John Wesley McEuen v. State

• Court: Court of Appeals of Texas
• Decided: August 13, 2009
• Docket: 14-08-00941-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed August 13, 2009

Affirmed and Memorandum Opinion filed August 13, 2009.

In The

Fourteenth Court of Appeals

_______________

NO. 14-08-00941-CR

NO. 14-08-00942-CR

JOHN WESLEY McEUEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause Nos. 1480105, 1480106

M E M O R A N D U M   O P I N I O N

A jury convicted appellant John Wesley McEuen of two counts of violation of a protective order.  The trial court sentenced him to one year in the Harris County Jail, but suspended his sentence and placed him on eighteen months= community supervision.  In two issues, he asserts that the trial court reversibly erred by including a definition of reasonable doubt in the jury charge and that his trial counsel was ineffective. We affirm.

I.  Background

In April 2007, the 308th District Court of Harris County entered a protective order prohibiting appellant, as is relevant here, from Acoming with 200 feet of [Nancy Anderson]=s place of residence. . . .@  Later that year in August, Anderson reported to the Harris County Precinct 4 Constable=s Office that appellant was harassing her.  Harris County Deputy D. Felan investigated Anderson=s report and spoke with Anderson=s neighbor, Barry Reno.  After speaking with Reno and Anderson, Deputy Felan filed a complaint in which she averred that she believed appellant violated the protective order on July 1, 2007 and September 10, 2007.  The Harris County District Attorney=s Office thereafter charged appellant by information with two counts of violation of a protective order. 

Although Anderson did not testify at appellant=s jury trial, her neighbor Reno testified that he saw appellant walk up Anderson=s driveway and jump over her fence into her backyard on or about the afternoon of July 1, 2007.  Reno further testified that, on September 10, 2007, he saw appellant drive his car into Anderson=s driveway and remain there for two to three minutes.  Pictures of Anderson=s house were entered into evidence, indicating a very short distance between her house and driveway.  In addition, the protective order was admitted into evidence. 

Deputy Felan testified regarding her investigation into Anderson=s report that appellant was harassing her.  She reiterated much of Reno=s testimony regarding the two specific violations at issue and explained that Reno identified appellant in a photo lineup as the individual who he had seen in Anderson=s driveway and yard. 

After the State rested, the trial court and counsel for appellant and the State discussed the court=s charge.  Both sides affirmatively stated they had no objections to the charge.  The defense rested; both sides presented closing argument.  The trial court charged the jury, and the jury returned a guilty verdict.  The trial court assessed appellant=s punishment at one year in the Harris County Jail, but suspended the sentence and placed appellant on community supervision for eighteen months.^[1]  This appeal timely ensued.

II.  Issues Presented

In his first issue, appellant asserts that the trial court reversibly erred by including a definition of Areasonable doubt@ in the jury charge in contravention of Paulson v. State.^[2]  In his second issue, appellant contends that his trial counsel was ineffective by failing to properly object to various testimony.

III.  Analysis

A.        Jury Charge Error

When reviewing allegations of charge error, an appellate court must first determine whether error actually exists in the charge.  Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc).  If error is found, the court must determine whether it caused sufficient harm to require reversal.  Id.  The degree of harm required for reversal depends on whether the error was preserved.  Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (en banc).  Where, as here, no proper objection was made at trial, the error requires reversal only if it is so egregious and created such harm that the appellant has not had a fair and impartial trial.  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc) (op. on reh=g).

