TEX. FAM. CODE ANN. § 71.0021 (West Supp. 2015) & § 71.005 (West 2014). The trial court assessed punishment, enhanced by a prior felony conviction of aggravated assault, of twenty years' imprisonment. In three points of error, Davis asserts (1) he was denied due process of law when the trial court assessed punishment in Davis's absence; (2) if this Court finds Davis's due process complaint was not properly preserved, he was denied effective assistance of counsel; and (3) punishment of twenty years' imprisonment is outside the range of punishment for a third-degree felony. We modify the judgment to reflect Davis pleaded not true to the enhancement paragraph in the indictment and to reflect September 30, 2014, as the date sentence was imposed. As modified, we affirm the judgment.
Background
Davis was charged with family violence assault of Tracy Harrison, enhanced by a previous family violence assault conviction. See TEX. PENAL CODE ANN. § 22.01(a)(1) & (b)(2)(A); TEX. FAM. CODE ANN. §§ 71.0021, 71.005. Davis pleaded not guilty. Although Davis testified at trial that he was not in Harrison's presence at the time the assault allegedly occurred, on appeal he does not challenge the sufficiency of the evidence to support his conviction for the assault or the jury's finding that he had been previously convicted of family violence assault on April 19, 2004. Therefore, we dispense with a lengthy recitation of the underlying facts.
According to the evidence at trial, throughout the day of December 25, 2011, Davis, Harrison's boyfriend who lived with her at her son's apartment, assaulted her by slapping and hitting her in the head and face with his hands and a broom handle. As a result of Davis repeatedly striking her, Harrison's face was swollen and bloodied, her eyes were severely swollen, and she received medical attention for her injuries, including stitches to repair her lacerated mouth and tongue.
Davis appeared for trial on August 19, 2014, through August 21, 2014. The jury began deliberations the afternoon of August 21, 2014, and adjourned to continue its deliberations the following day. The jury reached its verdict on guilt sometime around the lunch break on August 22, 2014. However, Davis voluntarily absented himself from court and did not appear for the reading of the jury's verdict. In Davis's absence, the trial court read the jury's verdict in open court.
Davis had elected to have punishment assessed by the trial court. Following the reading of the jury's verdict, the trial court proceeded with the punishment phase of trial. On Davis's behalf, his counsel entered a plea of not true to the enhancement paragraph in the indictment concerning an alleged prior aggravated assault felony conviction. The record contains the following regarding Davis's voluntary absence from the trial:
The Court: Okay. All right. Once again, for the record, Mr. Davis has voluntarily made himself absent and we have tried to contact him. Let's talk about what your efforts have been to contact him and his responses.
Defense Counsel: Your Honor, when I was contacted by, I believe, Rita, I was in the break room. She popped her head in - that's where I informed the Court I would be. She said that she believed they had a verdict. We had just come back from lunch. My client was out, I believe, in the exterior of the building in his car, somewhere with his family members. I called him and said that we have - we're needed upstairs, is basically what I told him. I did not tell him there was a verdict. I just told him that we were needed upstairs.
I came in here, waited several minutes. Later, when he did not show up, the prosecutor asked me was he around. I attempted to call him again. He has not answered any of my calls since then, and I've been calling the same phone number. And if you would like that number, I can provide it to the Court.
The Court: I can try it one time.
***
The Court: The Court has made every effort to contact Mr. Davis. Mr. Davis has made himself unavailable, so we will proceed without him.
The State's read the enhancement paragraph to which you have pled not true, so we will proceed with proving up those paragraphs [sic] and going ahead with the punishment.
Without objection, judgments of Davis's prior convictions and sentences were admitted in evidence. Those judgments included two family violence assault convictions involving Davis striking the complainants in the head with his hands and a third degree felony conviction for aggravated assault with serious bodily injury involving Davis striking the complainant with a board. The State argued that, therefore, Davis's punishment was enhanced from a third degree felony to a second degree felony, with a punishment range of two to twenty years' imprisonment. At the conclusion of the punishment phase of trial on August 22, 2014, the trial court assessed punishment:
The Court: All right. I assess Mr. Davis' punishment at 20 years confinement in the Institutional Division. At this point, since he's made himself unavailable, once he is found, the Sheriff of Dallas County shall hold him until the authorities from the Institutional Division of Texas can come and retrieve him.Sometime later, Davis was apprehended, and the trial court pronounced sentence in open court in the presence of Davis and his attorney on September 30, 2014:
The Court: All right. We had a jury trial on the 20th of August. It looks like on the 22nd of August you were not here and the jury found you guilty. So in absentia, because you made yourself voluntary [sic] absent, hearing all the evidence in punishment, I assessed your punishment at 20 years confinement in an Institutional Division of the Texas Department of Corrections.The trial judge signed an entry in the record dated and filed January 12, 2015, which provides:
Since you're back now, I'm just pronouncing sentence in person. So I'm going to write that you are in custody and that we've pronounced sentence in person, not just in absentia. And now you will be held by the Sheriff of Dallas County until the Texas Department of Corrections can pick you [sic] and then your 20 years will commence.
