Christopher Wayne Smith v. The State of Texas--Appeal from 268th District Court of Fort Bend County

IN THE

TENTH COURT OF APPEALS

No. 10-93-195-CR

CHRISTOPHER WAYNE SMITH,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 268th District Court

Fort Bend County, Texas

Trial Court # 23,276

O P I N I O N

This is an appeal by Appellant Smith from his conviction for aggravated robbery, for which he was assessed 25 years in the Texas Department of Corrections, Institutional Division.

On September 4, 1991, two gunmen kicked in the door of the Albright home. Mr. and Mrs. Albright and daughter Kerry were at home. The gunmen terrorized the Albrights, pointed pistols at them, fired their pistols into the ceiling and a television. They stole many items of valuable property. Dan Tigner Davis, an accomplice, testified that he participated in the robbery with a person named Blackmon, Appellant, and another person. Appellant was positively identified as the person who threatened Mrs. Albright and Kerry. Blackmon was the robber who threatened Mr. Albright.

Appellant's sole defense was that he was not one of the robbers; that he had been misidentified and that Don Tigner Davis was actually one of the robbers who entered the house. The jury was correctly instructed on the law of parties in both the abstract definitions and in the paragraph applying the law to the facts.

Appellant appeals on eight points of error.

Point one: "The trial court misdirected the jury in the guilt-innocence charge by authorizing a conviction based on three alternatives, each of which is either not charged in the indictment or omits an essential element of the crime."

In the paragraph applying the law to the facts, the jury was instructed that if it found Appellant, while in the course of committing theft of property and with intent to obtain or maintain control of the property, intentionally or knowingly threatened Byron Albright with imminent bodily injury or death, or if it found that Appellant, while in the course of committing theft of property, intentionally or knowingly threatened or placed Byron Albright in fear of bodily injury or death and used or exhibited a deadly weapon, namely, a firearm, it was to find him guilty of aggravated robbery. The court further instructed the jury on the law of parties and correctly set forth all of the required elements that would establish Appellant's guilt as a party to the commission of aggravated robbery. Appellant made no objection to the charge.

The standard for reviewing a jury charge error is set forth in Almanza v. State, (Tex. Crim. App.) 686 S.W.2d 157. Such case holds that an error in the charge which has been properly preserved by objection will call for a reversal if the error is not harmless. If no objection was made at trial, as here, a reversal will result only if the error is so egregious and created such harm that the accused has not had a fair and impartial trial.

Here, Appellant was positively identified by Dorothy and Kerry Albright as the person who threatened them and pointed a gun at Mrs. Albright's ear. Appellant's sole defense was that he was misidentified. We hold that the asserted charge error was not egregious and was waived by Appellant's failure to object to the charge.

Additionally, the jury was correctly instructed on the law of parties, and could have convicted Appellant for his role in aiding Blackmon commit the aggravated robbery of Byron Albright. Point one is overruled.

Point two: "Appellant was denied effective assistance of counsel."

The standard for evaluating counsel's performance is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052. Under Strickland, there are two tests a defendant must meet. The defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. To demonstrate prejudice, he must show that there is reasonable probability that, but for counsel's unprofessional errors, the result would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Butler v. State, (Tex. Crim. App.) 716 S.W.2d 48. The effectiveness of counsel is judged by the totality of counsel's representation and not by isolated acts or omissions. Solis v. State, (Tex. Crim. App.) 792 S.W.2d 95.

Appellant alleges 11 errors of counsel:

1. failure to adequately investigate and prepare for trial.

This contention is not supported by the record. Trial counsel filed numerous pretrial motions. He interviewed Appellant's alibi witnesses; none could definitely say that Appellant was at home at the time of the robbery. He reviewed the State's file and spent over 60 hours on the case. He requested and was appointed an investigator.

2. failure to object to the indictment.

Appellant does not demonstrate how he was harmed. Had Appellant objected, the State could have amended or received a new indictment.

3. failure to preserve error when a defense challenge for cause was denied as to venireperson Ferguson.

Ferguson voiced some concern because she had been the victim of an aggravated robbery, but then testified that: she could give Appellant a fair trial; she could follow the instructions of the court; her prior experience would not affect her ability to be fair and impartial; and she would presume him innocent. The trial court correctly overruled Appellant's challenge for cause. Green v. State, (Tex. Crim. App.) 840 S.W.2d 394, 403-04. There was no error to preserve.

4. failure to make a bill of exceptions regarding prohibited cross examination of a State's witness.

Appellant gives no indication what the supposedly excluded testimony would have been or how it would have benefited the defense.

5. failure to call alibi witnesses.

These prospective witnesses were Appellant's mother and grandfather. Neither could say definitely that Appellant was at home the evening of the robbery. In a trial on the merits, failure to call was not a denial of effective representation. Cannon v. State, (Tex. Crim. App.) 668 S.W.2d 401-403.

6. failure to call defendant blackmon.

Blackmon testified at the motion for a new trial that Appellant was not present at the robbery, but admitted he had given a signed-written statement that Appellant was present at the robbery. Trial counsel cannot be faulted for making a strategic decision not to call Blackmon.

7. failure to call appellant to testify.

Had Appellant been called he would have been subject to cross examination and would have waived his privilege against self incrimination. Where an attorney's actions have a plausible basis, it cannot be said to be ineffective assistance. Matthews v. State, (Tex. App. Houston [14th Dist.]) 830 S.W.2d 342.

8. failure to object to the charge.

