Opinion
No. 05-19-00468-CR No. 05-19-00469-CR No. 05-19-00470-CR No. 05-19-00471-CR No. 05-19-00472-CR
05-13-2020
KHALIL LAVANTE MILLER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F16-20871-V , F16-20872-V, F16-20878-V, F16-20879-V, and F17-00837-V
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Evans
Opinion by Justice Evans
Khalil Lavante Miller filed this appeal seeking, among other things, a new punishment hearing after entering an open plea of guilty to four cases of aggravated robbery and one case of burglary of a habitation. The trial court sentenced appellant to fifteen years' imprisonment in each case, to be served concurrently. In eight issues, appellant generally complains about the trial court's taking judicial notice of certain evidence, contends the State made improper closing argument, asserts his trial counsel was ineffective, seeks to delete duplicative costs and fees assessed in four of the judgments, and requests that we modify the judgments to accurately reflect the name of the State's attorney who prosecuted the cases. For the reasons set forth below, we modify the judgments of conviction as requested and affirm as modified.
BACKGROUND
Appellant judicially confessed to the charged offenses and entered an open plea of guilty to each offense. At the hearing, the trial court admitted into evidence appellant's signed judicial confession and stipulation of evidence for each case, and several mitigating statements submitted on behalf of appellant. After hearing the arguments of counsel, the trial court assessed punishment at fifteen years' imprisonment in each case. This appeal ensued.
ANALYSIS
We begin with appellant's first and third issues. Appellant first complains about trial court's purported taking judicial notice of evidence presented at a co-defendant's trial. In his third issue, appellant argues the State improperly argued facts not in evidence during closing argument. Specifically, appellant contends the prosecutor improperly summarized evidence presented at an accomplice's trial, noting: (1) a person was shot during the first home invasion, (2) appellant and his accomplices went to another home and "put guns in [the victims'] faces," (3) how the crimes affected the victims present, and (4) appellant was not as cooperative with police as appellant suggested. Appellant contends the trial court's taking judicial notice of evidence adduced at the co-defendant's trial was improper and the prosecutor's reference to this evidence during closing argument was likewise error. Appellant concedes, however, his trial counsel did not object to either the trial court's purported taking judicial notice or the prosecutor's reference to this evidence during closing argument.
It appears from the record that the trial judge that took appellant's plea was also the judge during the co-defendant's trial. During her argument, the prosecutor noted the trial court "will recall the trial that we had in December against the co-defendant" and referred to certain evidence in that trial.
As an appellate court, we review a trial court's ruling or an objection to its refusal to rule. See TEX. R. APP. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). "The two main purposes of requiring a specific objection are to inform the trial judge of the basis of the objection so that he has an opportunity to rule on it and to allow opposing counsel to remedy the error." Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). This is called preservation of error and "is a systemic requirement on appeal." Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (footnote omitted). To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context. See TEX. R. APP. P. 33.1(a)(1). If an issue has not been preserved for appeal, we should not address it. Clark, 365 S.W.3d at 339. This is because if an appellant fails to preserve a complaint nothing is presented for our review. See Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990) ("Generally, error must be presented at trial with a timely and specific objection, and any objection at trial which differs from the complaint on appeal preserves nothing for review.").
Because appellant did not object below to the judge's purported taking judicial notice, his complaints on appeal with respect to the propriety of this action has not been preserved for appeal. See Broussard v. State, 598 S.W.2d 873, 874 (Tex. Crim. App. 1980) (en banc) (failure to object to trial court's taking judicial notice waived complaint on appeal). Likewise, a complaint about an improper counsel argument must be preserved by objection pursued to an adverse ruling, otherwise any error from it is waived. See Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018.) Accordingly, appellant's failure to object about the purported improper argument below precludes consideration of this issue on appeal. We resolve appellant's first and third issues against him.