On August 22, 2014 the defendant Gaylon Davis was found guilty by the jury. Deft left court and never returned. After hours of waiting, defendant was sentenced in absentia. A warrant was issued for his arrest, and on 9/27/14 deft was apprehended on Cause #F-1233585 K. On 9/30/14 the defendant was brought before me and I at which time, orally pronounced his sentence at 20 years penitentiary. Judgment, dated 8/22/14 is correct.
On appeal, Davis complains of the punishment assessed of twenty years' imprisonment. He urges this Court to reverse the judgment and remand to the trial court for a new punishment hearing.
Punishment Assessed in Davis's Voluntary Absence
In his first point of error, Davis complains he was denied due process of law when the trial court assessed punishment in his absence. Davis contends his absence at the punishment phase of trial was involuntary because he did not receive notice the punishment phase would begin immediately after the verdict was received by the trial court. Davis acknowledges "it can be reasonably inferred from the record that [Davis] voluntarily absented himself from the remainder of the guilt/innocence phase of trial when the jury was out deliberating and his attorney called him and told him he was needed in court." But Davis asserts there is no indication in the record that he had notice the punishment hearing would take place immediately following the jury's verdict in the guilt/innocence phase of trial. The State responds that Davis has not preserved this complaint for appellate review. In the alternative, the State argues the trial court did not err by assessing punishment in Davis's absence.
Davis did not complain about the sentencing procedure either during the punishment phase of trial or in a motion for new trial. Most appellate complaints must be preserved by a timely request for relief at the trial court level. See TEX. R. APP. P. 33.1(a)(1); Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013). Even claims involving constitutional error, including claims that due process rights have been violated, may be waived by failing to object. See Anderson v. State, 301 S.W.3d 276, 279-80 (Tex. Crim. App. 2009) (rejecting "due process" exception to error preservation requirement); Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002). By failing to raise his due-process complaint in the trial court, Davis has waived the issue for appeal. We resolve Davis's first point of error against him.
See also Crawley v. State, No. 05-08-01067-CR, 2009 WL 1664951, at *7 (Tex. App.—Dallas June 16, 2009, no pet.) (not designated for publication) (appellant did not complain that sentencing procedure violated his right to due process during punishment hearing or in motion for new trial; by failing to raise his complaint in trial court, appellant waived the issue for appeal).
Ineffective Assistance of Counsel
In his second point of error, Davis contends that if we conclude he has failed to preserve his denial-of-due-process complaint as lodged in his first point of error, he was denied effective assistance of counsel because his attorney did not object to the trial court proceeding with the punishment phase of trial in Davis's absence. The State responds that Davis fails to establish ineffective assistance of counsel.
Davis 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). To prevail on a claim of ineffective assistance of counsel, Davis must show that his trial counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceeding 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). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffective assistance claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate the claim has merit. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Direct appeal is usually an inadequate vehicle for raising an ineffective assistance claim because the record is generally undeveloped. Menefield, 363 S.W.3d at 592-93. Counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Id. at 593.
Davis did not file a motion for new trial asserting his counsel had been ineffective. Accordingly, trial counsel did not have an opportunity to explain himself in the trial court. Because there is no evidence in the record concerning his trial counsel's actions, Davis has not overcome the strong presumption of reasonable assistance and has not established his trial counsel's conduct was so outrageous that no competent attorney would have engaged in it. See Menefield, 363 S.W.3d at 593.
Further, on this record, Davis has failed to establish he was prejudiced by his counsel's alleged error. On appeal, Davis speculates that had he been present during the punishment phase of trial, he likely would have testified, and a reasonable probability exists the trial court would have assessed a lesser punishment than that actually received. Davis's attempt to shift to his trial counsel responsibility for the trial court's continuation of the punishment phase of trial in Davis's voluntary absence is misguided.
