Danny Wayne Alcoser v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-18-00032-CR ________________________

DANNY WAYNE ALCOSER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 19th District Court McLennan County, Texas Trial Court No. 2016-1261-C1 (Counts I, II & III); Honorable Ralph T. Strother, Presiding

August 9, 2022

MEMORANDUM OPINION ON REMAND Before QUINN, C.J., and PARKER, J., and PIRTLE, S.J. 1

By opinion and judgment dated December 20, 2019, this court reversed three

convictions of Appellant, Danny Wayne Alcoser, related to a domestic violence incident

based on improper jury instructions which this court found had caused him egregious

1 Senior Justice Patrick A. Pirtle, retired, sitting by assignment. TEX. GOV’T CODE ANN. § 75.002(a)(1). harm (Issues Two and Three). See Alcoser v. State, 596 S.W.3d 320, 338 (Tex. App.—

Amarillo 2019). On the State’s petition for discretionary review, the Court of Criminal

Appeals reversed this court’s decision and remanded the case for further consideration

of Appellant’s remaining issues on whether the trial court abused its discretion in denying

a mistrial (Issue One) and whether the evidence is factually insufficient to support his

conviction in Count I for assault family violence (Issue Four). 2 See Alcoser v. State, __

S.W.3d __, No. PD-0166-20, 2022 Tex. Crim. App. LEXIS 186 (Tex. Crim. App. March

30, 2022). In its opinion, the Court of Criminal Appeals noted that the State did not dispute

that this court “correctly reversed Appellant’s convictions in Count II for endangering a

child and in Count III for interference with an emergency request for assistance” and thus,

did not address them. Id. at *11. In our review on remand, we now affirm the assault

family violence conviction.

Prior to the release of the Court of Criminal Appeals opinion, but subsequent to the

release of our opinion, Appellant filed an Amended Motion for New Trial raising issues of

ineffective assistance of counsel. Following remand to this court from the Court of

Criminal Appeals, Appellant filed a pro se Motion to Withdraw Appellate Counsel and to

Self-Represent. By order dated May 19, 2022, this court denied that motion and

explained that withdrawal of appointed counsel was a matter within the purview of the trial

court’s authority. See TEX. CODE CRIM. PROC. ANN. art. 26.04(j). By our order, Appellant

was advised that self-representation on direct appeal was reviewed on a case-by-case

2 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the Tenth Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.

2 basis, keeping in mind the best interests of the appellant, the State, and the administration

of justice. The matter was then remanded to the trial court in order that it might admonish

Appellant as to the dangers of self-representation and at the same time, consider

Appellant’s motion to self-represent.

Subsequent to our order of May 19, 2022, Appellant filed an Original Petition for

Writ of Prohibition with the Texas Court of Criminal Appeals. On July 20, the Court denied

Appellant’s motion for leave to file, without written order.

A hearing was held before the trial court on this court’s order of May 19 on June

23, 2022. Alan Bennett appeared as Appellant’s counsel. The court determined that

Appellant did desire to be represented by counsel but he further desired that Mr. Bennett

be removed as his counsel. The court, therefore, appointed Robert Callahan to replace

Mr. Bennett and rescheduled the hearing for July 13, 2022. On July 12, 2022, Appellant

requested that he be allowed to substitute retained counsel for his appointed counsel.

Appellant’s request was granted, and Tate Saunders was allowed to substitute for Mr.

Callahan as Appellant’s attorney of record. A hearing was held on July 13, 2022, with Mr.

Saunders appearing as Appellant’s counsel. At the conclusion of that hearing, the trial

court ordered that Appellant’s Second Motion for New Trial be denied. The trial court

subsequently entered findings of fact and conclusions of law as requested by this court.

Now pending before this court are the remaining issues from Appellant’s original

appeal (whether the trial court abused its discretion in denying a mistrial (Issue One) and

whether the evidence is factually insufficient to support his assault conviction (Issue

3 Four)), as well as issues raised by the filing of Appellant’s Second Motion for New Trial.

We will address each issue individually. 3

ISSUE ONE—MISTRIAL

A mistrial is an appropriate remedy in “extreme circumstances” for a narrow class

of highly prejudicial and incurable errors. See Ocon v. State, 284 S.W.3d 880, 884 (Tex.

Crim. App. 2009) (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). A

mistrial is used to halt proceedings when the error is so prejudicial that it makes the

expenditure of further time and expense wasteful and futile. Ocon, 284 S.W.3d at 884

(citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). The decision to grant

a mistrial is governed by the particular facts of the case. Ladd, 3 S.W.3d at 567. We

review a trial court’s decision to deny a motion for mistrial for abuse of discretion. See

Ocon, 284 S.W.3d at 884. The denial of the motion for mistrial must be upheld if, when

viewing the evidence in the light most favorable to the denial, it was within the zone of

reasonable disagreement. Id.

Ordinarily, a prompt instruction to disregard will cure any prejudice arising from an

inadvertent statement. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000);

Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998). On appeal, there is a

presumption that the jury followed the trial court’s instructions. McConnell v. State, No.