In his fifth issue, appellant challenges his fifteen-year sentence, arguing the trial court improperly assessed his punishment based on the sentences of his co-defendants who each received thirty-five years' imprisonment. Appellant specifically references the trial judge's statements, "Mr. Miller, it would be wholly inequitable for me to sentence you to probation. The other defendants got thirty-five years. I'm giving you twenty years back for your cooperation. I'm giving you twenty years back for the letters." Appellant contends that because the judge mentioned his co-defendants' sentences when stating it would be inequitable to sentence appellant to probation, the court necessarily improperly considered more than appellant's individual circumstances in determining his punishment.
We first note that appellant made no objection to his sentence in the trial court below. Accordingly, this issue has not been preserved for appellate review. See TEX. R. APP. P. 33.1(a)(1)(A). Even absent waiver, however, our review of the record belies appellant's contention. The trial court specifically considered appellant's cooperation with the police and the mitigation letters he provided in assessing punishment. We do not view the trial court's mere reference to the other co-defendants' sentences when rejecting probation as an appropriate sentence for appellant as proof that the trial court based appellant's sentence on his co-defendants' sentences. We resolve appellant's fifth issue against him.
In his second and fourth issues, appellant asserts his trial counsel was ineffective for failing to object to the trial court's taking improper judicial notice and the prosecutor's closing argument referencing facts not in evidence. Texas courts apply the two-pronged Strickland test to determine whether counsel's representation was so inadequate as to violate a defendant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland two-prong test for criminal cases in Texas.). Under this two-part test, appellant must establish that: (1) counsel's performance was deficient and that his assistance fell below an objective standard of reasonableness; and (2) but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Unless appellant can prove both prongs, an appellate court must not find counsel's representation to be ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). In order to satisfy the first prong, appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Further, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To prove the second prong, appellant must show that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different. Lopez, 343 S.W.3d at 142.
We ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without evidence of the strategy employed, we will presume sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Texas procedure makes it "virtually impossible" for appellate counsel to present an adequate ineffective assistance of trial counsel claim on direct review. Trevino v. Thaler, 569 U.S. 413, 423 (2013). This is because the inherent nature of most ineffective assistance of trial counsel claims means that the trial court record "will often fail to 'contai[n] the information necessary to substantiate' the claim." Id. at 424 (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997).
We are not persuaded by appellant's ineffective assistance claim for several reasons. We first note the record is completely silent on why trial counsel failed to object to these purported errors. Indeed, based on our reading of the record, we question whether the trial court actually took judicial notice of the evidence presented in the co-defendant's trial. Likewise, there is nothing to indicate whether appellant's counsel's failure to object to the prosecutor's closing argument was the result of negligent conduct or of strategic design. Thus, we cannot conclude appellant has rebutted the strong presumption that these failures to object were reasonable decisions. See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) ("Trial counsel 'should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.' If trial counsel is not given that opportunity, then the appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'") (internal citations omitted).
Moreover, even assuming appellant had satisfied the first prong of Strickland, he has not demonstrated that, but for counsel's unprofessional errors, the result of the proceeding would be different. Instead, the record indicates that although the State had previously offered appellant a plea agreement for twenty years' imprisonment, at the hearing the prosecutor requested the trial court not be limited by the twenty-year offer, but consider the entire range of punishment available. The trial court sentenced appellant to fifteen years' imprisonment specifically stating that he was giving appellant the benefit of his cooperation with the police and the mitigation letters he submitted. Considering the nature of the crimes and the evidence properly before it, it is entirely possible that appellant would have been sentenced to fifteen years' imprisonment without the trial court's consideration of the evidence and counsel argument appellant complains of on appeal. As such, appellant has failed to demonstrate that but for counsel's unprofessional error, the result of the proceeding would have been different. We resolve appellant's second and fourth issues against him.
In his sixth, seventh, and eighth issues, appellant requests that we delete certain duplicative costs from the judgments in trial court cause numbers F16-20872-V, F16-20878-V, F16-20879-V and F16-00837-V; remove a DNA testing fee from trial court cause number F16-20879-V, and modify the judgments in all five trial court cause numbers to reflect the correct name of the attorney who represented the State at the hearing. The State agrees that the judgments should be modified as appellant requests in these three issues.