A determination of the voluntariness of a defendant's absence from trial is within the sound discretion of the trial court. See Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984). In most cases, the validity of the trial court's decision that a defendant's absence is voluntary must be determined in hindsight. Id. Accordingly, when reviewing the validity of a trial court's decision to proceed to trial in a defendant's absence, an appellate court considers both the evidence that was before the trial court as well as evidence that develops subsequent to the court's ruling. Id. Absent any evidence from the defendant to refute the trial court's determination that his absence was voluntary, the trial court's finding should not be disturbed. Id.
See also Stewart v. State, No. 05-96-00128-CR, 1997 WL 524154, at *5 (Tex. App.—Dallas Aug. 26, 1997, no pet.) (not designated for publication).
See also Stewart, 1997 WL 524154, at *5; Burr v. State, No. 05-93-00110-CR, 1994 WL 156279, at *2 (Tex. App.—Dallas Apr. 28, 1994, pet. ref'd) (not designated for publication).
Here, the trial judge was informed Davis was outside the courthouse during the jury's deliberation on his guilt or innocence and did not return to the courthouse when his attorney contacted him by telephone and advised him he was "needed" in the courtroom. The trial judge knew Davis had not answered subsequent phone calls made to his cell phone by his attorney after Davis failed to appear in the courtroom. The record reflects the trial court also attempted to reach Davis on his cell phone without success. See Aguirre v. State, 695 S.W.2d 793, 794 (Tex. App.—San Antonio 1985, no pet.) (trial court was correct in proceeding with trial where appellant never communicated with court or otherwise advised regarding reason for his absence). Further, Davis did not offer any subsequent evidence that would show his absence from the punishment phase of his trial had been involuntary; Davis filed no motion for new trial asserting any such argument. On this record, the trial court did not abuse its discretion in finding Davis voluntarily absented himself from the punishment phase of trial. Article 33.03 of the code of criminal procedure provides that in all felony prosecutions, the defendant must be personally present at the trial. TEX. CODE CRIM. PROC. ANN. art. 33.03 (West 2006). "[W]hen the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before the jury, the trial may proceed to its conclusion." Id.
See Burr, 1994 WL 156279, at *2.
During Davis's voluntary absence, his trial counsel entered a plea of not true to the aggravated assault enhancement paragraph of the indictment. However, the State's evidence of Davis's multiple prior convictions of family violence assault and conviction of felony aggravated assault were admitted. Davis had testified at the guilt phase of trial; the jury found incredible Davis's testimony that he was not in Harrison's presence on the date of the assault and that he did not inflict Harrison's injuries depicted in photographs, referenced in medical records, and testified to by other witnesses. This record does not support Davis's speculation that, had he not voluntarily absented himself from the punishment phase of trial, he would have testified and his testimony would have resulted in the trial court imposing a lesser punishment.
We conclude Davis has not met his burden of proving by a preponderance of the evidence that his trial counsel was ineffective. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813. We resolve Davis's second point of error against him.
Finding Enhancement Paragraph True
Davis asserts he was convicted of a third-degree family violence assault because the trial court did not announce a finding of true to the enhancement paragraph in the indictment alleging a prior felony aggravated assault conviction, which would have resulted in punishment for a second-degree felony conviction for the family violence assault of Harrison. Therefore, in his third point of error, Davis contends the punishment of twenty years' imprisonment assessed by the trial court was outside the range of punishment for the third-degree felony conviction. The State responds that Davis waived this complaint on appeal by failing to object at trial to the purported failure of the trial court to make an oral finding the enhancement paragraph was true. The State further argues Davis's complaint has no merit, because the trial court was not required to orally pronounce the finding of true to the enhancement paragraph.
The punishment range for a third degree felony is two to ten years' imprisonment. TEX. PENAL CODE ANN. § 12.34(a) (West 2011) The punishment range for a second degree felony is two to twenty years' imprisonment. Id. § 12.33(a) (West 2011).
Davis was charged with a third degree felony under section 22.01(b)(2)(A) of the penal code. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A). Other than exceptions in section 12.42(c)(2) of the penal code not applicable here, the punishment for a third degree felony is increased to that of a second degree felony "if it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a). . . ." TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2015). For Davis's sentence to be enhanced based on a prior felony conviction, the State had the burden to prove his prior conviction was final under the law, and he was the person convicted of that offense. See Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984). The State offered evidence during the punishment phase of trial of judgments for several prior convictions, including prior family violence assaults and a final prior aggravated assault felony conviction. The evidence was admitted without objection. Although the trial court did not make an oral finding of true to the prior felony conviction enhancement paragraph in the indictment, the judgment reflects a finding of true.
