COURT OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-255-CR*
CHRISTOPHER
XAVIER FRANKLIN APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 78TH DISTRICT COURT OF WICHITA COUNTY
MEMORANDUM OPINION1
I. Introduction
Appellant
Christopher Xavier Franklin appeals his conviction of burglary of a habitation.
Counsel on appeal has filed an Anders brief asserting that there are no
grounds that could be argued successfully on appeal. Appellant has filed a pro
se brief raising one point on appeal. We grant counsel’s motion to withdraw,
address and overrule appellant’s point, and affirm the trial court’s
judgment.
II. Background Facts
On
December 11, 2003, Keith Jones was at his house with several companions when a
man later identified as appellant broke into his house, threatened them with a
knife, stole some items of personal property, and ran away. Police went to
appellant’s house where they found him lying on his couch. Police found a
knife similar to the one Jones described and some of the personal property taken
from Jones’s house. A jury found appellant guilty of burglary of a habitation
and assessed his punishment at forty-five years’ confinement.
III. The Anders Brief
Appellant’s
court-appointed appellate counsel has filed a motion to withdraw as counsel and
a brief in support of that motion. In the brief, counsel avers that, in his
professional opinion, this appeal is frivolous. Counsel’s brief and motion
meet the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (1967), by presenting a professional evaluation of the record demonstrating
why there are no arguable grounds for relief.
Once
appellant's court-appointed counsel files a motion to withdraw on the ground
that the appeal is frivolous and fulfills the requirements of Anders, we
are obligated to undertake an independent examination of the record and to
essentially rebrief the case for appellant to see if there is any arguable
ground that may be raised on appellant's behalf. See Stafford v. State,
813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
IV. Independent Review
A. Pretrial
Appellant
did not file a motion to quash the indictment. The indictment charges appellant
with burglary of a habitation, tracks the applicable statutory language, and was
sufficient to confer jurisdiction on the trial court. See Tex. Const. art. V, § 12; Tex. Penal Code Ann. § 30.02 (Vernon
2003); Duron v. State, 956 S.W.2d 547, 551 (Tex. Crim. App. 1997). During
voir dire, neither the State nor appellant objected to questions asked of the
venire. The trial court granted the State’s only challenge for cause over
appellant’s objection. Appellant made two challenges for cause. The trial
court granted one but denied the other one.
A
trial court is in the best position to evaluate the demeanor of a prospective
juror. See Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992), cert.
denied, 509 U.S. 926 (1993). Thus, we review a trial court’s determination
of a challenge for cause for abuse of discretion. Id. Here, the State
challenged a prospective juror for cause, arguing that she could not consider
the full range of punishment. The prospective juror had previously stated during
voir dire that she did not think she could consider the full range of punishment
for the offense. Although appellant attempted to rehabilitate the prospective
juror, the trial court ultimately granted the State’s challenge. The trial
court was in the best position to evaluate the prospective juror’s demeanor
and decide whether she could, in fact, consider the full range of punishment for
the offense. Therefore, we cannot say that the trial court abused its discretion
by granting the State’s challenge for cause.
To
obtain a reversal based on a trial court’s erroneous denial of a valid
challenge for cause, an appellant must first show that he was harmed by the
trial court’s action. Narvaiz v. State, 840 S.W.2d 415, 427 (Tex.
Crim. App. 1992), cert. denied, 507 U.S. 975 (1993). An appellant
may do this by showing that he exhausted his peremptory challenges, that the
trial court denied his request for additional peremptory challenges, and that a
juror on whom he would have exercised a peremptory challenge was seated. Id.
In the present case, the record does not indicate whether appellant exhausted
his peremptory challenges and if so whether he requested more. Thus, our review
of the record reveals that no reversible error occurred during pretrial.
B. Guilt-Innocence Phase
Keith
Jones lives at 409 Kentucky in Wichita Falls, Texas. He testified that around
11:30 p.m. on December 11, 2003, he was at his house with several companions
when appellant began trying to break into his house. He testified that appellant
kicked down a door, came inside, and began threatening everyone with a knife.
