Opinion
NO. 01-15-00342-CR
05-12-2016
JAMES JESSE HUBBARD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas
Trial Court Case No. 14CR0848
MEMORANDUM OPINION
A jury convicted appellant, James Jesse Hubbard, of the second-degree felony offense of robbery. After appellant pleaded true to the allegations in two enhancement paragraphs, the trial court assessed his punishment at forty years' confinement. In his sole issue on appeal, appellant contends that his trial counsel rendered constitutionally ineffective assistance of counsel when he (1) failed to object to a detective's testimony that she "knew" and was "familiar with" appellant; and (2) failed to object to the prosecutor's statements during closing argument that appellant had a drug habit and was on drugs at the time of the robbery when no evidence in the record supported these statements.
See TEX. PENAL CODE ANN. § 29.02 (Vernon 2011).
We affirm.
Background
On February 27, 2014, Robert Robinson, the complainant, had just gotten paid, and he decided to celebrate Mardi Gras by visiting a bar on the Strand in Galveston. Robinson had never been to the Strand before, and he had difficulty finding a parking space. Eventually, he parked his truck and started walking around, and he decided to visit a particular bar when he heard a band playing. Robinson sat down at the bar and talked with appellant, who was eating at the bar. Appellant introduced himself to Robinson as "James," and Robinson identified appellant in-court as the man he had spoken with at the bar. During the conversation, appellant told Robinson that he was homeless, and Robinson bought both of them a beer. Robinson and appellant remained seated at the bar for approximately an hour. Robinson estimated that he had two beers during this time.
When the bar started getting crowded, Robinson and appellant moved to a table, where they continued talking and drinking. At one point, an older couple walked by and recognized appellant. After about a half hour to an hour sitting at the table, Robinson and appellant walked outside the bar to smoke a cigarette. Robinson shared one with appellant. Robinson had another beer while they were outside, and another man recognized appellant and spoke with them. Every time Robinson bought a beer, he opened his wallet, which contained around $300 dollars, and paid with cash. Appellant was present every time Robinson opened his wallet.
After staying at the bar for about three hours, during which time Robinson estimated that he drank four or five beers, Robinson informed appellant that he needed to leave and go find his truck. Appellant responded that he would try to help. While walking along the Strand, appellant asked Robinson if he could borrow his cell phone so he could call his girlfriend. Robinson complied, and he walked further ahead to give appellant some privacy. When appellant returned the phone, he and Robinson decided to stop at a grocery store to purchase cigarettes. Robinson bought a pack for himself and a pack for appellant. The men walked about a block away from the store, and Robinson turned to look down the street. When he turned back, appellant "coldcocked" him on the eye and hit him several more times. Robinson fell to the ground and then got back up and tried to run away, but he tripped and fell back to the ground. Appellant followed him and kept hitting him. Appellant eventually grabbed Robinson's wallet during the scuffle and ran off.
After appellant ran away, Robinson crawled across the street and hid behind a wall before calling his father and explaining what had happened. The next morning, Robinson's father took him to the hospital and they contacted police. Robinson had black eyes and numerous bruises, and his front teeth had been knocked out.
One week after the robbery, Robinson spoke with a Galveston Police Department ("GPD") detective and told her what had happened. During this conversation, Robinson told the detective that appellant had used his cell phone, and the detective took a picture of the call log on Robinson's phone. The detective "immediately tracked [the number] down." Robinson also viewed a photo-array during this conversation. Robinson selected appellant's picture from the photo-array, and, when asked by the prosecutor how confident he was at the time he viewed the photo-array that the person he had selected was the person who robbed him, Robinson testified, "A hundred percent." Robinson stated at trial that he still believed "100 percent" that the person he identified in the photo-array was the person who robbed him.
The trial court admitted a copy of the photo-array that Robinson viewed. On the photo-array, Robinson signed his name under appellant's picture and wrote, "100% this is the man." Robinson's father, Fred Robinson, was with him when he viewed the photo-array. Fred testified that Robinson "knew right off" that one of the pictures matched the person who robbed him and that Robinson did not waver in his identification but was "exact on and no question to it and in his mind."
GPD Detective M. Sollenberger was assigned to this case about a week after the robbery. She interviewed Robinson, who gave her a physical description of his attacker. Detective Sollenberger believed that appellant was a suspect, and she identified appellant in court. The prosecutor asked Detective Sollenberger, "And so at that point why did you think the defendant was the person who robbed Mr. Robinson?" Detective Sollenberger replied, "I knew the defendant." Defense counsel did not object to this testimony.