When, as here, the trial court alone assesses a defendant's punishment, the court is not required to read an enhancement paragraph of the indictment or the finding concerning the enhancement paragraph to the defendant. Garner v. State, 858 S.W.2d 656, 659 (Tex. App.—Fort Worth 1993, writ ref'd) (citing Reed v. State, 500 S.W.2d 497, 499 (Tex. Crim. App. 1973)). "Although it is preferred that trial courts read the enhancement paragraphs orally and find them to be true or not true on the record, a trial court does not err by not doing so." Seeker v. State, 186 S.W.3d 36, 39 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) (citing Garner, 858 S.W.2d at 660). A trial court does not commit error by failing to announce its enhancement findings in open court prior to sentencing so long as it appears from the record that the court found the enhancement true and entered the sentence accordingly. See Meineke v. State, 171 S.W.3d 551, 557 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (citing Garner, 858 S.W.2d at 660).
See also Epps v. State, Nos. 05-07-00040-CR, 05-07-00041-CR, & 05-07-00042-CR, 2007 WL 2446546, at * 3 (Tex. App.—Dallas Aug. 17, 2007, no pet.) (not designated for publication).
See Saldana v. State, No. 05-15-00059-CR, 2015 WL 6602073, at *4 (Tex. App.—Dallas Oct. 30, 2015, pet. filed) (mem. op., not designated for publication); see also Williams v. State, Nos. 05-14-00452-CR & 05-14-00453-CR, 2015 WL 4656645, at *5 (Tex. App.—Dallas Aug. 6, 2015, no pet.) (mem. op., not designated for publication) (concluding trial court can implicitly find enhancement allegations to be true).
We conclude that the trial court did not err by failing to orally pronounce its enhancement finding in open court. The trial court implicitly found the enhancement paragraph in the indictment to be true and sentenced Davis within the correct punishment range for a second degree felony. We resolve Davis's third point of error against him.
Judgment Modifications
The State asserts the judgment should be modified to accurately reflect Davis pleaded not true to the enhancement paragraph in the indictment. Where, as here, the record provides the necessary information to correct inaccuracies in a trial court's judgment, we have the authority to reform the judgment to speak the truth. See TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd). Our review of the record confirms Davis pleaded not true to the enhancement paragraph in the indictment. Accordingly, we modify the judgment to reflect that David pleaded not true to the enhancement paragraph in the indictment.
As is set out above, Davis voluntarily absented himself from trial, and the punishment phase of trial was conducted in his absence. The trial court assessed Davis's punishment on August 22, 2014, in Davis's absence. Davis was subsequently apprehended and his sentence was pronounced in open court in his presence on September 30, 2014. The judgment incorrectly states sentence was imposed on August 22, 2014. We further modify the judgment to correctly reflect September 30, 2014 as the date sentence was imposed.
With exceptions not applicable here, the code of criminal procedure provides that sentence shall be pronounced in the defendant's presence. TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(a) (West Supp. 2015).
The record reflects that due to an unspecified "clerical error," on January 5, 2015, the trial court again assessed punishment and pronounced sentence of twenty years' imprisonment on the record in open court in the presence of Davis and his attorney. The September 30, 2014 pronouncement of sentence is the operative pronouncement of sentence. See Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (oral pronouncement of the sentence in the presence of defendant is necessary because imposition of sentence is crucial moment when all parties are physically present at sentencing hearing and able to hear and respond to imposition of sentence; "it is pronouncement of sentence that is the appealable event, and the written sentence or order simply memorializes it and should comport therewith") (quoting Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998)); see also Delbosque v. State, Nos. 05-04-01500-CR, 05-04-0501-CR, 05-01-01502-CR, 05-04-01503-CR & 05-04-01504-CR, 2006 WL 1102632, at *4 (Tex. App.—Dallas Sept. 27, 2006, pet. ref'd) (not designated for publication) (although trial court sentenced appellant in absentia, appellate timetable did not begin to run until after appellant was apprehended and trial court pronounced sentence in his presence).
Conclusion
The judgment of the trial court is modified to reflect that Davis pleaded not true to the enhancement paragraph in the indictment and to reflect September 30, 2014 as the date sentence was imposed. As modified, the judgment is affirmed.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 141374F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F-1233585-K.
Opinion delivered by Justice Fillmore, Justices Myers and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect that Gaylon Davis pleaded "Not True" to the enhancement paragraph in the indictment and "Date Sentenced Imposed" was September 30, 2014. As MODIFIED, the judgment is AFFIRMED. Judgment entered this 26th day of January, 2016.