Jones then went to his neighbor’s house to call the police. Jones testified
that while he was at his neighbor’s house, he saw appellant leave his house
carrying some of his personal belongings.
During
cross-examination, appellant’s counsel asked Jones whether appellant had ever
shown him a knife during his previous visits to Jones’s house Jones replied,
“Yeah. In fact, one time he showed me a gun, said he was going to blow me
away.” Appellant objected, arguing the answer was nonresponsive. The trial
court sustained the objection, instructed the jury to disregard, but denied
appellant’s request for a mistrial. Walter Fuller, who was in Jones’s house
on December 11, also testified that appellant broke into the house, threatened
everyone with a knife, and stole some of Jones’s things. He testified that
appellant appeared to have been drinking.
Mistrial
When
objectionable testimony is introduced, either deliberately or inadvertently, an
appellate court presumes the jury followed the trial court’s instructions to
disregard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert.
denied, 529 U.S. 1070 (2000); Drake v. State, 123 S.W.3d 596, 604
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). “This is true ‘except
in extreme cases where it appears that the . . . evidence is clearly calculated
to inflame the minds of the jury and is of such a character as to suggest the
impossibility of withdrawing the impression produced on their minds.’“ Gardner
v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987) (quoting Campos v.
State, 589 S.W.2d 424, 428 (Tex. Crim. App. 1979)), cert. denied, 484
U.S. 905 (1987). We review a trial court’s denial of a motion for mistrial for
abuse of discretion. Ladd, 3 S.W.3d at 567.
In
the present case, the State did not elicit Jones’s testimony relating to
appellant’s showing him a gun and telling him that he would blow him away.
Rather, Jones’s testimony came in response to a question posed by defense
counsel. See Drake, 123 S.W.3d at 604. The trial court immediately
instructed the jury to disregard. See id. We cannot say that the
testimony was so inflammatory that the jurors could not follow the trial
court’s instruction. See id. Therefore, the trial court did not abuse
its discretion by denying appellant’s motion for mistrial.
Wichita
Falls Police Officer Robert Woodruff testified that on December 11, 2003 he was
dispatched to Jones’s house regarding a burglary in progress. Appellant had
already left when Officer Woodruff arrived. After Jones and his companions
identified appellant as the one who committed the burglary, Officer Woodruff
drove to appellant’s house. Officer Woodruff testified that appellant’s
front door was open and that he could see appellant lying on his couch. Officer
Woodruff told appellant that he needed to talk to him, and appellant invited him
inside. On appellant’s floor, Officer Woodruff found a knife that was similar
to the one described by the occupants of Jones’s house. Officer Woodruff’s
partner, Officer Mason Wiese, found a bag containing some of Jones’s personal
property in appellant’s bathroom. Officer Woodruff testified that appellant
was intoxicated and that appellant told him he had recently smoked crack
cocaine.
Officer
Woodruff testified that after he arrested appellant and put him in the backseat
of his police car, appellant became violent and kicked out one of the windows.
Appellant objected, arguing that the testimony referred to extraneous conduct,
which the State had not given notice it would offer. The State argued that the
incident was contextual and an indication of appellant’s guilt. The trial
court overruled appellant’s objection.
Extraneous
Conduct
Extraneous
conduct is admissible as same-transaction contextual evidence when it is “so
intertwined with the charged offense that testimony cannot be given regarding
the charged crime without showing the extraneous [conduct] as well or when the
charged offense would make little or no sense without also bringing in the
same-transaction evidence.” Best v. State, 118 S.W.3d 857, 864 (Tex.
App.—Fort Worth 2003, no pet.). Moreover, the State is generally entitled to
show the circumstances surrounding an arrest. Couret v. State, 792 S.W.2d
106, 107 (Tex. Crim. App. 1990). However, the evidence must be relevant to a
material issue in the case, and the probative value must outweigh the
prejudicial value. Id. The erroneous admission of an extraneous offense
is not constitutional error. Best, 118 S.W.3d at 864. Therefore, we must
disregard the error unless it affected appellant’s substantial rights. Id.
