Davis v. State

22 S.W.3d 8, 2000 WL 151257

Opinions

MAJORITY OPINION

MAURICE E. AMIDEI, Justice.

Ernest Davis appeals his conviction by a jury for the offense of possession of cocaine. The trial court sentenced appellant to ten years imprisonment. In three points of error, appellant contends (1) the trial court erred in denying his motion to suppress all evidence seized as a result of a warrantless arrest, (2) the trial court erred in denying defense counsel the right to make an opening statement, and (3) appellant was denied effective assistance of counsel. We affirm the judgment of the trial court.

I. BACKGROUND

On the evening of March 6,1998, Officer Myron Dillingham was on routine patrol in a marked police car when he saw appellant, Ernest Davis, walking down the street. Officer Dillingham recognized appellant as someone he had dealt with in the past. When he was about ten feet away from appellant, Dillingham shined his spotlight on appellant. Dillingham then observed the appellant throw down a clear container. Upon seeing the appellant throw down the object, the officer turned on his emergency lights and exited his vehicle. The officer arrested appellant for littering. Officer Dillingham then recovered the discarded container and determined that the contents were cocaine. The container contained 635 milligrams of crack cocaine. Dillingham placed appellant under arrest for possession of a controlled substance.

II. MOTION TO SUPPRESS

In his first point of error, appellant contends that he was unlawfully detained when Officer Dillingham shined the spotlight on him, and therefore, his abandonment of the cocaine was an involuntary result of an illegal detention. Appellant argues that Dillingham used a show of authority (the spotlight) to detain appellant without any reasonable suspicion. It is claimed that the use of the spotlight amounted to a seizure of appellant. Because the abandonment of the cocaine was a product of police misconduct, appellant argues it was not admissible into evidence, and the trial court erred in overruling appellant’s motion to suppress. We disagree.

A. Standard of Review

A ruling on a motion to suppress lies within the sound discretion of the trial court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). At the hearing on the motion, the trial court serves as the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id.; Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

Appellate courts should afford almost total deference to a trial court’s rulings on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). Appellate courts may review de novo “mixed questions of law and fact” not falling within this category. Id. The trial court’s decision to grant or deny the motion to suppress turned on the court’s assessment of whether shining the spotlight on appellant constituted a seizure, which is a question of law. Therefore, we will review the record de novo. See Hunter v. State, 955 S.W.2d 102 (Tex.Crim.App.1997); see also Loserth v. State, 963 S.W.2d 770 (Tex.Crim.App.1998).

B. Legality of the Seizure of the Cocaine

We first need to address whether appellant’s point of error was properly preserved for our review. To preserve error for appellate review, the complaining party must have raised his complaint in the form of an objection, request or motion in the trial court and obtained a ruling. Tex.R.App. P. 33.1(a)(1); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995). Additionally, the point of error must correspond to the motion made at trial. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.1991). A motion which states one legal theory cannot be used to support a different legal theory on appeal. Broxton, 909 S.W.2d at 918. Appellant’s trial counsel claimed that the evidence should be suppressed based on the theory that littering is not an offense that gives rise to probable cause. Appellant failed to complain during the motion to suppress hearing that Dillingham’s shining of the spotlight amounted to a show of force. This argument was raised for the first time on appeal. Because appellant’s complaint on appeal does not comport with the motion he made at trial, he has faded to properly preserve error for our review. We overrule appellant’s point of error one.

III. DENIAL OF RIGHT TO MAKE AN OPENING STATEMENT

In his second point of error, appellant contends the trial court erred in refusing his request to make an opening statement before his case-in-chief. During the State’s ease-in-ehief, the State waived its right to make an opening statement. At the conclusion of the State’s case appellant’s attorney requested that he be allowed to make a short opening statement prior to putting on evidence in appellant’s case-in-chief. The trial judge denied appellant’s attorney the right to make an opening statement stating that, “[s'Jince it wasn’t made by the state, you can’t make one, I think one follows the other, as I understand the law.” Appellant’s attorney stated that he was entitled to an opening statement. The trial judge responded that the defense is only entitled to an opening statement if the State makes an opening statement. Appellant’s attorney then objected on the record to not being allowed an opening statement in appellant’s case in-chief. The trial court overruled the objection.

A. Standard of Review

A defendant may present an opening statement after the close of the State’s case-in-chief. See Tex.Code Crim. PROC. Ann. Art. 36.01(a)(5) (Vernon Supp.1999); Moore v. State, 868 S.W.2d 787, 789 (Tex.Crim.App.1993). The failure of a trial court to allow such a statement constitutes error. Farrar v. State, 784 S.W.2d 54, 56 (Tex.App.-Dallas 1989, no pet.). We therefore find the trial court erred in not allowing appellant’s trial counsel to make an opening statement.