Here, the trial court included the following unobjected-to definition of reasonable doubt in its charge: AA >reasonable doubt= is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case.@  As appellant correctly notes, in Paulson v. State, the Court of Criminal Appeals overruled Geesa v. State,^[3] which had required the trial court to include a definition of Abeyond a reasonable doubt@ in the jury charge.  28 S.W.3d 570, 571 (Tex. Crim. App. 2000).  But although the Paulson Court concluded that the Abetter practice@ is to give no definition of reasonable doubt, it also stated that it is not reversible error to include the entire Geesa instruction^[4] if both parties agree to its inclusion.  Id. at 573; see also Jackson v. State, 105 S.W.3d 321, 325 (Tex. App.C Houston [14th Dist.] 2003, pet. ref=d).  Here, as noted above, both parties affirmatively stated that they had no objections to the jury=s charge.^[5]  Further, this specific definition was determined to be Auseless@ by the Paulson court, rather than erroneous.^[6]  Paulson, 28 S.W.3d at 572 (A[This] definition is useless.  It is like saying >A white horse is a horse that is white.=@).

Under these circumstances, we conclude that the trial court did not err in including this definition in its charge.  See id. at 572B73; see also Jackson, 105 S.W.3d at 325. We therefore overrule appellant=s first issue.

B.        Ineffective Assistance of Counsel

We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington.  466 U.S. 668 (1984).  Under the Strickland test, an appellant must prove (1) his trial counsel=s representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial.  Id. at 687.  To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. at  690B94.  An appellant=s failure to satisfy one prong makes it unnecessary for a court to consider the other prong.  Id. at 697.  This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution.  Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986) (en banc).

Our review of defense counsel=s performance is highly deferential, beginning with the strong presumption that counsel=s actions were reasonably professional and were motivated by sound trial strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).  When the record is silent as to trial counsel=s strategy, we will not conclude that defense counsel=s assistance was ineffective unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  To establish ineffective assistance of counsel based on a failure to object to the admission of evidence, an appellant must establish, as part of his claim, that the trial court would have erred in overruling these objections.  Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) (en banc).

First, appellant complains that trial counsel was deficient by making an inappropriate hearsay objection to Reno=s response to a question posed regarding whether he was a Aneighborhood watch person,@ in which Reno stated, ANo sir, we all are.  Nobody knows if he=s a pedophile or trying to pick up kids.@^[7]  Appellant asserts that, rather than a hearsay objection, trial counsel should have lodged objections under Texas Rules of Evidence 403 or 404(b).^[8]  But as an initial matter, we note that it is not evident that Reno=s reference to Ahe=s a pedophile@ in this testimony is directed towards appellant.  Instead, it is just as likely that Reno was simply explaining why everyone in the neighborhood keeps watch, i.e., to keep an eye out for strangers in the neighborhood who may be preying on children.  Further, appellant has not argued that trial court would have abused its discretion in overruling these objections, instead asserting: 

[T]he reference to appellant as a pedophile was incredibly prejudicial and almost certainly tainted the jury in an indelible manner.  Tex. R. Evid. 403.  Counsel never objected to the statement on this basis.  Further, any reference to such conduct would have been uncharged conduct rendered inadmissible under Tex. R. Evid. 404(b).  Counsel likewise failed to object on that ground.

Thus, we conclude that appellant has not met his burden to establish that, had these objections been made, the trial court would have erred in overruling them.  See Ortiz, 93 S.W.3d at 93.

Next, appellant asserts that his trial counsel was ineffective based on his Acontinuous failure@ to object to Aprejudicial hearsay.@  Specifically, he asserts that counsel failed to object when Aboth Reno and F[e]lan testified about statements made by Anderson establishing that her relationship with appellant deteriorated and that a protective order existed.@^[9]  But these same facts were established by other admitted evidence about which appellant does not complain:  the protective order itself was admitted into evidence, and it establishes that Anderson and appellant were no longer involved in a dating relationship due to Afamily violence.@  The failure to object to such cumulative evidence is harmless and does not support a claim of ineffective assistance.  Darby v. State, 922 S.W.2d 614, 624 (Tex. App.CFort Worth 1996, pet. ref=d); see also Hernandez v. State, No. 14-07-00124-CR, 2008 WL 2262046, at *8 n.15 (Tex. App.CHouston [14th Dist.] May 29, 2008, pet. ref=d) (mem. op., not designated for publication), cert. denied, 129 S.Ct. 2164 (2009).    

