Neville Sapp v. The State of Texas--Appeal from 176th District Court of Harris County

Affirmed and Substitute Memorandum Opinion filed June 21, 2007

Affirmed and Substitute Memorandum Opinion filed June 21, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00268-CR

____________

NEVILLE SAPP, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris  County, Texas

Trial Court Cause No. 1005381

S U B S T I T U T E M E M O R A N D U M O P I N I O N

Appellant, Neville Sapp, was charged with attempted sexual assault, enhanced by two prior felony convictions. He pleaded not guilty, and the case was tried to a jury, which found him guilty, and assessed punishment at eighty years= confinement. Appellant raises four issues on appeal: 1) that the trial court=s instructions following the giving of an Allen charge were coercive in violation of the United States Constitution; 2) that the court erred in admitting into evidence a request for a protective order because the document was hearsay; 3) that the court erred in admitting the request for a protective order over relevancy objections; and 4) appellant was denied effective assistance of counsel when appellant=s attorney failed to object to a denial of confrontation when statements made by the complainant were admitted into evidence, both through the request for a protective order and the testimony of Lovette Obasi.[1]

Factual and Procedural Background

Appellant=s complaints do not touch upon the sufficiency of the evidence; therefore, only a brief summation of the facts is appropriate. The complainant, Ella Broussard, was abducted from a bus stop by her ex-boyfriend, appellant. Appellant and the complainant had been in a relationship for approximately seven years, and had a son together. The complainant had since gone on to marry another man, Olatunji Logunleko. She had been married to Logunleko for nearly two months when the abduction took place.

The complainant had been on a bus traveling to work, when she spotted appellant=s van following the bus. The complainant decided to get off the bus and go back home, so that appellant would not know where she worked. However, she missed the bus that would have taken her back toward her home, and was left waiting at the bus stop. Appellant drove up to the bus stop, and, despite the complainant=s protestations, put her into his van and drove back to his home. During this entire time, the complainant had been on and off the phone with her sister, who became distressed at the situation and called the police.

After reaching appellant=s home, the complainant was taken inside by appellant, where they remained until police arrived. The police surrounded appellant=s home, and tried to look into the home=s windows to learn whether the complainant was in danger. The police believed that they saw appellant=s genitals exposed through the window, and began knocking on the door and windows. Appellant answered the door, and the police separated him from the complainant. The complainant=s hair was mussed, and her pants and underwear were torn. The police questioned the complainant, and eventually arrested appellant.

Appellant was charged with attempted sexual assault, enhanced by two prior felony convictions. He pleaded not guilty, and the case was tried to a jury. The jury found appellant guilty of attempted sexual assault, and the enhancement allegations true. The same jury sentenced appellant to eighty years in prison.

Analysis

 I. Objection to Coercion in Court=s Instructions to Jury Is Waived

A. Court Instructed the Jury to Continue Deliberations

After the jury had retired for deliberations, it sent out a note to the court indicating that it was stuck at eleven jurors for guilty and one for not-guilty. The trial court responded with an Allen charge, informing the jury that if they could not reach a decision, a new jury would be empaneled, and would be faced with the same evidence and questions. The Allen charge also instructed the jury to continue deliberations in an effort to reach a verdict acceptable to all jurors, if the jurors could do so without Adoing violence@ to their consciences.

Following the Allen charge, the jury sent out another note, informing the court that the one hold-out for not-guilty felt as though violence was being done to her conscience, and that they felt they were done deliberating. The court stated on the record that it intended to respond with a note that simply said, APlease continue your deliberations.@ At this point appellant=s attorney moved for a mistrial, saying AJudge, if I can, I=d like to place on the record that I think the period of time of deliberations has now exceeded the period of time that it took to introduce the evidence to the jury. Based upon that and the jury=s latest note, on behalf of Mr. Sapp, I feel compelled to move for a mistrial at this time.@ This motion was overruled and the note was sent. Two additional notes were sent, echoing that the jury was still stuck at eleven to one. The court responded to both of these with notes saying, APlease continue your deliberations.@

 B. Appellant=s Complaint Was Waived

In his first issue on appeal, appellant contends that the court=s instructions to the jury following the Allen charge were coercive because the court knew that there was only one hold-out for not-guilty, because the court knew that the hold out felt she was having violence done to her conscience, and because the instructions following the Allen charge did not contain any of the Allen charge=s protective language regarding not doing violence to one=s conscience.

An objection or motion at trial must state the grounds for the requested ruling with enough specificity to make the trial court aware of the complaint, unless the grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1). When an appellant=s complaint on appeal does not comport with his objection or motion in the trial court, the error is not preserved for review. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005). Appellant=s motion for mistrial only complained of coercion due to the amount of time the jurors had been deliberating. The motion did not complain about the court=s instructions to the jury, or the fact that the hold-out juror felt she was having violence done to her conscience. The motion generally referred to the note from the jury and said that due to the time the jury had been deliberating, the court should declare a mistrial. This motion for mistrial differs from the complaint on appeal, and could not have drawn the court=s attention to the error now alleged. Here, appellant complains specifically that the court did not include the protective language of the Allen charge, which was especially harmful when only a single holdout remained. At trial, appellant=s counsel stated the following: AJudge, if I can, I=d like to place on the record that I think the period of time of deliberations has now exceeded the period of time that it took to introduce the evidence to the jury. Based upon that and the jury=s latest note, on behalf of Mr. Sapp, I feel compelled to move for a mistrial at this time.@ This objection did not notify the court of its failure to include the Allen charge=s protective language and the impact of that failure on the lone holdout. See Tex. R. App. P. 33.1(a)(1); Swain, 181 S.W.3d at 367.