Detective Sollenberger also testified that Robinson gave her a phone number that his attacker had dialed from his phone before the robbery occurred. She then researched this phone number to discover to whom it belonged. Detective Sollenberger had the following exchange with the prosecutor:
[The State]: And was that phone number associated with anyone in particular?
[Witness]: It was.
[The State]: Who was it associated with?
[Witness]: Lisa Gutierrez.
[The State]: And did you know Lisa Gutierrez?
[Witness]: I did.
[The State]: And were you familiar with anyone who Lisa Gutierrez was dating or with?Defense counsel did not object to this testimony.
[Witness]: I was.
[The State]: And who was that person?
[Witness]: James Hubbard.
[The State]: And how was she associated with him?
[Witness]: He and she were in a dating relationship at that time.
Based on the information that she had received, Detective Sollenberger then created a photo-array and placed appellant's picture in the array. She testified that Robinson selected appellant as the person who robbed him, and she characterized Robinson as "[a]bsolutely confident" about his choice. She stated that Robinson never wavered in his identification of appellant as the robber.
Lisa Gutierrez, who is informally married to appellant, testified that she received several phone calls from appellant throughout the day on February 27, but, during one call at night, appellant informed her that he would be home late because he was helping someone find his truck. She stated that she and appellant lived together in an abandoned house and that appellant worked at the bar where he met Robinson to earn money to help her drug habit. Gutierrez testified that she was "very strung out on drugs" and very sick on the night of the robbery. When the prosecutor asked her whether appellant also used drugs, she replied, "No, sir, not that I know of." Gutierrez testified that she was the one in their family who used drugs and that she had never seen appellant use drugs.
During closing argument, the State focused on rebutting appellant's defensive theory that Robinson was intoxicated and had misidentified him as the person who had robbed him. The prosecutor stated:
Now, defense counsel wants to make this about alcohol, but ladies and gentlemen of the jury, this case is not about alcohol. It's about drugs. It's about the defendant's habit. It's about his wife's habit and it's about the need to feed that habit and it's really about easy targets.The prosecutor later stated, "[Appellant] forgot about the cell phone. He forgot about Laura and Frank [the couple who had spoken with appellant and Robinson inside the bar]; and when you're on drugs, you tend to do these things. You tend to not think about the consequences of your actions." The prosecutor also argued, "Members of the jury, [appellant] wasn't getting paid money for a drug habit. He was getting paid in food; and the little money that he did pick up here and there, he used for drugs for not only Lisa but himself." Defense counsel did not object to any of these references to appellant's having a drug habit.
The jury ultimately found appellant guilty of robbery. After appellant pleaded true to the allegations in two enhancement paragraphs, the trial court assessed his punishment at forty years' confinement. This appeal followed.
Ineffective Assistance of Counsel
In his sole issue on appeal, appellant contends that his trial counsel rendered constitutionally ineffective assistance. Specifically, appellant argues that his trial counsel was ineffective by (1) failing to object to Detective Sollenberger's testimony that she "knew" and was "familiar with" appellant and Gutierrez; and (2) failing to object to the prosecutor's statements during argument that appellant robbed Robinson to support his own drug habit when there was no evidence in the record that appellant used drugs or had a drug habit.
A. Standard of Review
To establish that trial counsel rendered ineffective assistance, an appellant must demonstrate, by a preponderance of the evidence, that (1) his counsel's performance was deficient, and (2) there is a reasonable probability that the result of the proceeding would have been different but for his counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010); Cannon v. State, 252 S.W.3d 342, 348-49 (Tex. Crim. App. 2008). The appellant's failure to make either of the required showings of deficient performance and sufficient prejudice under Strickland defeats the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong.").
To establish an ineffective assistance claim, the appellant must first show that his trial counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The second prong of Strickland requires the appellant to demonstrate prejudice—"a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and, therefore, the appellant must overcome the presumption that the challenged action constituted "sound trial strategy." Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review is highly deferential to counsel, and we do not speculate regarding counsel's trial strategy. See Bone v. State, 77 S.W.3d 828, 833, 835 (Tex. Crim. App. 2002). To prevail on an ineffective assistance claim, the appellant must provide an appellate record that affirmatively demonstrates that counsel's performance was not based on sound trial strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate alleged ineffectiveness).
