Marvin Luther Marshall 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. 06-03-00215-CR

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MARVIN LUTHER MARSHALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 19374

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

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Marvin Luther Marshall's conviction for burglary of a habitation has been finally affirmed. In our previous opinion in this case, we affirmed Marshall's conviction but reversed his sentence // and remanded the case for a new punishment trial. // The Texas Court of Criminal Appeals has reversed // our decision on punishment and remanded the case for this Court to perform a harm analysis under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). Because we find no egregious harm, we affirm Marshall's punishment.

The Punishment Charge Error Was Not Egregiously Harmful

A punishment charge is erroneous if it does not instruct the jury on the range of confinements and fines within which punishment must be assessed under the contingency that the jury finds the enhancement allegations untrue. Kucha v. State, 686 S.W.2d 154, 155 (Tex. Crim. App. 1985). In the charge submitted to the jury in this case, no such contingency was provided. That was error. If such an instruction is missing, and the omission was not objected to, the appellate court must determine if this error is so harmful the appellant has not had a fair and impartial trial. Id. Harm must be determined from the entire record, not just the erroneous charge. Id.

In connection with that defect in the jury charge on punishment, Marshall also asserts that the verdict form constituted error in failing to give the jury the option of finding untrue either or both of the enhancement convictions. // Because the verdict form in the record does, in fact, fail to allow the jury to find either or both enhancement allegations untrue, the form was error. See Nevarez v. State, 832 S.W.2d 82, 86 (Tex. App. Waco 1992, pet. ref'd). But because that defect was not objected to, that error also becomes harmful only if we find egregious harm. Almanza, 686 S.W.2d at 171.

In evaluating harm, we assess the harm "in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. at 171; see Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). Under Almanza, jury instruction error must cause actual, not just theoretical, harm. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999). Error causes egregious harm if it affects "the very basis of the case," deprives "the defendant of a valuable right," or "vitally affect[s] a defensive theory." Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Thus, the essential question before us is whether the errors in the punishment charge and the jury form on punishment affect "the very basis of the case," "deprive the defendant of a valuable right," or "vitally affect a defensive theory" as to punishment. Id. at 171.

Although Marshall formally denied the enhancement allegations and thus put the State to its proof of the prior convictions, the heart of his defense during the short punishment phase was not that Marshall had not committed the alleged prior offenses, but that he committed no violence during his offenses. // The arguments by counsel were over violence or lack of violence in Marshall's history and the difference in recommended terms of imprisonment the State seeking forty to fifty years and Marshall arguing for a sentence of twenty-five years.

Marshall's argument for a twenty-five-year sentence is revealing. If the jury found Marshall had been twice previously, finally, and sequentially convicted of a felony offense as alleged in the State's enhancement notice the minimum applicable sentence in this case would have been twenty-five years, exactly the sentence Marshall's counsel asked of the jury. See Tex. Pen. Code Ann. 12.42(d) (Vernon Supp. 2005). Thus, Marshall essentially conceded the enhancement issue in his closing argument.

The only evidence offered during the punishment phase consisted of a "pen packet" reflecting Marshall's prior offenses, and identity evidence establishing that Marshall had, in fact, committed the prior offenses as charged.

In light of the entirety of the charge, the evidence, the argument of counsel, and the record in general, we conclude the charge error did not cause egregious harm. Marshall's defensive theory on punishment was that he had not been violent and thereby deserved a sentence at the lower end of the punishment range: twenty-five years. He did not argue, and there was no evidence, that he had not committed the alleged prior offenses. Because the punishment charge errors could have affected only the jury's findings on whether Marshall had committed the prior offenses, the errors did not "vitally affect a defensive theory," in as much as the record suggests Marshall effectively conceded that the State's evidence was sufficient to support the enhanced punishment range. Nor can we conclude on the record before us that the errors deprived Marshall of a valuable right in that Marshall did not ask, though he had the right to ask, the jury to find that the State had failed to meet its burden of proof on the enhancements, thus seeking to open the door to a lower minimum punishment. And similarly, in as much as the core issue to be decided by the jury was an appropriate punishment, any determination by us that the error affected "the very basis of the case" would be, at best, purely theoretical rather than actual, as required by Almanza. Therefore, we conclude Marshall suffered no egregious harm from jury charge error.

No Reversible Harm Was Caused by Failure to Read the Enhancement Allegations, or Failure to Take Marshall's Plea Before Punishment Phase Evidence Was Received

Just as jury charge error caused Marshall no egregious harm, the trial court's procedural error in not reading the enhancement allegations, and not taking Marshall's plea until after the punishment evidence was received, caused no egregious harm.

The Texas Court of Criminal Appeals specifically remanded this case to us only for the purpose of performing a harm analysis pursuant to Almanza. See Marshall, 185 S.W.3d at 903. Almanza requires us to subject jury charge error to egregious harm analysis, when no objection was made to the error. See Almanza, 686 S.W.2d at 171. We have performed that analysis as to the jury charge error. We now address the procedural error in not reading the enhancement allegations or taking Marshall's plea thereto at the beginning of the punishment phase of trial.

As we have noted, Marshall's strategy during the punishment phase of trial was to seek a sentence of twenty-five years' imprisonment, the shortest sentence available assuming the jury found that Marshall had committed the two enhancement offenses. Marshall did not actively contest, either with evidence or argument, the allegation that he had committed the two enhancement offenses. At the end of the presentation of the State's evidence of the enhancement offenses, Marshall's counsel agreed when the trial court entered a plea of "not true" for him.

As with the jury charge errors, the reading of the enhancement allegations and the taking of a plea to them both could have affected only the question of whether Marshall had committed the two enhancement offenses. Our previous analysis as to the jury charge errors is equally applicable to these errors. And based on the same rationale, we conclude these procedural errors considered both individually and as to any cumulative effect with the other errors did not cause egregious harm to Marshall. We also note that the record reveals that the failure to read the enhancement allegations or to take Marshall's plea to them at the beginning of the punishment phase did not mislead Marshall into any admission, since he did not testify during the punishment phase. See Linton v. State, 15 S.W.3d 615, 621 (Tex. App. Houston [14th Dist.] 2000, pet. ref'd). //

No Ineffective Assistance of Counsel Appears

Marshall also contends that, during the punishment phase of trial, his counsel's performance was deficient because of counsel's failure to object to (1) the punishment phase jury charge, (2) the defective verdict form, and (3) the trial court's failure to read the enhancement allegations or to take Marshall's plea. Ineffective assistance of counsel claims are evaluated under a two-part test which requires a showing of both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). When ineffective assistance is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed with an eye toward litigating or preserving the claim thus, a record that is often incomplete or inadequate for this purpose. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003). While the punishment phase errors here could have been avoided had trial counsel objected to them, the record before us is not sufficient to warrant a finding of ineffective assistance of counsel, particularly because there is no showing that the errors had any effect on the outcome of the punishment phase of trial. Cf. Bone v. State, 77 S.W.3d 828, 836 37 (Tex. Crim. App. 2002).

For the above reasons, we affirm Marshall's punishment.

Josh R. Morriss, III

Chief Justice

Date Submitted: June 5, 2006

Date Decided: July 19, 2006

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