Opinion
NO. 09-10-00200-CR
03-21-2012
ARTHUR BERNALD DIRDEN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. 19993
MEMORANDUM OPINION
Arthur Bernald Dirden appeals his conviction for sexually assaulting "Sandy Doe," who was sixteen at the time of the alleged offense. See Tex. Penal Code Ann. § 22.011(2)(A) (West 2011). Dirden contends the trial court erred in overruling his Batson challenges and in failing to dismiss the array. Dirden also argues the trial court erred during the punishment phase of his trial by allowing the State to question a witness about an extraneous offense that Dirden had allegedly committed. Additionally, Dirden asserts a claim alleging that he received ineffective assistance of counsel. Finding no error, we affirm the trial court's judgment.
To protect the minor's privacy, the minor was identified at trial using the pseudonym "Sandy Doe." See Tex. Const. art. I, § 30 (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process"). We do so as well.
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Background
According to Sandy, Dirden took her into a bedroom, locked the door, and pressured her into having sex. Dirden also testified at the trial. Dirden acknowledged having followed Sandy into a bedroom because she wanted to go there, but on talking to her, Dirden explained that he got up and left after he became suspicious that Sandy was not eighteen. The testimony at the trial reflects that Dirden spoke to two police officers in the week following the alleged assault. Each officer testified that on speaking with Dirden, Dirden indicated that he had sex with Sandy, that the sex was consensual, and that Dirden said during the interview that he thought Sandy was eighteen.
Venire
In his first issue, Dirden advances two arguments relating to the selection of the jury. First, Dirden argues the trial court failed to grant his oral motion complaining about "the nonrepresentation of African American people in the panel," made before voir dire began. Second, Dirden contends that the trial court erred in overruling his Batson challenges to the State's exercise of several peremptory jury strikes.
Dirden's first argument—that the trial court should have dismissed the array before voir dire began based on his oral motion—was not properly preserved. The Texas Code of Criminal Procedure requires that all "challenges must be in writing setting forth distinctly the grounds of such challenge." Tex. Code Crim. Proc. Ann. art. 35.07 (West 2006). Further, when the defendant challenges the array, the defendant's challenge "must be supported by his affidavit or the affidavit of any credible person." Id. Dirden made his motion orally, not in writing. While Dirden filed a written motion that included a request to order a new jury panel after the jury was seated, his written motion alleges the State exercised strikes based on race; Dirden's written motion does not complain that the array from which the jury was to be selected failed to fairly represent a cross-section of the community. Additionally, Dirden's written motion is not supported by an affidavit, which is required by the Code of Criminal Procedure. See id. For these reasons, we conclude that Dirden's complaint that the trial court erred in failing to dismiss the array was not preserved for appellate review. See Stephenson v. State, 494 S.W.2d 900, 905 (Tex. Crim. App. 1973); Brokenberry v. State, 853 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd); see also Tex. R. App. P. 33.1.
Next, we address Dirden's argument that the trial court erred when it overruled his challenge to the State's using peremptory strikes against venire persons who were members of a minority race. See Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); see also Tex. Code Crim. Proc. Ann. art. 35.261 (West 2006). "The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits race-based jury selection." Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (citing Batson, 476 U.S. at 85). The Texas Court of Criminal Appeals has explained the Batson procedure as follows:
A Batson challenge generally gives rise to a three-step process. First, the defendant must make a prima facie case that a venire member was peremptorily excluded on the basis of race. Next, the prosecution must come forward with race-neutral reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's explanations. The burden of persuasion remains with the defendant to prove purposeful discrimination.Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003) (citations omitted). If the State proffers race-neutral explanations for its peremptory strikes, the defendant has the burden to convince the trial court that the prosecution's reasons were not race-neutral. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). The defendant's "failure to offer any real rebuttal to a proffered race neutral explanation can be fatal to his claim." Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). Generally, we will uphold a trial court's ruling on a Batson challenge unless the trial court's ruling is clearly erroneous. See Jasper, 61 S.W.3d at 421-22.
On appeal, Dirden challenges the State's use of strikes on venirepersons 4, 8, and 27. Before the jury selection was completed, Dirden challenged the State to explain why it had struck these three venirepersons. With respect to venireperson 4, the State explained that venireperson 4 had been arrested several times on charges concerning theft, and introduced venireperson 4's arrest record in support of that statement. The prosecutor also pointed to other jurors who were struck due to a record of arrests or convictions for crimes. With respect to venireperson 8, the prosecutor said that venireperson 8, during voir dire, indicated that "she would require proof beyond a reasonable doubt." The trial court accepted the State's explanations as to venirepersons 4 and 8 as being race-neutral and overruled Dirden's Batson challenges.