10-17-00254-CR, 2019 Tex. App. LEXIS 2663, at *4 (Tex. App.—Waco April 3, 2019, no

pet.) (mem. op., not designated for publication) (citing Thrift v. State, 176 S.W.3d 221,

3 “When jurisdiction over the cause is restored by remand, neither statutes nor scanty prior

decisions dictate that the court of appeals is limited in its renewed appellate consideration of the cause to the terms of [the Court of Criminal Appeals] order of remand.” Garrett v. State, 749 S.W.2d 784, 787 (Tex. Crim. App. 1986).

4 224 (Tex. Crim. App. 2005)). The presumption must be rebutted by evidence indicating

the jury failed to follow the trial court’s instructions. Thrift, 176 S.W.3d at 224.

In determining whether an offending statement is “highly prejudicial and incurable,”

reviewing courts have applied the three-factor balancing test articulated in Mosley v.

State, 983 S.W.2d 249, 259 (Tex. 1998). See Archie v. State, 221 S.W.3d 695, 700 (Tex.

Crim. App. 2007). Reviewing courts look at the following: (1) the severity of the

misconduct (i.e., the magnitude of the prejudicial effect of the prosecutor’s remark); (2)

the curative measures taken (the efficacy of any cautionary instruction by the trial judge);

and (3) the certainty of conviction absent the misconduct (the strength of the evidence

supporting the conviction). Mosley, 983 S.W.2d at 259.

Just prior to trial, both parties presented motions in limine which the trial court

granted. The State agreed not to question witnesses regarding Appellant’s alleged

extraneous conduct other than on the date of the offense and not to delve into any acts

regarding the minor children including matters related to CPS proceedings without first

approaching the bench.

During Sergeant Tucker’s testimony, Appellant insinuated that lazy police work

was behind the decision to not interview the child, T.W. Sergeant Tucker explained he

did not interview T.W. to avoid further trauma to the child. Defense counsel’s objection

based on the motion in limine was sustained and the trial court instructed the jury to

disregard the witness’s comment. A motion for mistrial was denied.

Additionally, while the complainant was testifying, she was asked if being choked

by Appellant was an accident to which she replied, “[i]t wasn’t the first time.” Defense

5 counsel’s objection that the question elicited an extraneous offense answer was

sustained and the jury was again instructed to disregard the answer. A second motion

for mistrial was denied.

Again, during the complainant’s testimony, when asked whether Appellant had

“disappeared” after her grandmother died, she responded, “[w]e had been ordered to

participate in . . . counseling.” 4 Before she could finish her response, defense counsel

objected and obtained a favorable ruling, and the jury was instructed for a third time to

disregard complainant’s comments. Another motion for mistrial was denied. Appellant

contends that the “collective weight” of the State’s violations of his motion in limine were

incurable. We disagree.

With each violation of Appellant’s motion in limine, defense counsel’s objections

were immediately sustained and the jury was promptly instructed to disregard any

offending answers or comments. The motion in limine violation occurring during Sergeant

Tucker’s testimony was in response to Appellant’s suggestion of lazy police work and

elicited nothing more than a statement regarding the circumstantial res gestae facts

surrounding the offense. The two violations that occurred during the complainant’s

testimony were not solicited by the prosecutor; rather, the complainant voluntarily offered

information that went beyond the scope of the questions and was not overtly prejudicial.

See Brown v. State, Nos. 14-13-00057-CR through 14-13-00060-CR, 2014 Tex. App.

LEXIS 8972, at *11 (Tex. App.—Houston [14th Dist.] Aug. 14, 2014, pet. ref’d) (mem. op.,

not designated for publication) (finding no abuse of discretion where the witness gave an

4 The complainant was referring to court-ordered counseling involving CPS matters.

6 unresponsive answer in violation of a motion in limine that was not solicited by the

prosecutor).

Applying the Mosely factors, we do not find that the complained-of violations fall

within the “narrow class of highly prejudicial and incurable errors.” They were not

calculated to inflame the minds of the jury. See England v. State, No. 10-05-00021-CR,

2006 Tex. App. LEXIS 2524, at *5 (Tex. App.—Waco March 29, 2006, pet. ref’d) (mem.

op., not designated for publication). We find the trial court did not abuse its discretion in

denying Appellant’s multiple requests for a mistrial. Issue one is overruled.

ISSUE FOUR—FACTUALLY INSUFFICIENT EVIDENCE

By his fourth issue, Appellant contends that, consistent with the Texas Constitution

and the Code of Criminal Procedure, factual insufficiency should be reinstated. Based

on that premise, he further contends that the evidence is factually insufficient to support

the jury’s rejection of his claim of self-defense as to the assault conviction.

Acknowledging that factual sufficiency review in a criminal case was abrogated by

the Texas Court of Criminal Appeals in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App.