In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Mallett, 65 S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 505, 123 S. Ct. 1690, 1694 (2003) ("If the alleged error is one of commission, the record may reflect the action taken by counsel but not the reasons for it. The appellate court may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel's alternatives were even worse. The trial record may contain no evidence of alleged errors of omission, much less the reason underlying them.") (internal citations omitted). Because the reasonableness of trial counsel's choices often involves facts that do not appear in the appellate record, the Court of Criminal Appeals has stated that trial counsel should ordinarily be given an opportunity to explain his actions before a court reviews the record and concludes that counsel was ineffective. See Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836.
B. Analysis
1. Failure to Object to Detective Sollenberger's Testimony
Appellant first contends that his trial counsel rendered ineffective assistance by failing to object to Detective Sollenberger's testimony that she "knew" and was "familiar with" appellant.
Generally, to establish ineffective assistance of counsel for failure to object to testimony, an appellant must show that the trial court would have committed error in overruling an objection to the testimony. Hollis v. State, 219 S.W.3d 446, 463 (Tex. App.—Austin 2007, no pet.). Thus, trial counsel's failure to object to admissible evidence does not constitute ineffective assistance of counsel. Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.—Houston [14th Dist.] 1997, pet. dism'd). Further, even if the evidence could have been excluded on some basis, trial counsel may have had a sound trial strategy in not objecting if the evidence does not harm the appellant's case. Hollis, 219 S.W.3d at 463 (citing Stafford v. State, 813 S.W.2d 503, 508 (Tex. Crim. App. 1991) (holding that trial counsel's failure to object to testimony of drug transaction was "a strategic move on his part and 'might be considered sound trial strategy'")); Cooper v. State, 788 S.W.2d 612, 618 (Tex. App.—Houston [1st Dist.] 1990, pet. ref'd) (holding that objecting to unfavorable testimony could draw jury's attention to that testimony and, thus, defense counsel could have had reasonable trial strategy for failing to object). Courts have held that police officers may permissibly testify concerning how a defendant came to be a suspect in a particular case. See, e.g., Lacaze v. State, 346 S.W.3d 113, 121 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (holding that police officer may testify as to statements from others for purpose of showing why defendant became suspect without violating hearsay rule); see also Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (holding same).
Here, Detective Sollenberger testified concerning the conversation that she had with Robinson regarding the robbery. Robinson gave her a physical description of his attacker. The prosecutor asked Detective Sollenberger whom she believed the suspect to be based on the information provided by Robinson, and she named appellant. Detective Sollenberger then identified appellant in court. The prosecutor asked why Detective Sollenberg believed appellant robbed Robinson, and she replied, "I knew the defendant." Later, when Detective Sollenberger testified concerning her tracing of the number that appellant had called using Robinson's cell phone before the robbery to Lisa Gutierrez, the prosecutor asked Sollenberger whether she was "familiar with anyone who Lisa Gutierrez was dating or with," and Sollenberger named appellant. Defense counsel did not object to any of this testimony.
On appeal, appellant argues that this questioning was "prejudicial and improper," but he cites no authority for this proposition. It was permissible for Detective Sollenberger to testify concerning how appellant became a suspect in the robbery in this case. See Lacaze, 346 S.W.3d at 121. To the extent appellant argues that this testimony was impermissibly prejudicial because it "implied that appellant was a criminal and that Detective Sollenberger was familiar with appellant due to his criminal activity," this argument is unavailing. Detective Sollenberger testified only that she "knew" and was "familiar with" appellant. She provided no testimony that she knew appellant because he had been a suspect in a prior case or because of a prior criminal conviction. Appellant, therefore, has not demonstrated that any prejudicial effect of Detective Sollenberger's testimony substantially outweighed the testimony's probative value. See TEX. R. EVID. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice . . . ."). Furthermore, even if Detective Sollenberger's testimony did imply that she knew appellant because of a prior offense or his prior criminal history, it could have been a reasonable trial strategy to avoid calling attention to this implication by objecting to the testimony. See Cooper, 788 S.W.2d at 618; see also Duren v. State, 87 S.W.3d 719, 734 (Tex. App.—Texarkana 2002, pet. struck) ("[Defense counsel's] failure to object to [testimony concerning a prior extraneous bad act] may be explained as reasonable trial strategy to not draw the jury's attention to the testimony.").