Our analysis does not end there, however. In McGowen v. State, 944 S.W.2d 481 (Tex.App.-Houston [14 th Dist.] 1997), vacated and remanded, 991 S.W.2d 803 (Tex.Crim.App.1998) (en banc), this Court held that an error in denying a defendant the right to present an opening statement constitutes reversible error without a harm analysis. At the time this Court handed down its opinion, it did not have the benefit of the Court of Criminal Appeal’s decision in Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). See McGowen v. State, vacated 991 S.W.2d 803 (Tex.Crim.App.1998) (en banc). In Cain, the court held that “except for certain federal constitutional errors labeled by the United States Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction, voluntariness of plea, or any other mandatory requirement, is categorically immune to a harmless error analysis.” Cain, 947 S.W.2d at 264. We therefore must conduct a harm analysis.

B. Harm Analysis

Our harm analysis must begin with a determination of whether the denial of the right to make an opening statement is constitutional error. Tex.R.App. P. 44.2.¹ In Moore the Court held the right to make an opening statement is a statutory right, not a constitutional right. Moore, 868 S.W.2d at 789. Therefore, the error in this case involves Tex.R.App. P. 44.2(b). Under rule 44.2(b) we are to disregard the error unless a substantial right is affected. Tex.R.App. P. 44.2(b). Since rule 44.2(b) is virtually identical to rule 52(a) of the Federal Rules of Criminal Procedure, we may look to federal case law for guidance on the meaning of this rule. Umoja v. State, 965 S.W.2d 3, 11 (Tex.App.-Fort Worth 1997, no pet.) (opinion on reh’g). A substantial right is affected when (1) the error had a “substantial and injurious” effect or influence in determining the jury’s verdict or (2) leaves one in grave doubt whether it had such an effect. See O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); United States v. Arutunoff, 1 F.3d 1112, 1118 (10th Cir.), cert, denied, 510 U.S. 1017, 114 S.Ct. 616, 126 L.Ed.2d 580 (1993); see also King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997); Coggeshall v. State, 961 S.W.2d 639, 642-44 (Tex.App.-Fort Worth 1998, pet. refd). To make the determination of “substantial influence,” appellate courts must review the entire record to discern whether the error “substantially swayed” the jury, or had a “substantial influence” on the jury’s verdict in the context of the entire case against the defendant. Umoja, 965 S.W.2d at 11, United States v. Blake, 107 F.3d 651, 653 (8th Cir.1997); United States v. Wilson, 107 F.3d 774, 785-86 (10th Cir. 1997). Our task, therefore, is not simply to identify what particular substantial right may have been affected; rather, it is to determine whether the error influenced the trial’s outcome.

In summary, when we assess harm under Rule 44.2(b), we review the entire record to determine whether the error did not influence or had only a slight influence on the verdict. If we have grave doubts about its effect on the outcome, or if we find that it had more than a slight influence, we must conclude that the error was such as to require a new trial. See Fowler v. State, 958 S.W.2d 853 (Tex.App.-Waco 1997, no pet.).

To perform a meaningful harm analysis under any standard, the record must provide enough information for the reviewing court to estimate the effect of the error. An opening statement that is not made is, of course, not in the record. However, we cannot say that the outcome would have been different had appellant’s attorney made an opening statement. Defense counsel quite often waive openings as a simple matter of trial strategy. The function of an opening statement is merely to “state what evidence will be presented.” United States v. Dinitz, 424 U.S. 600, 612, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) (Burger, G.J., concurring). Moreover, the transcript shows that appellant’s trial counsel was only going to make a “brief’opening statement. The trial was not complicated, with the State calling only four witnesses and appellant calling three. The transcript bears proof that the testimony was straightforward. In fact, the whole trial lasted but one day, and the jury deliberated for only one hour and fourteen minutes before finding appellant guilty.

We do not view appellant’s defense as a new or complicated theory that the jury might find difficult to understand without clarification. Both the State’s and appellant’s cases-in-chief were simple and short. Although we disapprove of the trial court’s refusal to permit the appellant to make an opening statement, we are satisfied that the jury did not have any difficulty in following appellant’s presentation of his case, even without an opening statement.

Similarly, we conclude in this case that overwhelming evidence of appellant’s guilt supports the conclusion that the trial’s outcome was not influenced and appellant’s substantial rights were not affected by the trial court’s error. Given the overwhelming evidence of guilt, we also conclude that any rational jury, including one that had heard an opening statement, would have found appellant guilty.

We do not suggest, however, that the erroneous denial of the right to make an opening statement can never be reversible error. A particular record may present facts showing that the erroneous denial of an opening statement had a substantial and injurious effect on the verdict, or a record may leave this Court with grave doubts about the error’s effect on the trial’s outcome. The record in this case does not. The record before us supports the conclusion that the trial court’s error did not affect the outcome of the trial. In the absence of prejudice, we do not find reversible error. We overrule appellant’s point of error two.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

In his third point of error, appellant contends that he received ineffective assistance of trial counsel at the hearing of appellant’s motion to suppress, and during the guilt/innocence phase of the trial. Specifically, appellant contends the following acts of ineffectiveness by his trial counsel:

1. During the hearing of appellant’s motion to suppress, trial counsel failed to argue that Officer Dillingham’s shining the spotlight on appellant was a detention of the appellant by a show of force. Trial counsel further failed to argue that appellant abandoned the contraband as a direct result of Dillingham’s unlawful detention of appellant. Appellant’s trial counsel instead raised the issue that littering is not an offense that gives rise to probable cause to detain appellant.