II. No Error in Admitting Document

In appellant=s second issue, he complains of the admission of a document entitled AApplication for Protective Order@ because it contained hearsay. A timely objection was made to the admission of the document on the grounds that the document is based on hearsay. Without any response from the State, the trial court overruled the objection. It is this ruling that is complained of in appellant=s second issue.

A. Standard of Review

We review a trial court=s admission of evidence for an abuse of discretion. Gordon v. State, 191 S.W.3d 721, 727 (Tex. App.CHouston [14 Dist.] 2006, no pet.) (citing Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005)). If a party raises an objection to hearsay testimony, the burden shifts to the offeror to show the testimony is permissible pursuant to an exception to the hearsay rule. Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994). Even if an offered exception to the hearsay does not apply, we will affirm if the evidence is admissible on any ground. Kipp v. State, 876 S.W.2d 330, 337 (Tex. Crim. App. 1994).

B. Trial Court Did Not Err in Admitting the Document

The Texas Rules of Evidence provide that hearsay is Aa statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.@ Tex. R. Evid. 801(d). The document in question contains statements that appellant had engaged in conduct constituting family violence under the Texas Family Code. Such statements are hearsay if they were offered for the truth of the matter asserted and do not fit within an applicable exception.

The State argues that the document was not hearsay because it was not offered for the truth of the matter asserted, but rather to show that the complainant wanted to limit her contact with appellant at or near the time of the offense. This would mean the offer was not for the truth of the matter asserted but for a permissible purpose. See Tex R. Evid. 801(d). Even though the purpose of the offer was not stated to the trial judgeCwho overruled the objection without waiting for a response from the StateCwe must affirm, given this ground of admissibility. See Ortega v. State, 126 S.W.3d 618, 620 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).[2]

III. Application for Protective Order Was Relevant, and Any Rule 403 Objection Waived

Appellant=s third issue is that the application for the protective order was not relevant. An objection to relevance was raised at the same time as the hearsay objection, and it was similarly overruled without the benefit of any response by the State. Again, we review the admission of evidence under an abuse of discretion standard. Gordon, 191 S.W.3d at 727.

A piece of evidence is relevant if it has the tendency to make the existence of any fact of consequence to the determination of the case more or less probable than it would be without the evidence. Tex. R. Evid. 401. The application for a protective order is some evidence that the complainant no longer wanted a relationship, physical or otherwise, with appellant. The question of whether the encounter between appellant and the complainant was consensual is critical to this case. The request for a protective order provides some evidence that the encounter was not consensual, based on the fact that the complainant went so far as to seek court protection from appellant. The court did not abuse its discretion in admitting the document over a relevancy objection.[3] Appellant=s third issue is overruled.

IV. No Ineffective Assistance of Counsel Shown

Appellant=s fourth issue is that his trial counsel provided ineffective assistance due to a failure to object to both the application for a protective order and Obasi=s testimony of complainant=s statements to police as violations of the confrontation clause.

A. First Element of Strickland Not Satisfied

To prevail on an ineffective assistance claim, appellant must show: 1) counsel=s performance was deficient; and 2) the deficiency was so prejudicial that it rendered the trial unfair. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first element requires a showing that counsel=s representation fell below the objective standard of professional norms. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The second element has been interpreted to mean that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. A Areasonable probability@ is one sufficient to undermine confidence in the outcome. Id.

The determination of effectiveness of counsel must be made on the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. [Panel Op.] 1979). Allegations of ineffectiveness must be Afirmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. Appellant has the burden to rebut this presumption, by a preponderance of the evidence, with evidence illustrating trial counsel's motives. Green v. State, 191 S.W.3d 888, 894 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). Rarely will a reviewing court have a sufficient record on direct appeal to adequately reflect the failings of trial counsel. See Thompson, 9 S.W.3d at 813B14.

1. Record Is Insufficient to Support Ineffective Assistance Claim

We do not decide here whether the evidence elicited violated the confrontation clause or not. Even if it were inadmissible under the confrontation clause, appellant has failed to satisfy his burden to show the unreasonableness of the trial counsel=s actions under Strickland. The admission of evidence, possibly inadmissible under the confrontation clause, is not enough in and of itself to constitute error egregious enough to satisfy the first prong of Strickland as a matter of law. Appellant=s trial counsel may have reasonably believed that the evidence was admissible in this case. For instance, he may have believed that a confrontation clause objection would be overruled on the basis of forfeiture by wrongdoing on the part of appellant. Maybe he thought it more beneficial to let the objection pass, rather than poison the judge against appellant by having evidence presented to the court that appellant murdered the complainant. Whether this entered his mind or not, suffice it to say that plausible explanations exist as to why appellant=s trial counsel chose not to object on confrontation grounds to either piece of evidence. Because the record before us contains no evidence of trial counsel=s motives, we cannot say that appellant=s trial counsel acted unreasonably. See Jackson, 877 S.W.2d at 771; Green, 191 S.W.3d at 894. Issue four is overruled.

Conclusion

Having overruled each of appellant=s four issues for review, we affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Substitute Memorandum Opinion filed June 21, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] We issue this substitute opinion in order to clarify our discussion of appellant=s first issueCcoercion in the court=s instructions, and to reconsider our earlier disposition of appellant=s second issueCalleged error in admitting hearsay.

[2] The State also argues that any hearsay objection was forfeited by wrongdoing. Because we find that the document was not hearsay, we need not address this argument.

[3] Appellant also attempts to raise a Rule 403 objection in his brief, arguing that the document was highly prejudicial and of little probative value. This objection was not raised at the trial court. The objection at trial was a general objection to relevancy. Such an objection is insufficient to preserve error under Rule 403. Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App.1990) (op. on reh'g). Rather, a separate Rule 403 objection must be lodged to preserve the error. Id. Appellant, therefore, waived any error.