Leonard Odell Cazey v. The State of Texas--Appeal from 82nd District Court of Robertson County

REVERSED AND REMANDED

AUGUST 23, 1990

NO. 10-89-079-CR

Trial Court

# 13,986

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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LEONARD ODELL CAZEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 82nd Judicial District Court

Robertson County, Texas

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O P I N I O N

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Leonard Odell Cazey was convicted by a jury for the offense of attempted murder, enhanced by two prior convictions, and assessed punishment at 99 years in the Texas Department of Corrections--the maximum sentence for the crime. In this appeal of his conviction and sentence he brings eleven points of error which essentially complain that the prosecutor made improper statements during argument, that the court gave an improper instruction to the jury, that the state failed to prove a prior conviction for enhancement, that his trial counsel provided ineffective assistance, and that the evidence was insufficient to support his conviction.

Although Cazey's insufficient evidence point is asserted as his final point of error, for the sake of efficiency we will consider it first. The test for sufficiency is "whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986).

The complainant, Ricky Green, testified that on November 11, 1988, he was taking his trash to his in-law's trash dump. On the way to the dump, he had to stop to open a gate that was near Cazey's trailer house. When Cazey saw Green drive up to the gate, he came out of his trailer and told Green he would shoot him if Green went through the gate. Cazey said that Green was interfering with deer hunters that were on his property. Green then told Cazey he would turn around and go another way, but he could "go down the road anytime [he] wanted to." After hearing this, Cazey went inside the trailer. Green was in his truck, turning around, when he heard a shot. Green looked out the truck window and saw Cazey standing on his front porch firing at him with a .22 caliber rifle. Fearing he would be killed, Green fell over onto the seat to his right. After the shooting stopped, Green drove home and called the sheriff's department.

The evidence showed that there was a bullet hole above the passenger-side door handle, three in the bottom part of the passenger-side door, and a bullet hole between the door and the wheel well of the tire. The passenger-side window was shattered by a bullet, and there was a bullet hole right above the stereo speaker inside the "right hand" door (passenger-side door) of the truck. Green testified that when the bullets were hitting the truck he believed that Cazey was trying to kill him. Two of the bullets lodged in the cushion of the seat just below where he was lying. Green told the jury that one of the bullets landed probably within three inches of his body, and that the bullet that came through the window hit at "eye level."

To obtain a conviction for attempted murder the state must prove that the defendant, with the specific intent to commit murder--murder being defined as intentionally or knowingly causing the death of an individual--does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. See TEX. PENAL CODE ANN. 15.01(a), 19.01(a)(1) (Vernon Supp. 1990 and Vernon 1989). Cazey's defense was that he did not intend to kill Green. However, if for no other reason than the proximity of the bullets to Green's body, any rational trier of fact could have found the essential elements of the offense of attempted murder beyond a reasonable doubt. Cazey's eleventh point is overruled.

Cazey maintains in his first three points of error that his conviction should be reversed because the prosecutor, at the guilt-innocence stage of the trial, requested the jury to consider extraneous offenses committed by Cazey. The court's charge instructed the jury not to consider extraneous offenses for any purpose other than in determining the specific intent of Cazey to commit the offense on trial.

The statements that Cazey asserts call for reversal were:

Enough is enough. In 1974, Leonard Odell Cazey tries to kill James Kellum and Haskell Longsford. In '75 he has a gun that the Sheriff and James Kellum tell him he has to drop. How many incidences of Leonard Odell Cazey shooting at people, trying to kill at least some of those people, before somebody says enough? Today has got to be that day.

Maybe if something had been done in '74 or '75 or '77 or '81 when he was shooting at other people, as James Kellum tells you in December '74, "he shot at me and I believe he was trying to kill me." He was trying to execute an arrest warrant at a house in Easterly and the response to him trying to arrest him was shotgun fire. In '75 when Sheriff Hurley and Deputy Kellum again tried to arrest him he shows the gun and they have to pull their weapons to make him drop it.

Anger is certainly enough motive to kill. So little regard for human life, so little regard for people's property, you have seen over and over again in this courtroom today from shooting at James Kellum and Haskell Longsford, to tearing up mailboxes, to shooting at houses that contained children and a family. So little regard for human life and property of those humans. I don't think it bothers him, Leonard Odell Cazey. I don't think he has to have a reason to kill Ricky Green, and that is tragic. That is why it would be tragic if you returned a verdict of anything other than guilty and a finding that Leonard Odell Cazey used a deadly weapon.