2. Trial counsel repeatedly tried to prove that more than one officer was pres ent at appellant’s arrest without showing how this matter would affect the outcome of the case.

3. In the guilt/innocence phase, appellant’s counsel made several meaningless objections. Trial counsel objected to the armed witness (Officer Dillingham) in the court room.

4. Trial counsel failed to object when the State mentioned the large sum of money that appellant had on his person when arrested.

5. Trial counsel put appellant on the stand in its ease-in-chief. Counsel then inquired into appellant’s knowledge of drug trafficking and previous arrests.

6. Trial counsel failed to object when the State on cross examination asked appellant about a past conviction for resisting arrest and about three past convictions for misdemeanor possession of marijuana.

7. Trial counsel failed to timely object to the introduction of appellant’s arrest for possession of 4.4 grams of cocaine subsequent to appellant’s arrest in this present cause. Trial counsel further failed to request for a limiting instruction concerning the matter.

8. Trial counsel mentioned in its closing statement that appellant had a long record and had been to jail for drug offenses a “zillion” times.

A. Standard of Review

The U.S. Supreme Court established a two prong test to determine whether counsel is ineffective at the guilt/innocence phase of a trial. First, appellant must demonstrate that counsel’s performance was deficient and not reasonably effective. Second, appellant must demonstrate that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Essentially, appellant must show (1) that his counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) that there is a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Id; Hathom v. State, 848 S.W.2d 101, 118 (Tex.Crim.App.1992). A reasonable probability is defined as probability sufficient to undermine confidence in the outcome. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App.1992).

Judicial scrutiny of counsel’s performance must be highly deferential. See Strickland, 466 U.S. at 689,104 S.Ct. 2052. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. An ineffectiveness claim cannot be demonstrated by isolating one portion of counsel’s representation. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992). Therefore, in determining whether the Strickland test has been met, counsel’s performance must be judged on the totality of the representation. Strickland, 466 U.S. at 670, 104 S.Ct. 2052. The defendant must prove ineffective assistance of counsel by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984).

In any case analyzing the effective assistance of counsel, we begin with the presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.App.1994) "(en banc). We assume counsel’s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is the appellant’s burden to rebut this presumption via evidence illustrating why trial counsel did what he did. Id. In Jackson, the court of criminal appeals refused to hold counsel’s performance deficient given the absence of evidence concerning counsel’s reasons for choosing the course he did. Id. at 772; see also Jackson v. State, 973 S.W.2d 954, 956-957 (Tex.Crim.App.1998) (inadequate record on direct appeal to evaluate that trial counsel provided ineffective assistance).

B. Application

Appellant did not file a motion for a new trial, and therefore failed to develop evidence of trial counsel’s strategy. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. refd) (generally, trial court record is inadequate to properly evaluate ineffective assistance of counsel claim; in order to properly evaluate an ineffective assistance claim, a court needs to examine a record focused specifically on the conduct of trial counsel such as a hearing on application for writ of habeas corpus or motion for new trial); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex.App.-Corpus Christi 1992, pet. refd, untimely filed) (inadequate record to evaluate ineffective assistance claim). See also Beck v. State, 976 S.W.2d 265, 266 (Tex.App.-Amarillo 1998, pet. refd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim).

In the present case, the record is silent as to the reasons appellant’s trial counsel chose the course she did. The first prong of Strickland is not met in this case. Jackson, 973 S.W.2d at 957; Jackson, 877 S.W.2d at 771. Due to the lack of evidence in the record concerning trial counsel’s reasons for these alleged acts of ineffectiveness, we are unable to conclude that appellant’s trial counsel’s performance was deficient. Id.

Even if this record rebutted the Strickland presumption of sound trial strategy, appellant has not affirmatively shown that trial counsel’s performance prejudiced the defense. We find that appellant was not harmed by the actions of his trial counsel. We also find that the evidence of appellant’s guilt was overwhelming. Appellant has not shown a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Therefore, appellant has not met the second prong of the Strickland test.

Because appellant produced no evidence concerning trial counsel’s reasons for choosing the course he did, and because appellant did not demonstrate prejudice to his defense, we overrule appellant’s contention in point of error three.

For the reasons stated in this opinion, the judgment of the trial court is AFFIRMED.

Footnotes

1

. Rule 44.2 provides:

(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt the error did not contribute to the conviction or punishment.

(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.