Finally, appellant  criticizes his trial counsel=s failure to object when Deputy Felan reiterated Reno=s out-of-court statements made to her regarding the two instances when appellant approached Anderson=s residence in violation of the protective order for which appellant was being tried.  But this evidence had already been established by Reno=s testimony; thus, it was merely cumulative of other evidence previously admitted without objection and about which appellant does not complain about any failure to object.  See Darby, 922 S.W.2d at 624, Hernandez, 2008 WL 2262046, at *8.  Further, we cannot say that any of the challenged conduct was so outrageous that no competent attorney would have engaged in it.  Goodspeed, 187 S.W.3d at 392. 

Finally, appellant was charged with the misdemeanor offense of violating a protective order by twice approaching within 200 yards of Anderson=s residence.  The testimony of Reno established that appellant approached Anderson=s residence on the dates in question; the photographs admitted into evidence of Anderson=s residence reflect that the areas approached were within 200 yards of Anderson=s residence.  Thus, appellant has not established, by a preponderance of the evidence, there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Strickland, 466 U.S. at  690B94.

In sum, appellant has neither established that his counsel=s performance was deficient nor that there is a reasonable probability the outcome of his trial would have been different.  We therefore overrule his second issue.

IV.  Conclusion

Having overruled each of appellant=s issues, we affirm the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant originally elected to have the jury assess his punishment, but after the verdict, the parties agreed to have the trial court sentence appellant in accord with a punishment agreement.

^[2]  28 S.W.3d 570, 752 (Tex. Crim. App. 2000).

^[3]  820 S.W.2d 154, 162 (Tex. Crim. App. 1991).

^[4]  The full Geesa definition states:

A reasonable doubt is a doubt based on reason and common sense after a careful and impartial consideration of all the evidence in the case.  It is the kind of doubt that would make a reasonable person hesitate to act in the most important of his own affairs.

Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.

820 S.W.2d at 162.

^[5]  Appellant states in his brief, AIn this case, neither party agreed to the charge instruction.@  But this assertion is not supported by the record:

The Court:         Does either side have any objection to the proposed charge?

[Trial counsel]:   No objection, Your Honor.

[The State]:       No objection.

^[6]  Indeed, this definition is not one of the Geesa definitions defined as Atroubling@ by the Paulson court.  Id.  at 572B73 (concluding that only portions of Geesa definition including the ambiguous term Ahesitation@ were problematic and logically flawed). 

^[7]  The entire exchange regarding this testimony occurred as follows:

[Trial counsel]:   When you testified, you know[,] that y=all are all looking out in this neighborhood; people are going to drive by and pick up kids and run people over, so you=re the neighborhood watch person, aren=t you?

[Reno]: No, sir; we all are.  Nobody knows if he=s a pedophile or trying to pick up kids.  They seen him at 8:00 o=clock [sic] in the morning, when they got their kids at the school bus, driving by.

[Trial counsel]:   Objection, hearsay.

The Court:         All right, proceed.

^[8]  Texas Rule of Evidence 403 states that relevant evidence may be excluded if the probative value of the evidence is Asubstantially outweighed@ by the danger of, among others, unfair prejudice.  Tex. R. Evid. 403.  Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person.  Tex. R. Evid. 404(b). 

^[9]  The record references provided in support of this allegation include testimony from Reno in which he stated that he Afound out@ that the relationship between Anderson and appellant had ended, testimony by Reno that Deputy Felan and he discussed Awhat was going on@ between Anderson and appellant, and statements by Deputy Felan that she became aware of the protective order and appellant=s violations of it when Anderson came into the office to make a report.  Several of these instances do not involve hearsay, which is an out-of-court statement offered for the truth of the matter asserted therein.  See Tex. R. Evid. 801(d). And again, appellant has not explained how the trial court would have erred in overruling any such objections.  See Ortiz, 93 S.W.3d at 93.