We
cannot say that appellant’s act of kicking out the window of Officer
Woodruff’s patrol car was so intertwined with the charged offense to make it
admissible as same-transaction contextual evidence. Nor can we say that
appellant’s act was material to an issue in the case. However, even if the
trial court abused its discretion by admitting Officer Woodruff’s testimony,
because there was substantial evidence of appellant’s guilt, we conclude that
the admission of this evidence did not have a substantial and injurious effect
on the jury’s verdict and therefore did not affect appellant’s substantial
rights.
Neither
side objected to the jury charge. After closing arguments, the trial court sent
the jury to deliberate. The jury deliberated for a while and then sent a note to
the trial court asking whether the State must prove that appellant had the
intent to steal before entering Jones’s house. The trial court proposed
responding to the jury’s question by telling them that it was not allowed to
answer their question and by referring them to the language in the jury charge.
Appellant objected, arguing that the trial court should answer “yes” to the
jury’s question. However, the trial court ultimately answered the jury’s
question with the response it had originally proposed by telling them to refer
to the language in the jury charge. The jury found appellant guilty of burglary
of a habitation.
Question
from the Jury
According
to article 36.27 of the code of criminal procedure, after a jury has begun
deliberating, it may communicate with the court in writing. Tex. Code Crim. Proc. Ann. art. 36.27
(Vernon 1981). A jury may request additional instructions on questions of law if
the request is proper. See Ishmael v. State, 688 S.W.2d 252, 262 (Tex.
App.—Fort Worth 1985, pet. ref’d). If the request from the jury for
additional instructions is not proper, the trial court should refer the jury to
the court’s charge. Id. Here, the jury charge properly set forth the
elements of the offense of burglary of a habitation. See Tex. Penal Code Ann. § 30.02(a)(1).
Therefore, we hold that the trial court did not err when it responded to the
jury’s question by referring the jury to the language in the jury charge.
Sufficiency
of the Evidence
Jones
and Fuller testified that they saw appellant beak into Jones’s house, threaten
the occupants with a knife, and leave with some of Jones’s personal
belongings. Moreover, Officer Woodruff testified that he found appellant lying
on his couch with the knife on the floor beside him, and Officer Wiese testified
that he found a bag containing Jones’s personal belongings in appellant’s
bathroom. Applying the appropriate standards of review,2
we hold the evidence is legally and factually sufficient to convict appellant of
burglary of a habitation.
C. Punishment
At
the punishment phase of the trial, appellant pled true to two enhancement
paragraphs, each alleging a prior felony conviction. The State offered all of
the testimony and exhibits previously admitted, and appellant reurged his
previous objections. The State offered pen packets from the Texas Department of
Criminal Justice and a stipulation of evidence from appellant and then rested.
Appellant called his father, Louis Eddy Franklin, to testify. He testified that
appellant’s main problem was drugs and that appellant could be rehabilitated
and be a contributing member of society. Appellant did not object to the trial
court’s charge on punishment, and the jury assessed his punishment at
forty-five years’ confinement. The trial court properly instructed the jury on
the applicable range of punishment and on applicable parole laws, and the jury
assessed punishment within the permissible statutory range. See Tex. Penal Code Ann. § 12.32 (Vernon
2003), § 12.42(d) (Vernon Supp. 2004-05).
V. The Pro Se Brief
In
his sole point, appellant argues that he was denied effective assistance of
counsel during the punishment phase of the trial. Appellant contends that he was
intoxicated at the time of the burglary and that counsel failed to introduce
expert testimony on the effects of intoxication and failed to request a
mitigating instruction on voluntary intoxication in the charge to the jury.
