Jean Batiste Rougeux v. The State of Texas--Appeal from 6th District Court of Lamar County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00047-CR

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JEAN BATISTE ROUGEUX, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 19691

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Jean Batiste Rougeux appeals his conviction by a jury for possession of a controlled substance, namely cocaine in an amount of more than four grams but less than two hundred grams, with the intent to deliver. The jury assessed punishment at twenty-five years' imprisonment, and the trial court sentenced Rougeux consistent with the jury's assessment. Rougeux raises two points of error on appeal: 1) the State made an impermissible comment during voir dire concerning Rougeux's failure to testify, and 2) Rougeux received ineffective assistance of counsel. We affirm the judgment of the trial court.

I. Voir Dire Examination Comments

In his first point of error, Rougeux argues the State made several impermissible comments concerning Rougeux's failure to testify during voir dire. Specifically, the State asked a prospective juror: "Would you want a jury to demand to hear your side of the story if you were charged with a crime?" A State's comment on the defendant's failure to testify may violate a defendant's right not to testify against himself or herself. See Griffin v. California, 380 U.S. 609, 614 15 (1965); Hall v. State, 13 S.W.3d 115, 117 (Tex. App. Fort Worth 2000, pet. dism'd). However, the defense failed to object to any of the complained-of comments. A timely, specific objection must be made to preserve an issue on appeal. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). Because no objection was made to the complained-of voir dire questioning, the issue is not preserved for review. We overrule Rougeux's first point of error.

II. Ineffective Assistance of Counsel

Rougeux complains in his second point of error that his trial counsel failed to provide him with effective assistance of counsel. Rougeux argues his trial counsel's failure to object to late arraignment, // irrelevant evidence, failure to object to an inadmissible oral confession, and failure to object to the State's comments during voir dire constitute ineffective assistance of counsel under the totality of the circumstances. According to Rougeux, there is a reasonable probability of a different result because he probably would have only been convicted of possession instead of possession with the intent to deliver but for the errors of defense counsel. Because the mere possession would have been a second-degree felony and possession with intent to deliver was a first-degree felony, Rougeux argues there was a reasonable probability of a different result. Compare Tex. Health & Safety Code Ann. 481.112 (Vernon 2003) with Tex. Health & Safety Code Ann. 481.115 (Vernon 2003). The standards for analyzing a claim of ineffective assistance of counsel are well established. The Sixth Amendment standard, established by Strickland, requires a defendant alleging ineffective assistance of counsel to show that his or her counsel's performance at trial was deficient and to show a "reasonable probability" that, but trial counsel's errors, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668 (1984); see also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

A. Failure to Object to Tardy Reading of the Indictment

Rougeux claims his trial counsel failed to object to the reading of the indictment after the evidence began. At the beginning of the guilt/innocence phase of the trial, the attorneys made opening statements and then the State began direct examination of Lee Foreman, a policeman for the City of Paris. After asking a few preliminary questions concerning Foreman's background and training, consisting of less than three pages of the reporter's record, it was determined that the indictment had not been read in the presence of the jury. The indictment was then read, and Rougeux entered a plea of not guilty. No objection was made to the procedure. Reading the indictment to the jury is required by law. Tex. Code Crim. Proc. Ann. art. 36.01(1) (Vernon Supp. 2005). Until the indictment is read and a defendant's plea entered, no issue is joined between the State and the defendant. See Peltier v. State, 626 S.W.2d 30, 31 (Tex. Crim. App. [Panel Op.] 1981). The rationale for the rule is to inform the accused of the charges against him or her and to inform the jury of the exact terms of the particular charge against the accused. However, error that results from not reading the indictment and not entering a plea can be cured at trial. The correct procedure to be followed after a tardy reading of the indictment and the entering of a plea has been long established: on learning of the error, the indictment is read to the jury, the accused enters a plea, and the State reintroduces the evidence; or the parties may stipulate to the evidence. Limon v. State, 838 S.W.2d 767, 768 69 (Tex. App. Corpus Christi 1992, no pet.) (citing Warren v. State, 693 S.W.2d 414, 416 (Tex. Crim. App. 1985); Welch v. State, 645 S.W.2d 284, 285 (Tex. Crim. App. 1983); Trammell v. State, 445 S.W.2d 190, 193 94 (Tex. Crim. App. 1969)).

Here, the indictment was read to the jury and Rougeux entered his plea. The evidence presented before reading the indictment concerned only Foreman's background, which was unnecessary in proving any of the allegations in the indictment. All other evidence was presented after the issue had been joined by reading the indictment and entering the plea. The evidence presented before the indictment was read did not address the substance of the charge, was not necessary to prove the case, and it may be disregarded without affecting the remainder of the trial. Here, the error was cured and trial counsel did not perform deficiently in failing to object.

B. Failure to Object to Voir Dire Comments

Because Rougeux's trial counsel did not object to certain comments made during voir dire, Rougeux claims his trial counsel's performance was deficient. When viewed in the context of the surrounding portions of the voir dire examination, Rougeux's trial counsel could have concluded that the State's comments were proper or did not rise to a level justifying an objection. During voir dire, the State engaged in the following colloquy:

[Prosecutor]: . . . . As Mr. Rougeux sits here today, if we end it and y'all went in the jury box, I said okay, that's it. I'm done. All I'm going to do is voir dire. How many of you would find him not guilty? Everyone would find him not guilty because he's presumed innocent. We've proven nothing. Somebody being indicted by a grand jury is not any indication of Mr. Rougeux's guilt at all. Does everybody agree with that?