On appeal, Dirden also complains that the trial court erred in overruling his Batson challenge to venireperson 27. During voir dire, venireperson 27 indicated that if there was consent, he could not convict a defendant of sexual abuse of a child. At trial, the record reflects that the trial court granted the State's request to strike venireperson 27 for cause. During the trial, Dirden raised no objection to the trial court's decision granting the State's request to strike venireperson 27.
The party that unsuccessfully advanced a Batson challenge in the trial court must show on appeal that "the explanation given was merely a pretext for discrimination." Johnson, 68 S.W.3d at 649. On appeal, Dirden argues that the reason the State gave for striking venireperson 4 was pretextual because the State failed to strike venireperson 11, who was not a member of a minority race, as venireperson 11 also had a criminal record. However, venireperson 11's convictions were for driving while intoxicated, reckless conduct, and hunting at night, which are not crimes of moral turpitude. The evidence in the record allowed the trial court to reasonably conclude that the State struck other potential jurors based on that particular venireperson having a criminal history. Consequently, the trial court's ruling with respect to venireperson 4 was not clearly erroneous. See Jasper, 61 S.W.3d at 421-22.
With respect to venireperson 8, Dirden argues that venireperson 8 clarified her statement about requiring the State to prove its case "[b]eyond all doubt[,]" by stating that she could find Dirden guilty if the State proved its case beyond a reasonable doubt. We note that the prosecutor, in justifying his strike of venireperson 8, in addition to stating a concern that she would hold the State to a higher burden of proof, expressed concern that venireperson 11 indicated that she was a friend of Dirden's family. We conclude the trial court could reasonably accept the State's race-neutral explanations for exercising a strike on venireperson 11. Finally, Dirden did not challenge the trial court's decision to strike venireperson 27 for cause either at trial or on appeal. We hold that Dirden has failed to show the trial court's rulings were clearly erroneous. See Jasper, 61 S.W.3d at 421-22; see also Mathis v. State, 67 S.W.3d 918, 924-25 (Tex. Crim. App. 2002) (concluding that the trial court did not abuse its discretion in finding that defendant failed to carry his burden where the venireperson indicated that she needed proof beyond any doubt and the defendant did not point to any evidence showing the explanation to be a pretext). We overrule issue one.
Extraneous Offense
For convenience, we address Dirden's third issue before addressing his claim to having received ineffective assistance. In issue three, Dirden argues that the trial court erred by allowing the State to introduce evidence of an extraneous offense during the punishment phase of his trial. According to Dirden, the trial court should not have permitted the State to cross-examine Dirden's sister, Edith Johnson, about whether she was aware that Dirden had fired a weapon at their brother. On appeal, Dirden contends this evidence was not relevant, and he also argues that its probative value was substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403, 404.
Initially, we note that Dirden's arguments for excluding the evidence differ from the argument that he made at trial. At trial, Dirden's counsel objected that the evidence of the incident involving the discharge of the weapon was hearsay and that admitting it denied Dirden his right of confrontation. He did not object to the testimony on the ground that it was either irrelevant or, if deemed relevant, its probative value was outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403, 404.
In response to Dirden's trial objection, the State responded that the testimony was intended to impeach Johnson because she was "vouching for [Dirden's] character" by asserting that Dirden could successfully follow the terms of probation if the jury chose to recommend probation. The trial court responded that it agreed that the testimony could be used for that purpose, "as long as you stick to it that way." After requesting that his objection be noted, Dirden did not further object. When, in the jury's presence, the prosecutor asked whether Johnson had heard that Dirden had been charged for firing a weapon at his brother, Dirden's counsel objected only to the form of the question, adding "[t]hat's not what we discussed up at the bench."
Generally, to preserve error for review, a party's objection "must be specific enough so as to 'let the trial judge know what he wants, why he thinks himself entitled to it, and do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.'" Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). Neither a hearsay objection nor a confrontation clause objection preserves Rule 403 or 404 complaints. Based on this record, we conclude that Dirden's Rule 403 and 404 complaints are not preserved for our review. See Tex. R. App. P. 33.1(a).
