No. 05-10-00250-CR
Opinion issued May 27, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 2-09-371.
Before Justices MURPHY, FILLMORE, and MYERS.
Opinion By Justice FILLMORE.
A jury convicted George Calvin Davoust of failing to comply with sex offender registration requirements and assessed punishment of eight years' imprisonment and a $10,000 fine. In four points of error, Davoust argues (1) the trial court erred by preventing Davoust from establishing a defense during the guilt-innocence phase of the trial and by overruling his objection to the State's closing argument during the punishment phase of the trial, and (2) his trial counsel was ineffective by failing to object during the punishment phase of the trial to the admission of a photograph album and to testimony about extraneous offenses. We modify the trial court's judgment to reflect Davoust was convicted of violating article 62.102 of the code of criminal procedure and, as modified, affirm the trial court's judgment.
Background
Because Davoust has not challenged the sufficiency of the evidence to support the conviction, we include only those facts relevant to Davoust's points of error on appeal.
Davoust was indicted in Collin County on five charges of indecency with a child by contact. In December 1997, Davoust pleaded no contest to the charges. The trial court deferred adjudicating Davoust's guilt and placed him on community supervision for ten years on each offense. Davoust was, therefore, required to register as a sex offender for life. See Tex. Code Crim. Proc. Ann. art. 62.001(6)(A) (West Supp. 2010) (defining sexually violent offense to include indecency with a child); art. 62.101(a)(1) (West 2006) (requiring person with an adjudication for a sexually violent offense to register for life). Because Davoust received an order of deferred adjudication two or more times for a sexually violent offense, he was required to report to the local law enforcement authority designated as his primary registration authority every ninety days. See id. art. 62.058 (West 2006). Among other requirements, Davoust was required to report any change of address at least seven days before the intended change. See id. art. 62.055(a) (West Supp. 2010). He was also required, within seven days of moving to a new address, to report in person to the local law enforcement authority in the municipality or county in which the new residence was located. Id. In September 1999, Davoust moved to 2825 Guthrie Drive in Garland and registered as a sex offender with the Garland police department. In August 2005, Davoust met Patricia Lindberg. Although there was contradictory evidence regarding Davoust's residence, the jury heard testimony that by May 2006, Davoust was living with Lindberg in her home in Rockwall. Davoust did not notify the Rockwall police department that he was living with Lindberg. Rather, through June 2009, he continued to report to the Garland police department and continued to list 2825 Guthrie Drive as his address. The jury convicted Davoust of failing to comply with sex offender registration requirements, and Davoust brought this appeal. Preclusion of Defense
In his fourth point of error, Davoust asserts the trial court erred by excluding evidence of his defense that he was prosecuted under the wrong statute. Davoust contends he should have been prosecuted for violating article 62.059 of the code of criminal procedure by failing to register as a person who regularly visited a location, rather than for violating article 65.055 by failing to register a change in address. Davoust asserts the two statutes are in pari materia, he had a right to be prosecuted under the narrower statute, and he was entitled to a jury charge on the issue. Statutes that deal with the same general subject, have the same general purpose, or relate to the same person, thing, or class are considered to be in pari materia even if they contain no reference to each other or were passed at different times or in different sessions of the legislature. Azeez v. State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008) (citing Cheney v. State, 755 S.W.2d 123, 126 (Tex. Crim. App. 1988)). The two statutes must have been enacted with the same purpose in mind for the doctrine to apply. Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim App. 2000). However, two statutes are not in pari materia simply because they "might, in some situations, apply to the same conduct." Lomax v. State, 233 S.W.3d 302, 312 (Tex. Crim. App. 2007). When a general statute and a specific statute are in pari materia and irreconcilably conflict, due process and due course of law dictate that the defendant be prosecuted under the specific statute. Azeez, 248 S.W.3d at 192; Mills v. State, 722 S.W.2d 411, 414 (Tex. Crim. App. 1986). However, this right may be waived if not timely raised in the trial court. See Azeez, 248 S.W.3d at 193. During trial, Davoust attempted to convince the jury that, while he may have been guilty of failing to register as a regular visitor to Lindberg's house, there was a reasonable doubt that Davoust had changed his residence. However, he did not request