Jezreel Djuan Mark v. State of Texas--Appeal from 217th District Court of Angelina County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-00-00175-CR
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JEZREEL MARK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 217th Judicial District Court
Angelina County, Texas
Trial Court No. CR-21364
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Ross
O P I N I O N

Jezreel Mark was convicted by a jury for aggravated robbery. The court sentenced him to eight years' imprisonment in accordance with the jury's verdict. Mark appeals, alleging four points of error which can be combined into a single complaint: ineffective assistance of counsel. Mark complains his trial counsel (1) failed to invoke the rule excluding witnesses from the courtroom; (2) failed to object to the admission of a videotaped confession; (3) failed to request a mistrial; and (4) improperly introduced evidence concerning his use of marihuana.

Mark was convicted as a party to aggravated robbery of a pizza establishment. Although Mark did not enter the establishment, the gun used in the robbery belonged to him, and after James Specks used the gun during the robbery, Mark drove the vehicle from the scene with Specks as his passenger. Mark, testifying in his own behalf, admitted he had placed a gun under the seat of the vehicle in which he and Specks were riding on the evening of the robbery. He denied, however, knowing of Specks' intention to commit the robbery, that Specks had taken the gun from under the seat, or that Specks had committed the robbery. The State's evidence showed that soon after the robbery the manager of the pizza establishment gave the police a description of the vehicle in which the robber was traveling. The manager recognized the vehicle from earlier in the day when a person whom he identified as Mark, then a passenger in the vehicle, walked up to the drive-through window and asked the price of a pizza and what time they closed. Shortly after receiving this information, the police saw a vehicle matching the description and attempted to stop it. Mark, who was driving the vehicle, slowed down, and Specks jumped out and ran. Mark continued driving, with the police in pursuit. He eventually turned into a dead-end street, where he stopped the vehicle, exited, and ran across a yard. The police apprehended him as he was attempting to scale a privacy fence.

The United States and Texas Constitutions guarantee the right to reasonably effective counsel at trial. U.S. Const. amend. VI; Tex. Const. art. I, 10; Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) that trial counsel's performance was deficient, in that counsel made such serious errors that counsel was not functioning effectively as the "counsel" guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense to such a degree the defendant was deprived of a fair trial. Strickland, 466 U.S. at 687.

To satisfy the first prong of the test, an appellant must demonstrate that counsel's performance was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy. Strickland, 466 U.S. at 689; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). The second prong of the Strickland test requires an appellant to demonstrate that counsel's deficient performance prejudiced the defense, thereby depriving the defendant of a fair trial; that is, there is a reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different. Strickland, 466 U.S. at 687; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

A party claiming ineffective assistance of counsel has the burden of proving that claim by a preponderance of the evidence. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Review of counsel's representation is highly deferential, and courts indulge a strong presumption that trial counsel's conduct falls within a wide range of reasonable representation and that trial counsel's actions might be considered sound trial strategy. Strickland, 466 U.S. at 689; McFarland, 928 S.W.2d at 500. Counsel's performance is not evaluated in hindsight, but rather from counsel's perspective at the time of trial. Strickland, 466 U.S. at 689; Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993). We consider the totality of counsel's representation in evaluating an ineffectiveness claim; the claim cannot be demonstrated by isolating one portion of counsel's representation. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Any error in trial strategy will be deemed inadequate representation only if counsel's actions are without any plausible basis. Thomas v. State, 886 S.W.2d 388, 392 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd).

Mark's first complaint is that his trial counsel provided ineffective assistance by failing to invoke the rule excluding witnesses from the courtroom while other witnesses testified. The rule of exclusion serves two purposes: it prevents witnesses from tailoring their testimonies to fit that of other witnesses and, in the case of witnesses testifying for the same side, it enhances the jury's ability to detect falsehoods by exposing inconsistencies in their testimonies. Tex. R. Evid. 614; Tell v. State, 908 S.W.2d 535, 540 (Tex. App.-Fort Worth 1995, no pet.); see, e.g., Ex parte Robertson, 731 S.W.2d 564, 566 (Tex. Crim. App. 1987); Allen v. State, 536 S.W.2d 364, 367 (Tex. Crim. App. 1976).

Under Strickland, Mark must first show the attorney's failure to invoke the rule fell below the standard of prevailing professional norms. In assessing Mark's claim, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As far as strategic or tactical reasons for counsel's action or inaction, in the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, No. 73,804, 2001 Tex. Crim. App. LEXIS 75 (Tex. Crim. App. Oct. 3, 2001). We will not conclude the challenged conduct constitutes deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id.; see Thompson, 9 S.W.3d at 814.

Although Mark filed a motion for new trial, his sole contention in that motion was that evidence existed which would entitle him to a new trial. The motion did not specify the nature of this evidence, and ineffective assistance of counsel was not mentioned. There are a number of reasons why counsel might not invoke the rule in any given case. In this case, there is nothing in the record showing why Mark's counsel did not invoke the rule. Thus, Mark has failed to show his counsel's action was unreasonable under prevailing professional norms and was not sound trial strategy.

Mark's second claim of ineffective assistance is that his counsel failed to object to the admission of a videotaped statement in which he admitted the gun used in the robbery was his. Mark contends counsel should have objected to the introduction of this statement on the ground the State failed to lay a proper predicate.