However, had Dirden preserved error for our review, we would apply an abuse of discretion standard to review complaints regarding a trial court's ruling to admit evidence; to constitute reversible error, a trial court's decision to admit evidence will be reversed only when it is so clearly wrong that it lies outside the zone of reasonable disagreement. Hayden v. State, 296 S.W.3d 549, 553 (Tex. Crim. App. 2009); Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). The ruling to admit the evidence in Dirden's case occurred during the punishment phase of his trial. Evidence is admissible during the punishment phase if the trial court deems it relevant to sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (West Supp. 2011); see also Hayden, 296 S.W.3d at 552. Evidence is relevant to sentencing if it helps the jury in determining the appropriate sentence for a particular defendant in a particular case. Hayden, 296 S.W.3d at 552; Rodriguez, 203 S.W.3d at 842. The Court of Criminal Appeals has held that "when a defendant applies for community supervision (as the appellant did), the trial court may reasonably deem any character trait that pertains to the defendant's suitability for community supervision to be a relevant matter for the sentencer to consider." Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008).
We cite to the current version of the Texas Code of Criminal Procedure because no amendments affect the issues on appeal.
Dirden called Johnson to testify during punishment for the purpose of demonstrating to the jury that Dirden was a good candidate for probation. Johnson agreed that while she was aware of the allegation that Dirden had fired a shot at their brother, she still believed that Dirden could successfully complete probation. While the jury assessed a sentence of ten years, it recommended probating the sentence, and the trial court did so. Under the circumstances in this case, the trial court's ruling to admit the evidence regarding Dirden's discharge of a weapon was not clearly wrong nor does it appear to have harmed Dirden's desire to receive probation. See id. at 296-97 (holding that "both character evidence in the form of opinion testimony and extraneous-offense testimony may be admissible during trial, even if the opinion testimony is based on facts brought forth from the extraneous-offense testimony"). We overrule Dirden's third issue.
Assistance of Counsel
In his second issue, Dirden argues that he received ineffective assistance based on the manner that his trial counsel handled the motion to quash the array, conducted jury selection, and defended Dirden during the guilt/innocence and punishment phases of his trial.
We apply a two-pronged test to resolve ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish the ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his 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 of the trial would have been different. Strickland, 466 U.S. at 687; Garza, 213 S.W.3d at 347-48; Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. But, as Garza explained, our review of ineffective assistance claims is "highly deferential" to trial counsel, as we presume "that counsel's action fell within the wide range of reasonable and professional assistance." 213 S.W.3d at 348.
Additionally, when reviewing complaints about trial counsel's alleged deficiencies, an appellate court must "avoid the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813. Trial counsel's decisions are viewed with great deference when trial counsel's reasons for not undertaking a suggested strategy do not appear in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). While Dirden filed a motion for new trial, his motion does not assert an ineffective assistance claim and the trial court did not conduct an evidentiary hearing on the motion.
Generally, when faced with a record that does not include trial counsel's explanation of the strategy employed at trial, the record is deemed as being insufficient to demonstrate that trial counsel's conduct was ineffective, unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Additionally, any Strickland claim must be "'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Goodspeed, 187 S.W.3d at 392 (quoting Thompson, 9 S.W.3d at 813 (declining to speculate on counsel's failure to object to hearsay in light of a silent record).
Having carefully reviewed the record, we conclude that Dirden's complaints regarding his attorney require a more developed record: in this instance, Dirden's trial counsel should be provided the opportunity to explain his strategy. See Goodspeed, 187 S.W.3d at 392 (evaluating whether challenged conduct was "'so outrageous that no competent attorney would have engaged in it'"); see also Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) ("[A] reasonably competent counsel need not perform a useless or futile act[.]"). Because Dirden's ineffective assistance claim is not firmly founded in the record, we overrule issue two and affirm the trial court's judgment.
After the case had been fully briefed and set for submission, Dirden filed a motion contesting whether the court reporter accurately reported certain witnesses' testimony. Even if the witnesses' answers were comprised of the responses that Dirden contends the witnesses made, correcting the record, even if required, would not impact the resolution of the issues Dirden raises on appeal. Additionally, even if Dirden received permission to raise a new issue to challenge the sufficiency of the evidence supporting his conviction, and assuming Dirden succeeded in challenging the accuracy of the record, the record would, nevertheless, support his conviction under the standard of review applied to challenges to the sufficiency of the evidence. See Tex. Penal Code Ann. § 22.011(2)(A) (West 2011); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (holding that when reviewing the evidence, reviewing courts must give deference to the jury's responsibility to resolve any conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from facts). Therefore, under the circumstances, we will not require the trial court to conduct a hearing to determine whether Dirden's challenges to the accuracy of the record would succeed. See Tex. R. App. P. 34.6(e)(3).
AFFIRMED.
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HOLLIS HORTON
Justice
Do Not Publish Before McKeithen, C.J., Gaultney and Horton, JJ.