No objections by the defense were made to any of these statements at trial. Therefore, these complaints are waived unless the prosecutor's argument was so prejudicial that an instruction to disregard would not have cured the harm. See Romo v. State, 631 S.W.2d 504, 505 (Tex. Crim. App. [Panel Op.] 1982).

Permissible jury argument is limited to (1) a summation of the evidence, (2) a reasonable deduction from the evidence, (3) a response to argument of opposing counsel, or (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Even if argument falls outside of these four areas, reversible error exists only if the argument is extreme or manifestly improper, or injects new and harmful facts into evidence. Shipley v. State, 729 S.W.2d 349, 350 (Tex. App.--San Antonio 1987, no pet.). Assuming Cazey had objected, and assuming the argument fell outside of the parameters of proper jury argument, beyond a reasonable doubt, the error made no contribution to Cazey's conviction. See TEX. R. APP. P. 81(b)(2). Evidence of the extraneous offenses was properly before the jury, and the prosecutor told the jury nothing it could not have concluded on its own. As seen in the discussion of point eleven, supra, the evidence against Cazey was overwhelming, and he would have been convicted regardless of any mention of extraneous offenses. Points one through three are overruled.

Cazey asks this court in his fourth point to reverse his conviction due to the "prosecutor's impermissible comment on [Cazey's] failure to testify." During closing argument at the guilt-innocence stage of the trial the prosecutor said:

If one of these bullets had come a few inches closer and killed Ricky Green, you would be extremely incensed to that kind of argument and you would not hesitate at all to say, "Sure, Leonard Odell Cazey is guilty of murder." And don't you know what you would hear in the defense in that case? "Oh, but I didn't intend to kill him. I just intended to scare him." And you would think, "My God, how could somebody say that?" And when you look at this case you should have the same reaction.

As authority for this point, Cazey cites Cook v. State, 702 S.W.2d 597 (Tex. Crim. App. 1984) and Cherry v. State, 507 S.W.2d 549 (Tex. Crim. App. 1974). However, in each of these cases the prosecutor was suggesting to the jury possible defenses that could be raised, but had not been raised at the time. In this case, as the State points out, Cazey's attorney attempted to establish both on cross and direct examination of the witnesses that Cazey did not intend to kill Green. The use of the word "I" did not comment on Cazey's failure to testify; it was merely used to show that Cazey's lack-of-intent defense was not plausible. This point is overruled.

Points five and six concern the use of extraneous offenses at the punishment phase of the trial. Cazey insists in point five that the prosecutor, during oral argument, improperly requested the jury to punish Cazey for uncharged extraneous offenses and in point six that because evidence of extraneous offenses had been admissible in the guilt-innocence stage of the trial only for the limited purpose of showing intent, the court erred in instructing the jury that it could take into consideration in assessing punishment all of the evidence admitted in the trial. Point six is overruled because the law is clear that the trial judge may instruct the jury that it is permitted to take into consideration "all of the evidence" admitted at trial. Jones v. State, 567 S.W.2d 197, 208 (Tex. Crim. App. [Panel Op.] 1978). Such an instruction does not remove restrictions placed upon the admission of the extraneous offenses during the guilt-innocence stage; the jury may consider "all of the evidence" only for the purposes for which it is admitted.

Cazey's fifth point asks for reversal of his punishment based upon the following comments by the prosecutor during argument:

You know from the other evidence you heard in this case and the Judge tells you in the Charge of the Court, the Charge on punishment that you can consider that evidence, that this is the man who shot at James Kellum in 1974. This is the man who the Sheriff and James Kellum have to pull guns upon to take the gun away from him in 1975. This is the same man who the Ainsworths testified called by the Defendant three times has shot at them or their property. This is the man who James Kellum and Sheriff Hurley had to go after when Doris Barnhouse made a complaint about shooting at her grandchildren. This is the man who is a criminal, who you've said is a criminal, who another jury has said is a criminal, who has been to the penitentiary before as a criminal, and you must assess punishment.

Because the evidence of extraneous offenses was admissible only to show Cazey's intent to commit attempted murder, the prosecutor improperly referred to such evidence in his argument on punishment. However, there was no objection to this argument, and the complaint is waived unless the statements were so prejudicial that an instruction to disregard would not have cured the harm. See Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989).