The general rule is that an objection to the admission of evidence on the ground of failure to lay a proper predicate is too general to merit consideration except where the specific ground is apparent from the context, or the evidence is inadmissible for any purpose. Wagner v. State, 720 S.W.2d 827, 829 (Tex. App.-Texarkana 1986, pet. ref'd). Any omissions in the predicate must be complained of specifically. Bird v. State, 692 S.W.2d 65 (Tex. Crim. App. 1985); Harris v. State, 565 S.W.2d 66 (Tex. Crim. App. 1978); Boss v. State, 489 S.W.2d 582 (Tex. Crim. App. 1972); Bennett v. State, 394 S.W.2d 804 (Tex. Crim. App. 1965); see also Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977). Therefore, trial counsel would have had to make a more specific objection than just failure to lay a proper predicate.

Mark also contends his counsel should have required the State to prove the videotape had been held before trial in the property room of the local authorities by the custodian of that department and that the videotape had not been tampered with by anyone after it came into the custodian's possession. Mark cites Article 38.22, 3(b), which requires every electronic recording of any statements made by an accused during a custodial interrogation be preserved until appeals have been exhausted or prosecution is barred by law. Tex. Code Crim. Proc. Ann. art. 38.22, 3(b) (Vernon Supp. 2002).

The record is silent as to why Mark's counsel failed to object to the introduction of the videotaped statement; therefore, Mark has failed to rebut the presumption this was a reasonable decision. See Thompson, 9 S.W.3d at 814. We know from the record Mark and his attorney viewed the videotape before trial. What we do not know is if Mark's trial counsel knew the videotape had been properly preserved in compliance with Article 38.22, 3(b) and therefore knew an objection on that basis would serve no purpose. Because the record does not show why trial counsel did not object to the admission of the videotape, we cannot find trial counsel acted imprudently.

Mark contends his counsel should have objected to the admission of the videotaped statement for the additional reason that he had told his counsel before trial that the police had attempted to take another statement from him before this videotaped statement and that, on this previous occasion, he had requested a lawyer. The record shows Mark's counsel consulted with the prosecutor before trial concerning whether the police had in fact attempted a prior interview with Mark at which time Mark requested counsel. The prosecutor checked with the police, who told him only one interview had occurred-the videotaped statement.

It appears that Mark's counsel should have objected to the videotaped statement based solely on the information he received from his client. However, at the time the State sought to admit this evidence, Mark's counsel had inquired into the matter and was under the impression the police would testify that no other interviews had been attempted. We cannot say counsel's failure to object was without any plausible basis.

Mark's third complaint is that his trial counsel was ineffective because he failed to move for a mistrial after the prosecutor, during a recess at the guilt/innocence phase of the trial, told counsel he had just learned Mark had indeed requested counsel in another attempted interview by the police before the videotaped statement was made. According to the record, the prosecutor did not learn of this situation until after the videotaped statement had been admitted into evidence. On receiving this information from the prosecutor, Mark's counsel discussed the situation with the trial judge on the record and spoke of his dilemma concerning whether he should seek a mistrial. He states on the record that he discussed the situation with his client and that it was Mark's "decision that he does not want to attempt to start over in this trial, to have a mistrial, and would rather proceed under the evidence that we have submitted before the Court at this point." There is nothing else in the record indicating what occurred during the meeting between Mark and his counsel. We therefore presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson, 877 S.W.2d at 771. We do not know whether trial counsel knew of other evidence available to the State linking Mark to the gun, such as the testimony of Specks, and to what extent this may have influenced the decision not to seek a mistrial. Mark has the burden of proof and has failed to rebut the presumption that counsel's actions were reasonably professional and motivated by sound trial strategy.

Mark's final complaint is his trial counsel erred by presenting evidence before the jury that Mark had used marihuana on the day of the robbery. He contends the introduction of this type of extraneous act is inherently prejudicial. This evidence showed that on the afternoon before the robbery Mark smoked marihuana and was taken to the emergency room of a hospital because he was suffering from hallucinations and an accelerated heart rate. He was treated and released from the hospital. The robbery occurred during the early morning hours of that same evening. Mark's counsel presented four witnesses, including Mark, all of whom testified regarding the events in the emergency room and Mark's delusional behavior on the day of the robbery. They attributed Mark's unusual conduct that day to his smoking of marihuana.

Although disturbance of mental or physical capacity resulting from the voluntary introduction of any substance into the body does not constitute a defense to the commission of a crime, (1) the obvious strategy of Mark's counsel in presenting this evidence was to try to gain sympathy from the jury and to show Mark's diminished culpability in the commission of the offense. While we may now question the wisdom of that strategy, we must evaluate counsel's performance from counsel's perspective at the time of trial. Based on the totality of counsel's representation, we cannot say his actions were unreasonable.

Mark has failed to rebut the presumption that counsel's actions were reasonably professional under the first prong of Strickland on all four of the alleged errors made by his counsel. Nothing in the record indicates the reasoning of trial counsel with regard to any of the alleged trial deficiencies. See Thompson, 9 S.W.3d at 814. In the absence of evidence to the contrary, we presume the actions taken by trial counsel were part of trial strategy. Strickland, 466 U.S. at 689; Jackson, 877 S.W.2d at 771. Mark's claims of ineffective assistance of trial counsel are overruled.

A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Thompson, 9 S.W.3d at 813. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. Id. This is not to say a case cannot be made on direct appeal, but it is easier if the record has been expanded by a motion for new trial addressing the issue of ineffective assistance on which a hearing is held or by filing a writ of habeas corpus. Id. at 813-14.

We affirm the judgment.

 

Donald R. Ross

Justice

 

Date Submitted: November 19, 2001

Date Decided: December 11, 2001

 

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1. Tex. Pen. Code Ann. 8.04(a), (d) (Vernon 1994).