We
apply a two-pronged test to ineffective assistance of counsel claims. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Thompson
v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, appellant must
show that his counsel’s performance was deficient; second, appellant must show
the deficient performance prejudiced the defense. Strickland, 466 U.S. at
687, 104 S. Ct. at 2064; Hernandez v. State, 988 S.W.2d 770, 770 (Tex.
Crim. App. 1999).
In
evaluating the effectiveness of counsel under the first prong, we look to the
totality of the representation and the particular circumstances of each case. Thompson,
9 S.W.3d at 813. The issue is whether counsel’s assistance was reasonable
under all the circumstances and prevailing professional norms at the time of the
alleged error. See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065.
“[C]ounsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional
judgment.” Id. at 690, 104 S. Ct. at 2066. An allegation of ineffective
assistance must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d
at 813. Our scrutiny of counsel’s performance must be highly deferential, and
every effort must be made to eliminate the distorting effects of hindsight. Strickland,
466 U.S. at 689, 104 S. Ct. at 2065.
The
second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial
whose result is reliable. Id. at 687, 104 S. Ct. at 2064. In other words,
appellant must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient
to undermine confidence in the outcome. Id. The ultimate focus of our
inquiry must be on the fundamental fairness of the proceeding whose result is
being challenged. Id. at 697, 104 S. Ct. at 2070.
Section
8.04(b) of the penal code allows a defendant to offer evidence of temporary
insanity caused by voluntary intoxication to mitigate punishment. Tex. Penal Code Ann. § 8.04(b) (Vernon
2003). A jury may take this evidence into consideration in mitigation of the
penalty, if any, that it assesses. See Ramos v. State, 991 S.W.2d 430,
435 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). To be entitled to a
jury instruction on temporary insanity caused by voluntary intoxication for the
purpose of mitigation, however, a defendant must first establish that, as a
result of his voluntary intoxication, he either (1) did not know that his
conduct was wrong, or (2) was incapable of conforming his conduct to the
requirements of the law he violated. Cordova v. State, 733 S.W.2d 175,
190 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1240 (1988).
In
the present case, Walter Fuller and Officer Woodruff testified only that
appellant was intoxicated. Neither testified that as a result of his
intoxication, appellant either (1) did not know that his conduct was wrong, or
(2) was incapable of conforming his conduct to the requirements of the law he
violated. Thus, because appellant presented no evidence of temporary insanity
caused by voluntary intoxication, he was not entitled to a jury instruction on
that issue. Moreover, the record does not indicate why trial counsel did not
present expert testimony on the effects of appellant’s intoxication.
We
conclude and hold that appellant was not entitled to a jury instruction on
temporary insanity caused by voluntary intoxication for the purpose of
mitigation of punishment. Further, our independent review of the record
indicates that trial counsel rendered effective assistance. We overrule
appellant’s sole point.
VI. Conclusion
Our
independent review of the record compels us to agree with counsel’s
determination that any appeal in this case would be frivolous. Thus, we grant
counsel’s motion to withdraw on appeal, overrule appellant’s point, and
affirm the trial court’s judgment.
TERRIE
LIVINGSTON
JUSTICE
PANEL
A: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DAUPHINOT,
J. filed a concurring opinion
DO
NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED:
June 9, 2005
NO. 2-04-255-CR
CHRISTOPHER
XAVIER FRANKLIN APPELLANT
THE
STATE OF TEXAS STATE
CONCURRING OPINION
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I
write separately only to point out that Appellant’s claim of ineffective
assistance is better raised in a writ of habeas corpus.1
LEE
ANN DAUPHINOT
NOTES
* Majority Opinion by Justice Livingston; Concurring Opinion
by Justice Dauphinot
MAJORITY
OPINION NOTES
1. See
Tex. R. App. P. 47.4.
2.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979 (legal
sufficiency); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004)
(same); see also Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App.
2004) (factual sufficiency).
CONCURRING OPINION NOTES
1.
See Thompson v. State, 9 S.W.3d 808, 814 & n.6 (Tex. Crim. App.
1999); Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex. Crim. App. 1997).