Okay. How many of you, just based on what I've told you so far, would like to hear Mr. Rougeux's side of the story?

. . . .

[Prosecutor]: Everybody reads the paper and says, hey, I see Joe Smith got arrested. How many of y'all always go, I wonder what he did wrong this time? Right. A little bit different deal here.

. . . .

[Prosecutor]: You wouldn't want a jury predetermining your fate before any of the facts were presented, would you?

[Prospective Juror]: Not at all.

[Prosecutor]: Would you want a jury to demand to hear your side of the story if you were charged with a crime?

[Prospective Juror]: Sure.

[Prosecutor]: Okay. You would -- you would require the question. Mr. Rougeux has the right not to testify. Okay?

[Prospective Juror]: That's right.

[Prosecutor]: Okay. He -- there's nothing wrong with being curious. I would say human nature if you're not curious, something is a little suspect. It's curious to know what he might or might not say. The question is, if he doesn't say anything, and he has that right, [Prospective Juror], will you hold it against him?

[Prospective Juror]: No.

[Prosecutor]: Still require the state to prove its case beyond a reasonable doubt?

Rougeux's trial counsel's reasons for not objecting are not in the record. // Based on the context of the voir dire discussion, Rougeux's trial counsel could have decided not to object for strategic reasons.

C. Failure to Object to Irrelevant Evidence

Rougeux argues his trial counsel allowed "an overwhelming amount of utterly irrelevant evidence of about how you cut up, dilute and spread cocaine around so that the amount of cocaine found on Mr. Rougeux (slightly less than 15 grams) could harm 'an untold amount' of people." The failure to object to inadmissible evidence may give rise to ineffective assistance of counsel. The State responds that this evidence was relevant to the jury's understanding the difference between a user and a dealer. Because the evidence may be relevant and Rougeux's trial counsel may have concluded the evidence was not worth an objection, counsel's failure to object could have been based on legitimate trial strategy.

D. Failure to Object to Oral Confession and Scales

Rougeux next contends his trial counsel's performance was deficient because he failed to object to an oral confession and other evidence establishing the intent to deliver. After Rougeux was arrested and read his Miranda // rights, Officer Foreman testified that he "talked to" Rougeux and that Rougeux allegedly confessed to distribution of cocaine. Rougeux argues that the admission of this confession violated Article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22, 3 (Vernon 2005). In addition, Rougeux argues that several scales allegedly found in Rougeux's apartment were introduced into evidence without objection even though they were not disclosed during discovery. Because Rougeux's trial counsel did not object to the introduction of the testimony concerning the confession or the introduction of the scales, Rougeux argues counsel rendered ineffective assistance. The State argues the record does not establish that the alleged confession was the result of a custodial interrogation. Foreman testified that he "talked to the defendant" and that Rougeux had stated "he had sold $20 worth of cocaine" earlier that day. In addition, Foreman testified Rougeux admitted to having some drug paraphernalia. The record does not clearly establish that the statements were the result of a custodial interrogation rather than an admission against interest, res gestae of the arrest, or a statement volunteered without interrogation. Because counsel's failure to object could have been based on strategic reasons and trial counsel's reasons for failing to object are not in the record, we cannot conclude that Rougeux's trial counsel's performance was so outrageous that no competent attorney would have engaged in it.

Ineffective assistance of counsel claims must be evaluated based on the totality of the circumstances. Strickland, 466 U.S. at 693; Welborn, 785 S.W.2d at 393. Under the totality of the circumstances, we are unable to conclude Rouguex's trial counsel's performance was deficient. "Isolated failures to object to certain procedural mistakes or improper evidence or argument do not constitute ineffective assistance of counsel." Wenzy v. State, 855 S.W.2d 52, 53 (Tex. App. Houston [14th Dist.] 1993, pet. ref'd). Rougeux was not entitled to errorless counsel. See Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993); Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Rougeux has failed to show his trial counsel's performance was so outrageous that no competent attorney would have engaged in it.

Further, Rougeux has failed to show a reasonable probability of a different result. Without the scales, confession, or allegedly irrelevant testimony, Rougeux argues there is a reasonable probability the jury would not have found that Rougeux had the necessary intent to deliver the cocaine. When he was arrested, Rougeux was holding fourteen grams of cocaine and had over seventy small plastic bags on his person. Approximately thirty of these plastic bags, which were blue, were a size which Foreman testified would not be used for packaging of marihuana, // but are used for the packaging of cocaine or methamphetamine. In addition, Foreman testified that fourteen grams of cocaine is more than a typical "user's amount" of cocaine and would not be used in "one sitting." The amount of cocaine possessed by Rougeux was sufficient for "a whole lot" of sittings, according to Foreman. Even without the allegedly inadmissible evidence, the jury was presented with sufficient evidence to conclude beyond a reasonable doubt that Rougeux was guilty of possession with the intent to deliver. We overrule Rougeux's second point of error.

For the reasons stated, we affirm.

Jack Carter

Justice

Date Submitted: November 9, 2005

Date Decided: November 10, 2005

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