any relief from the trial court either through a motion to quash the indictment, a motion for directed verdict, or a motion for new trial on the grounds that article 62.059 and 65.055 were in pari materia and that he should have been charged under article 62.059. See Azeez, 248 S.W.3d at 193 ( in para materia argument can be preserved through motion to quash, if error is apparent on face of charging instrument, or through motion for directed verdict or motion for new trial). Accordingly, Davoust has waived any claim on appeal that the statutes were in pari materia and he was charged under the wrong statute. See Tex. R. App. P. 33.1(a)(1). We next turn to Davoust's claim that an evidentiary ruling by the trial court prevented him from asserting the defense that he was charged under the wrong statute. We review the trial court's decision to exclude evidence for an abuse of discretion. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). "We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's judgment if it lies within the zone of reasonable disagreement." Id. Davoust's complaint centers around his cross-examination of Detective Kevin Tilley, a Rockwall police officer whose job responsibilities included registering sex offenders. After questioning Tilley about the statutory differences between failing to register as a frequent visitor and failing to register a change in residence, Davoust's counsel asked Tilley, "And you would — you do the one that's easier of the two to get so that you can get a conviction. Don't you do that sometimes?" Tilley responded that he did not know if "it's the easier one." Davoust's counsel then asked, "The one that's easier to prove. It's the same conviction, same violation." The trial court sustained the prosecutor's objection that "all of this" is irrelevant. Davoust asserts the trial court's ruling prevented him from showing that "the visiting provision that he had violated was a different prohibition than the one charged in the indictment." We fail to see how Tilley's opinion about which charge was "easier to prove" was relevant to whether Davoust was guilty of failing to register a change of address. See Tex. R. Evid. 401 ("relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). Accordingly, the trial court did not abuse its discretion by excluding the opinion. Further, even if the trial court erred by excluding Tilley's opinion, the trial court's exclusion of the evidence was harmless. Davoust argues the exclusion of the evidence violated his constitutional right under the Sixth Amendment to the United States Constitution and Article I, section 10 of the Texas Constitution to present a defense. However, the exclusion of a defendant's evidence is "constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). In other words, that the defendant is unable to present his case to the extent and in the form desired does not rise to constitutional error when the defendant is not prevented from presenting the substance of his defense to the jury. Id. at 666. When the defendant is able to present the substance of his defense, the proper harm analysis is conducted under rule of appellate procedure 44.2(b). Potier, 68 S.W.3d at 666; see also Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005). Under that analysis, "[w]e examine the record as a whole, and if we are fairly assured that the error did not influence the jury or had but a slight effect, we conclude that the error was harmless." Ray, 178 S.W.3d at 836; see also King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (error affected defendant's substantial right pursuant to rule 44.2 when error had "a substantial and injurious effect or influence in determining the jury's verdict"). Here, the trial court's exclusion of Tilley's opinion about which offense was easier to prove did not prevent Davoust from presenting his defense that he should have been charged with failure to register as a frequent visitor to Lindberg's home. In his opening statement, Davoust's counsel told the jury that "residence" and "frequently visits" had definite statutory meanings and that, during the course of the trial, the jury would learn the difference between the two terms. He stated the State had elected to "say that this was a residence." Because the State had "chosen that," Davoust was going to ask the jury to find "that this was not his residence — it was a place of [sic] where he visited." Davoust's counsel questioned Tilley and Detective O.J. Inmon, a police officer with the Garland police department whose job duties included registering sex offenders, about the statutory requirements for registering as a frequent visitor and registering a change in residence. He questioned both Tilley and Inmon about whether Davoust's conduct constituted a failure to register as a frequent visitor as opposed to a failure to register a change of residence. He cross-examined the State's witnesses about whether Davoust lived in Lindberg's house in Rockwall, as opposed to visiting the house. He also questioned Davoust's witnesses about whether Davoust continued to live in Garland. In closing argument, Davoust's counsel