Although the remark to the jury that it could consider the extraneous offenses based upon the judge's charge providing that the jury could consider all of the evidence was incorrect, an instruction to disregard probably would have cured the harm that remark caused. However, the prosecutor did not stop there. In what appears to be an effort to persuade the jury to punish Cazey for being a criminal generally, he erroneously proceeded to recount each extraneous offense, reminding the jury specifically of evidence which had been admitted merely to show intent. See TEX. CODE CRIM. PROC. ANN. art. 37.07 3(a) (Vernon Supp. 1990). We cannot hold that this error was harmless. Cazey was assessed the maximum sentence available when his two prior convictions properly admitted for enhancement were a 1963 burglary and a 1981 D.W.I. Nor does the failure by Cazey's counsel to object dissuade us from finding reversible error because we believe the prosecutor's argument was so prejudicial that an instruction to disregard would not have cured the harm. See Romo, 631 S.W.2d at 505; Plunkett v. State, 580 S.W.2d 815, 823 (Tex. Crim. App. 1978). Point five is sustained, and the cause is reversed and remanded for a new trial. See Ex parte Sewell, 742 S.W.2d 393, 397 (Tex. Crim. App. 1987) (holding on rehearing that the trial court is the proper forum to urge under the authority of Article 44.29(b) of the Texas Code of Criminal Procedure that the case be retried on punishment only).

Points seven and eight concern Cazey's prior burglary conviction which was used by the State for enhancement purposes. For the convenience of the parties on remand, we shall address these points.

By point seven Cazey requests this court to remand for new sentencing because "the State failed to prove the allegation of the prior conviction for burglary." Cazey maintains that there is a fundamental variance between the indictment, alleging that he was convicted in Cause No. 11,572 in Robertson County on October 2, 1961, and the proof which showed that he was not sentenced in the cause until June 3, 1963. Evidently, the indictment used the date Cazey was placed on probation for the burglary offense--1961--while the true conviction date was actually when his probation was revoked--1963. See Cockrell v. State, 632 S.W.2d 664, 667 (Tex. App.--Fort Worth 1982, pet. ref'd).

A variance between the allegation of the indictment and the proof presented at trial is material and fatal only if it would mislead a defendant to his prejudice. Klasing v. State, 662 S.W.2d 789, 792 (Tex. App.--Corpus Christi 1983, pet. ref'd). Because the cause number, county and type of offense were the same in both the indictment and the proof, and because the 1961 date was when Cazey was placed on probation for the offense of which he was convicted in 1963, there is no way Cazey could have been misled or prejudiced by the variance here. Accordingly, this point is overruled.

Cazey asserts in his eighth point that the State failed to prove beyond a reasonable doubt that he is the same man as was previously convicted in cause no. 11,572. In his brief, Cazey quotes part of the testimony from the State's fingerprint expert, and alleges that the "expert never gave an opinion as to a fingerprint comparison." However, as the State explains in its brief, the expert witness testified: "That in the right thumb and to the core at the center, there are similar ridge characteristics that would lead me to believe in my opinion, this is the same person." Point eight is overruled.

The last two points, numbers nine and ten, contain Cazey's complaints that his conviction and punishment should be reversed due to "ineffective assistance of counsel." He argues that his rights were violated pursuant to the sixth and fourteenth amendments to the U.S. Constitution and article I, section 10 of the Texas Constitution. See U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, 10.

Because this case is being reversed and remanded due to error at the punishment phase of the trial, we need only examine Cazey's attorney's performance as it relates to his conviction. The United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 687, 104 S. Ct. 2052, 2064 (1984), provided a two-prong test for deciding ineffective assistance claims: (1) a defendant must show that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. This is a conjunctive test, and the failure of a defendant to prove either of the prongs compels the reviewing court to overrule the complaint. See Smith v. State, 751 S.W.2d 902, 907 (Tex. App.--Houston [14th Dist.] 1988, no pet.).

Cazey, in his brief, lists several instances before and during trial where he feels his attorney failed him. Assuming that Cazey is correct, and that his counsel did provide a deficient performance, would Cazey still have been convicted? Cazey must show that, "but for counsel's unprofessional errors, the result would have been different." See Strickland, 446 U.S. at 694, 104 S. Ct. at 2068. As discussed in the previous points, the evidence was strong against Cazey. There was direct evidence that Cazey shot at the complainant several times in succession, and that the bullets hit extremely close to Green. This evidence was going to reach the jury regardless of anything Cazey's attorney could have done, and this evidence alone was enough to secure a conviction.

While it is possible that the performance of Cazey's trial counsel contributed to Cazey's receiving a 99-year sentence, we cannot say that such performance made any difference in Cazey's being convicted. Cazey is remanded to the custody of the Sheriff of Robertson County to answer to the indictment in trial court cause number 13,986, entitled The State of Texas vs. Leonard Odell Cazey.

REVERSED AND REMANDED

TERRY R. MEANS

DO NOT PUBLISHJustice