The isolated failure to object to certain procedure mistakes does not necessarily constitute ineffective assistance of counsel. Ingram v. State, (Tex. Crim. App.) 679 S.W.2d 503, 509. Moreover, the charge did not cause Appellant egregious harm and did not deny him a fair trial.

9. failure to object to improper reputation testimony in the punishment phase.

10. failure to object to evidence of extraneous offenses related to Appellant's incarceration or, alternatively, opened the door to the admissibility of those offenses.

Probation Officer Sumbry testified for the State that he was familiar with Appellant's reputation for being a violent person and that he was not a law-abiding citizen. This evidence was admissible at the punishment phase.

11. error in calling appellant to testify at the punishment phase.

Appellant made a sworn application for probation. It was necessary for Appellant to adduce evidence he had not been convicted of a felony. Polasola v. State, (Tex. Crim. App.) 460 S.W.2d 137. Counsel cannot be faulted for calling Appellant to provide that proof, and attempt to convince the jury he was a suitable candidate for probation. In reviewing the totality of trial counsel's representation, Appellant has not shown that counsel's performance was deficient, nor has he demonstrated a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Point two is overruled.

Point three: "The trial court erred in admitting into evidence an oral statement allegedly made by Appellant."

The statement of which Appellant complains was made to Officer Brussard while he was being transporting to the Juvenile Detention Center in Richmond. Without any prompting, Appellant told Brussard that he had told the truth earlier and that he had, in fact, been one of the actors who had committed the robbery with Blackmon. During earlier cross examination by defense counsel, Brussard testified that Appellant had given a statement that he was not at the scene of the robbery. Appellant, by his cross examination of Brussard, opened the door to the admission of the oral-contradictory statement by Appellant. Patterson v. State, (Tex. Crim. App.) 509 S.W.2d 857.

Point four: "The trial court erred in admitting into evidence in the punishment phase unadjudicated extraneous offenses."

In support of his application for probation in the punishment phase, Appellant offered his mother, sister and grandfather, all of whom testified they would help him abide by the terms of his probation if he were put on probation. Appellant himself testified that he was more mature than when he had been on probation earlier and would abide by the rules and that he had learned his lesson.

The State then asked Appellant about his conduct while in jail awaiting trial, which included fighting with an inmate, being disruptive, cursing an officer, and having a weapon, to-wit, a toothbrush with a razor blade tied to it. Appellant admitting to fighting and cursing but denied the weapon was his.

An accused who initiates evidence that he can comply with the law, if placed on probation, has "opened the door" to rebuttal evidence which may include proof of specific bad acts. Murphy v. State, (Tex. Crim. App.) 777 S.W.2d 44, 67; Griffin v. State, (Tex. Crim. App.) 787 S.W.2d 63, 67. Point four is overruled.

Point five: "The trial court erred in admitting into evidence, in punishment, a hearsay statement by a co-defendant implicating Appellant."

Appellant testified in his own behalf at the punishment phase and denied participating in the robbery. On cross examination he was asked what Blackmon had told him concerning Blackmon's involvement. Appellant responded that Blackmon was "willing to come on the stand and testify I was not there." Appellant was then asked if he was aware that Blackmon had given a prior statement in which he identified Appellant as one of the robbers. He answered, "Yes."

When Appellant volunteered the information that Blackmon would have testified he was not involved, the State was authorized to question him concerning the other statement that Blackmon had made on the same subject. Tex. R. Crim. Evid. 107; Bircher v. State, (Tex. Crim. App.) 491 S.W.2d 443. Point five is overruled.

Point six: "The trial court unduly restricted error examination of Kerry Albright."

Nothing is presented for review. There is nothing in the record to indicate what the testimony of Kerry Albright would have been. To preserve error, the record has to reflect what would have been shown. Fuller v. State, (Tex. Crim. App.) 827 S.W.2d 919. Point six is overruled.

Point seven: "The trial court erred by prohibiting defense counsel from making a full opening statement regarding the bias, motives, and prejudices of the State's witness Kerry Albright by reason of her sexual relationship with co-defendant Don Tigner Davis."

The trial court granted the State's motion in limine regarding proof of a sexual relationship between Kerry Albright and Davis, an accomplice witness. Article 36.01(a)(5), Texas Code of Criminal Procedure, provides: "The nature of the defenses relied upon, and the facts expected to be proved in their support, shall be stated by defendant's counsel."

During opening statement, defendant's counsel stated:

"You will also find that Kerry Albright, who was the alleged victim in this case, may have had a relationship with Don Davis, and that would tend to taint her testimony as to why she would say what she might say in this particular case."

The information concerning a supposed sexual relationship between Albright and Davis did not relate to the nature of the defenses relied on by Appellant, but rather, was information concerning impeachment of a State's witness. The trial court did not err in excluding the statement. Moreover, if error, from the record as a whole, it was harmless. Tex. R. App. P. 81(b)(2).

Point eight: "The trial court erred by allowing the State to cross examine Appellant concerning his guilt in the punishment phase."

Appellant testified in his own behalf in support of his request for probation. On cross examination, when asked whether he admitted responsibility on what he had done to the Albrights, he denied any involvement in the robbery. Appellant was asking the jury for probation. It was not error for the State to ask a defendant, who takes the stand in the punishment phase, whether he regrets committing the crime for which he has been found guilty by the jury. Wills v. State, (Tex. Crim. App.) 501 S.W.2d 925; Santiago v. State, (Tex. Crim. App.) 444 S.W.2d 758. Asking Appellant whether he admitted responsibility was little different than asking him if he was sorry or regretted his crime. Point eight is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice Retired

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 7, 1994

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