We conclude that appellant has not met his burden of demonstrating that, had his trial counsel objected to Detective Sollenberger's testimony, the trial court would have erred in overruling the objection. See Hollis, 219 S.W.3d at 463. Appellant, therefore, has not established that his trial counsel rendered ineffective assistance by failing to object to this testimony. See Oliva, 942 S.W.2d at 732 (holding that trial counsel does not render ineffective assistance by failing to object to admissible evidence).
2. Failure to Object to Statements During Closing Argument
Appellant also argues that his trial counsel rendered ineffective assistance by failing to object to three statements made by the prosecutor during closing argument in which the prosecutor argued that appellant's motive for committing the robbery was to support his drug habit. Appellant argues that these statements injected harmful new facts into the proceedings because there was no evidence that appellant used drugs, and, in fact, Gutierrez testified on several occasions that, to her knowledge, appellant did not use drugs.
Generally, there are four permissible areas of closing argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). A prosecutor may not use closing argument to present evidence that is outside of the record. Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011). "Improper references to facts that are neither in evidence nor inferable from the evidence are generally designed to arouse the passion and prejudice of the jury and, as such, are inappropriate." Id.
Here, appellant points to three instances during the prosecutor's closing argument during which the prosecutor suggested that appellant robbed Robinson to obtain money to support his own drug habit. Specifically, the prosecutor stated that the case was "about drugs. It's about the defendant's habit. It's about his wife's habit and it's about the need to feed that habit and it's really about easy targets." The prosecutor later referred to appellant's actions during the course of the evening of the robbery and stated, "[W]hen you're on drugs, you tend to do these things. You tend to not think about the consequences of your actions." Finally, the prosecutor stated, "Members of the jury, [appellant] wasn't getting paid money for a drug habit. He was getting paid in food; and the little money that he did pick up here and there, he used for drugs for not only Lisa but himself."
As appellant points out on appeal, the record contains no evidence that appellant used drugs or had a "drug habit" to support. Instead, the only evidence presented at trial relating to drug use concerned that of Gutierrez, appellant's common-law wife. However, even if the State's arguments were improper and appellant's trial counsel performed deficiently by failing to object to these statements, to be entitled to reversal on ineffective assistance grounds, appellant still must demonstrate prejudice, that is, that the result of the proceeding would have been different but for his counsel's failure to object to the improper arguments. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812.
Appellant argues that "[a]llowing the prosecutor to state that appellant had a 'drug habit' and was 'on drugs' provided the prosecutor with [appellant's] clear motive to commit this robbery and was extremely prejudicial to appellant." The record, however, contains strong evidence of appellant's guilt, even absent the prosecutor's suggestion of a motive for the robbery. Robinson, the complainant, spent three to four hours in appellant's presence before the robbery occurred. Robinson had over $300 in cash on him that night, and he testified that appellant was present each time he pulled out his wallet to pay for their beers. Robinson identified appellant, both in a photo-array and in court, as the individual who robbed him. He stated that, at the time he viewed the photo-array and selected appellant's picture as the person who had robbed him, he was "[a] hundred percent" certain that he had picked the correct person. Robinson testified that, at trial, he still believed "100 percent" that appellant had robbed him.
Both Detective Sollenberger and Fred Robinson, Robinson's father, were present at the time Robinson viewed the photo-array, and both testified that Robinson never wavered in his selection of appellant's picture from the array. Fred Robinson testified that Robinson "knew right off" that appellant's picture matched the person who had robbed him, and Detective Sollenberger characterized Robinson as "[a]bsolutely confident" in his selection. Robinson also informed Detective Sollenberger that the person who had robbed him had used his cell phone to place an outgoing call shortly before the robbery, and when Sollenberger researched the phone number called from Robinson's phone, the number was that of Gutierrez, appellant's common-law wife.
In light of the evidence presented at trial, we conclude that, even if trial counsel had performed deficiently by not objecting to the prosecutor's statements during closing argument, appellant has not demonstrated that, but for this deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. We therefore hold that appellant has not established that his trial counsel rendered constitutionally ineffective assistance.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Chief Justice Radack and Justices Keyes and Higley. Do not publish. TEX. R. APP. P. 47.2(b).