2010), Appellant nevertheless urges this court to conduct such a review of his convictions

based on Article V, Section 6 of the Texas Constitution and article 44.25 of the Texas

Code of Criminal Procedure. 5 Having considered Appellant’s arguments, we decline his

invitation to conduct a factual sufficiency review of either his claim of self-defense or his

other convictions. Under the time-honored principle of stare decisis, this court is bound

5 Article V, section 6 provides that appellate court decisions “shall be conclusive on all questions of fact brought before them on appeal.” Article 44.25 provides that appellate courts are authorized to reverse a judgment “upon the facts.” TEX. CODE CRIM. PROC. ANN. art. 44.25.

7 to follow clear precedent established by a higher court. See Adams v. State, 502 S.W.3d

238, 244 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). See generally Butcher v.

State, 454 S.W.3d 13, 20 (Tex. Crim. App. 2015) (observing that Brooks abolished factual

sufficiency review in criminal convictions (but noting that affirmative defenses continue to

be evaluated for factual sufficiency)).

Just to be clear, however, self-defense is classified as a defense, with burdens at

trial that alternate between the defense and the State, not an affirmative defense. Zuliani

v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (explaining that self-defense is

“classified as a defense, as opposed to an affirmative defense”). Saxton v. State, 804

S.W.2d 910, 912 n.5 (Tex. Crim. App. 1991) (noting that self-defense is a defense to

prosecution under section 2.03 of the penal code). Therefore, the Clewis factual-

sufficiency standard does not apply when we conduct a review of the sufficiency of the

evidence to support the jury’s implied rejection of a defendant’s claim of self-

defense. Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref'd) (“Because the State bears the burden of persuasion to disprove a section 2.03

defense by establishing its case beyond a reasonable doubt, we review both legal

and factual sufficiency challenges to the jury’s rejection of such a defense under the

Jackson v. Virginia standard.”). See Brooks, 323 S.W.3d at 912. Accordingly, we resolve

Appellant’s fourth issue against him.

AMENDED MOTION FOR NEW TRIAL

Subsequent to the issuance of our prior opinion, but prior to the issuance of the

Court of Criminal Appeals opinion, Appellant filed his pro se Amended Motion for New

Trial wherein he originally outlined twenty instances of alleged ineffective assistance of

8 counsel by his trial defense attorney. 6 At the hearing held on July 13, 2022, for the

purpose of ruling on this court’s order of May 19, 2022, it was called to the attention of

the court that Appellant had filed a motion for new trial. Although it exceeded the scope

of our order of abatement, the trial court denied the motion for new trial.

We decline to find Appellant’s trial counsel ineffective on the basis of the record

before us. Generally, the record on direct appeal is rarely adequate to address complex

claims of ineffective assistance of counsel. Milburn v. State, No. 10-20-00072-CR, 2022

Tex. App. LEXIS 2269, at *18 (Tex. App.—Waco April 6, 2022, no pet.) (mem. op., not

designated for publication); Clayton v. State, No. 07-15-00312-CR, 2016 Tex. App. LEXIS

11988, *8-9 (Tex. App.—Amarillo Nov. 4, 2016, no pet.) (mem. op., not designated for

publication). Claims of ineffective assistance of counsel must be firmly rooted in the

record and the record must affirmatively demonstrate the meritorious nature of the claim.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Before granting relief

on a claim that defense counsel failed to do something, we ordinarily require that counsel

be afforded the opportunity to explain the reasons for his trial court decisions. Rylander

v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). To warrant reversal without

affording counsel such an opportunity, the challenged conduct must be “so outrageous

that no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392.

Appellant’s twenty complaints of ineffective assistance of counsel consisted of

twelve complaints that trial counsel failed to subpoena, obtain, or offer certain evidence.

In each instance, Appellant failed to offer any explanation as to how counsel’s failure was

6 A subsequently filed document, also entitled Amended Motion for New Trial, alleged nineteen instances of alleged ineffective assistance of counsel.

9 “so outrageous” that no competent attorney would have engaged in such conduct, or how

Appellant was prejudiced thereby. Appellant’s remaining eight complaints consisted of

five failures to object to certain testimony, his failure to advise Appellant of his sentencing

options, his failure to request a suppression hearing, and his failure to adequately

investigate the case. Again, Appellant’s broad allegations are unsupported by any

specific instances of alleged ineffective assistance. 7

Appellant’s ineffective assistance of counsel claims are best left to a writ of habeas

corpus where an evidentiary record can be developed. Because the present record does

not support a finding of ineffective assistance of counsel, Appellant’s late-filed Amended

Motion for New Trial does not raise any grounds on which relief could be granted.

CONCLUSION

That portion of the judgment convicting Appellant in Count I of assault family

violence is affirmed. The portions of the judgment convicting Appellant in Count II of

endangering a child and in Count III of interference with an emergency request for

assistance are reversed and Count II and Count III are remanded to the trial court for

further proceedings.

Patrick A. Pirtle Senior Justice

Quinn, C.J., concurring in the result.

Do not publish.

7Regardless of whether we were to review Appellant’s “twenty” instances of ineffective assistance of counsel or his “nineteen” instances, our conclusion remains the same.