stated that "all through the trial," he had been "talking about the different issues" with regard to the "failure to register your residence as opposed to frequently visiting a location." He then argued that, while the evidence might have established that Davoust failed to register as a frequent visitor to Lindberg's house, he was not charged with that offense and the evidence did not establish beyond a reasonable doubt that Davoust had moved to Lindberg's house. Davoust's counsel then argued the State had elected to try the case as a change in residence, but should have charged Davoust "with the right thing, and that is with frequently visiting a location." He then summarized his argument: I want to ask you to find him not guilty due to the fact that the law states that he is to be found not guilty. There is a reasonable doubt. . . . Only evidence of the offense has come from this witness stand, and that offense has a reasonable doubt as to residency. It has no reasonable doubt as to frequent visitation. If that's the case, let's charge him with that and try him with that. Throughout trial, Davoust raised the issue that, although he might have been guilty of failing to register as a frequent visitor, there was reasonable doubt as to whether he had moved to Lindberg's house in Rockwall. He was "able to present his version of the events to the jury albeit not to the extent and in the form he desired." Williams v. State, 273 S.W.3d 200, 233 (Tex. Crim. App. 2008). Accordingly, we cannot say the exclusion of Tilley's opinion effectively prevented Davoust from presenting his defense and, therefore, we analyze any error by the trial court as non-constitutional error under rule of appellate procedure 44.2(b). A review of the record as a whole reveals Davoust was able to fully litigate whether he was living with Lindberg or simply visiting her. We cannot conclude the trial court's exclusion of Tilley's opinion about which offense was easier to prove had a substantial or injurious effect or influence on the jury. See Ray, 178 S.W.3d at 836; King, 953 S.W2d at 271. Therefore, any error by the trial court in excluding Tilley's opinion was harmless. See Tex. R. App. P. 44.2(b). We overrule Davoust's fourth point of error. Jury Argument
In his third point of error, Davoust argues the trial court erred by overruling his objection to the State's closing argument in the punishment phase of the trial. During closing argument, the prosecutor stated, as to Davoust receiving deferred adjudication on the underlying offenses of indecency with a child, that "not many people get that kind of opportunity on that kind of charge for what he did. I mean, that's just not the kind of case everybody gets a second chance on." Davoust's counsel objected, "Your Honor, I'm going to object to that. That's outside the scope of the evidence in this case, 'not very many people get that opportunity.' It's just beyond the evidence. Not a reasonable deduction from the evidence." The trial court stated, "Argue on the record. Let's proceed." To preserve error regarding allegedly improper jury argument, a defendant must make a timely and specific objection and obtain an adverse ruling from the trial court. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) ("defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal"); Orsag v. State, 312 S.W.3d 105, 119 n. 5 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd). The trial court's instruction to "argue in the record," in response to an objection that argument goes beyond the record, does not constitute a ruling on the objection. Washington v. State, 127 S.W.3d 111, 116 (Tex. App.-Houston [1st Dist.] 2003, no pet.). Because Davoust did not obtain an adverse ruling from the trial court on his objection, he did not preserve this point of error for appellate review. See Tex. R. App. P. 33.1(a); Cockrell, 933 S.W.2d at 89. We overrule Davoust's third point of error. Ineffective Assistance of Counsel
In his first two points of error, Davoust contends his trial counsel was ineffective during the punishment phase of the trial by failing to object to a photograph album taken from Davoust's vehicle when he was arrested on the indecency with a child charges and to hearsay testimony about extraneous offenses. To be entitled to a new trial based on an ineffective assistance of counsel claim, a defendant must show that counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). The first prong requires the defendant to show counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88, 689; Lane, 303 S.W.3d at 707. The second prong requires the defendant to show there is a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Lane, 303 S.W.3d at 707. A defendant's failure to satisfy one prong negates the need to consider the other prong. Strickland, 466 U.S. at 697; Lane, 303 S.W.3d at 707. In determining whether a defendant has met his burden, we consider the totality of the representation and the particular circumstances of each case. Lane, 303 S.W.3d at 707. We strongly presume counsel's conduct fell within the wide range of reasonable professional assistance and do not judge counsel's actions in hindsight. Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The fact that another attorney might have pursued a different strategy at trial is not sufficient to prove counsel was ineffective. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004). Our review of counsel's performance is highly deferential and begins with the assumption that counsel's conduct fell within the wide range of reasonable professional assistance. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). We commonly assume a strategic motive if any can be imagined and conclude counsel's performance was deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Id. An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate that the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) ; see also Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011), pet. for cert. filed, (No. 10-10193, Apr. 7, 2011). In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Further, counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Rylander, 101 S.W.3d at 111; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Because the reasonableness of trial counsel's choices often involve facts that do not appear in the appellate record, an application for writ of habeas corpus is generally the more appropriate vehicle to raise ineffective assistance of counsel claims. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). In order to argue successfully that his trial counsel's failure to object to the complained-of evidence amounted to ineffective assistance, Davoust must show the trial court would have committed error in overruling the objection. See Martinez, 330 S.W.3d at 901; Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). In all likelihood, the photograph album was admissible. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2010) (in punishment phase, trial court may admit any evidence it deems relevant, including defendant's prior criminal record, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by defendant or for which defendant could be held criminally responsible). Further, trial counsel examined Davoust extensively about the photographs and argued in closing that the album contained pictures of "family members, of friends, of women that he dated before." He further argued the children depicted in the pictures were his "own children" and "not potential victims." Trial counsel used the album, along with other evidence, to argue the State was attempting to unfairly manipulate the evidence to cast Davoust in a negative light. Accordingly, we can imagine a trial strategy under which Davoust's counsel would choose not to object to the admission of the photograph album into evidence. Davoust also asserts trial counsel was ineffective by failing to object on the grounds of hearsay and the Confrontation Clause to testimony by Detective Michael Johnson about his investigation of Davoust's conduct with the two children who were the complainants in the underlying indecency with a child offenses as well as with other children. The State had the right to prove these extraneous offenses to the jury for consideration during the punishment deliberations. See id. If Davoust's trial counsel had objected to the officer's testimony about the extraneous offenses, the State might have chosen to introduce the evidence directly through the children. While there is no evidence of trial counsel's strategy, it is possible counsel made a strategic decision not to object to hearsay or to assert a right to confrontation in order to avoid damaging testimony from Davoust's victims. See Ortiz v. State, 93 S.W.3d 79, 95 (Tex. Crim. App. 2002) (trial counsel "might have believed that such direct evidence would have a more powerful and adverse effect on the jury than the evidence the State was content to offer"). Although Davoust filed a motion for new trial, he did not raise ineffective assistance of counsel in the motion and did not have a hearing on the motion. Consequently, Davoust's trial counsel has not been given an opportunity to explain his actions in failing to object to the complained-of evidence. Because the record provides no explanation for counsel's actions, and because we can "imagine" a strategic motive in counsel's failure to object to the evidence, we conclude Davoust has not met his burden of showing that trial counsel's performance fell below an objective standard of reasonableness. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."). We overrule Davoust's first two points of error. Modification of Judgment
Davoust was charged with a violation of article 62.102 of the code of criminal procedure by failing to comply with sex offender registration requirements. However, the trial court's judgment recites Davoust was convicted under section 65.102 of the penal code. We may modify the trial court's written judgment to correct a clerical error when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, on our own motion, we modify the trial court's judgment to reflect Davoust was convicted under article 62.102 of the code of criminal procedure. As modified, we affirm the trial court's judgment.