There is no dispute that all five causes were heard together during a single criminal action. Accordingly, each cost should have been assessed only once and the amount of each variable cost calculated using appellant's conviction for the highest category of offense. See TEX. CODE CRIM. PROC. ANN. art. 102.073(a), (b); Robinson v. State, 514 S.W.3d 816, 827 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Additionally, we agree that the $250 DNA testing fee assessed in cause number F16-20879-V was not authorized by statute because burglary of a habitation was not one of the offenses enumerated in section 411.1471(a)(1) of the government code authorizing the fee assessment at the time of appellant's plea proceeding. See Act of May 23, 2017, 85th Leg., R.S., ch.326, § 1, 2017 Tex. Gen. Laws 965, 966 (eff. Sept 1, 2017 to Aug. 31, 2019) (current version at TEX. GOV'T CODE ANN. § 411.1471(a)(1)). We therefore modify the trial court's judgment in cause numbers F16-20872-V, F16-20878-V, F16-20879-V and F16-00837-V to delete all costs and fees.
Finally, our review of the record reveals that each of the five judgments incorrectly names Herchel Woods as representing the State at the plea/sentencing proceeding. All parties agree, and the reporter's record reflects, that the attorney representing the State was Jessica Trevizo. We have the power to modify incorrect judgments when the necessary data and information is available to do so. See TEX. R. APP. P. 43.1(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet ref'd). Accordingly, we modify all judgments to accurately reflect Jessica Trevizo was the prosecutor representing the State in these proceedings.
CONCLUSION
We resolve appellant's first through fifth issues against him. We sustain issues six through eight and modify the judgments in trial court cause numbers F16-20872-V, F16-20878-V, F16-20879-V and F16-00837-V to delete all duplicative costs and fees. We further modify the judgments in all five cause numbers to reflect Jessica Trevizo was the attorney who represented the State in these proceedings. As modified, we affirm the trial court's judgments.
/David Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
190468F.U05
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-20871-V.
Opinion delivered by Justice Evans, Justices Partida-Kipness and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: we STRIKE "Herschel Woods 24048899" as "Attorney for State" and REPLACE it with "Jessica Treviso 24073105" as "Attorney for State." As modified, we AFFIRM the judgment. Judgment entered May 13, 2020.
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-20872-V.
Opinion delivered by Justice Evans, Justices Partida-Kipness and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: we STRIKE "Herschel Woods 24048899" as "Attorney for State" and REPLACE it with "Jessica Treviso 24073105" as "Attorney for State"; we DELETE the $249.00 assessed under "Court Costs." As modified, we AFFIRM the judgment. Judgment entered May 13, 2020.
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-20878-V.
Opinion delivered by Justice Evans, Justices Partida-Kipness and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: we STRIKE "Herschel Woods 24048899" as "Attorney for State" and REPLACE it with "Jessica Treviso 24073105" as "Attorney for State"; we DELETE the $249.00 assessed under "Court Costs." As modified, we AFFIRM the judgment. Judgment entered May 13, 2020.
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F16-20879-V.
Opinion delivered by Justice Evans, Justices Partida-Kipness and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: we STRIKE "Herschel Woods 24048899" as "Attorney for State" and REPLACE it with "Jessica Treviso 24073105" as "Attorney for State"; we DELETE the $499.00 assessed under "Court Costs." As modified, we AFFIRM the judgment. Judgment entered May 13, 2020.
JUDGMENT
On Appeal from the 292nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F17-00837-V.
Opinion delivered by Justice Evans, Justices Partida-Kipness and Nowell participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: we STRIKE "Herschel Woods 24048899" as "Attorney for State" and REPLACE it with "Jessica Treviso 24073105" as "Attorney for State"; we DELETE the $249.00 assessed under "Court Costs." As modified, we AFFIRM the judgment. Judgment entered May 13, 2020.