Russell Lynn Stracener v. State

• Court: Court of Appeals of Texas
• Decided: October 21, 2009
• Docket: 06-08-00045-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00045-CR ______________________________

RUSSELL LYNN STRACENER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 8th Judicial District Court Hopkins County, Texas Trial Court No. 0719499

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Russell Lynn Stracener had previously been placed on deferred adjudication community supervision under a plea agreement that provided for three charges of indecency with a child to be reduced to a single plea of guilty to a charge of mental injury to a child. Stracener has now been adjudicated guilty by the trial court. ⁽¹⁾ On appeal, Stracener asserts that the evidence was not legally and factually sufficient to support the finding that he violated conditions of his community supervision and that two conditions later were improperly added to his community supervision--passing periodic polygraph tests and successfully completing counseling as a sex offender.

Stracener does not dispute the State's allegation that he failed to timely perform the two unquestionably valid conditions of his community supervision--doing sixteen hours of community service during November 2007 and timely paying a $50.00 Crimestoppers fee. Instead, he offers explanations of why he did not comply with those terms.

Because of Stracener's lack of community service in November 2007 and his failure to timely pay the Crimestoppers fee, we will affirm the judgment of the trial court without addressing or endorsing the subsequently added terms concerning polygraph examinations and sex offender counseling.

Background

Stracener's original terms of community supervision required him to "[p]erform 240 hours of community service work at the rate of 16 hours per month,"[s]ubmit to and pass . . . polygraph testing at the request of the CSO/field officer," and "[p]ay a one time crimestoppers fee of $50.00 within 60 days of the date of this order through the CSCD." Stracener received the order containing these conditions, stated he had no questions about the requirements, affirmed that he understood them, could live up to them, and signed the order imposing the conditions.

Shortly thereafter, and without a hearing, the trial court amended Stracener's conditions of supervision. These conditions, apparently motivated by the sex offenses that were dismissed under the plea agreement, required Stracener to "attend, actively participate, and successfully complete psychological counseling with a State Licensed Sex Offender Treatment Provider and pay all associated costs." Stracener received the amended conditions of supervision, but wrote "refused" on his signature line because he did not agree with the amendment. Nevertheless, he attended and paid for counseling.

A few months later, the State filed a motion to proceed with adjudication of guilt based on Stracener's failure to perform community service in November 2007, pay the Crimestopper fee on time, and pass the polygraph examination. The motion also claimed that he violated the amended condition of community supervision because he was unfavorably discharged from sex-offender counseling. Stracener filed a motion to quash the proceeding, claiming that the polygraph results were inadmissible and that the unilateral and after-the-fact amendment of his community supervision conditions was illegal. He also argued that he was prevented from timely paying the Crimestopper fee by the clerk and that his community service was not completed because he was required to attend and pay for counseling and because he was sick.

With respect to the condition requiring community service work at the rate of sixteen hours per month, the trial court heard undisputed evidence that Stracener failed to perform any of his required community service for the month of November 2007. Stracener had several reasons to justify his failure. First, he claimed the work was not completed because he was working for his father to get the money to pay his fees. ⁽²⁾ However, he later stated the money to pay all November fees was borrowed from his father, thus undermining that reason for not completing the November hours of community service. Next, while Stracener admitted he could have performed community service hours during the first three weeks of November, he saved the work for the last week and then became sick. Stracener's father said he could not perform the required hours because he was "sick around Thanksgiving" with "some kind of stomach virus." Stracener's community supervision officer and counselor, Jerry Beare, recalled that although Stracener's wife called to report he was ill in December, he did not appear to be sick in November during the required Tuesday meetings. Offering a third explanation, Stracener claimed supervision officer Joseph Flemens excused his November hours and gave him an opportunity to make up the community service later in the year. Flemens testified he had no authority to modify the trial court's order.

Undisputed evidence demonstrated Stracener failed to pay the Crimestopper fee within sixty days of the order of community supervision, even though he had the financial means to do so. As a defense, Stracener claimed that he tried to pay the Crimestopper fee three times, but that the clerk would not accept the money, gave it back to him, and told him he did not owe it. She finally accepted the money, after the end of the sixty-day time frame mandated by the court. On cross-examination, Stracener admitted that he knew the clerk would have taken the money and applied it to another payment even if he had overpaid.

Next, over objections that polygraph results were inadmissible, undisputed evidence of failure, including Stracener's admission that "I have never been able to pass [a polygraph test] so far" was admitted. To provide justification, Stracener said he failed the last polygraph test because the examiner upset him when he "jumped up at me and started, you know, raking me over the coals about the way I looked at him."

Finally, with respect to the requirement to complete counseling, the trial court heard undisputed evidence that Stracener was unfavorably discharged. He was required to attend class every Tuesday night unless there was a conflict. Beare testified that Stracener "from day one, has failed to engage in the therapeutic process . . . . There was one incident in which he showed up with a tape recorder trying to record the meeting." Beare required Stracener to sign a waiver of confidentiality that would allow him to speak with family members, employers, and neighbors. Even after explaining that Beare would have to discharge him unless the confidentiality waiver was signed, Stracener refused to sign. As a result, Stracener was unfavorably discharged from counseling. Beare also declared Stracener's "participation was adversarial. He was not wanting to cooperate but rather - -it was my belief that Mr. Stracener would rather destroy or bring down the group than to be a recipient of the benefits of the group." Beare had never seen that level of resistance to the program.

We review a decision to adjudicate guilt as we review a decision to revoke community supervision. ⁽³⁾ Tex. Code Crim. Proc. Ann. art 42.12, § 5(b) (Vernon Supp. 2009). While a decision to revoke community supervision rests within the discretion of the trial court, it is not absolute. In re T.R.S., 115 S.W.3d 318, 320 (Tex. App.--Texarkana 2003, no pet.). To revoke community supervision, the State must prove every element of at least one ground for revocation by a preponderance of the evidence. Tex. Code Crim. Proc. Ann. art. 42.12, § 10 (Vernon Supp. 2009); T.R.S., 115 S.W.3d at 320; Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.--Houston [1st Dist.] 1997, no pet.). "'Preponderance of the evidence' has been defined as the greater weight and degree of credible testimony." T.R.S., 115 S.W.3d at 320. In other words, if the greater weight of credible evidence in this case created a reasonable belief that Stracener violated a condition of community supervision, the standard was met. Id. at 321 (citing Martin v. State, 623 S.W.2d 391, 393 n.5 (Tex. Crim. App. [Panel Op.] 1981).

In a revocation hearing, the trial court is the sole trier of the facts and determines the credibility of the witnesses and the weight to be given to the testimony. T.R.S., 115 S.W.3d at 321; Lee v. State, 952 S.W.2d 894, 897 (Tex. App.--Dallas 1997, no pet.); Johnson, 943 S.W.2d at 85. The court may accept or reject any or all of a witness' testimony. T.R.S., 115 S.W.3d at 321 (citing Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987)).

Considering the unique nature of a revocation hearing and the trial court's broad discretion in the proceedings, the general standards for reviewing factual sufficiency do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.--Texarkana 2003, pet. ref'd). Instead, we review the trial court's decision regarding community supervision revocation for an abuse of discretion, and examine the evidence in a light most favorable to the trial court's order. T.R.S., 115 S.W.3d at 321; Pierce, 113 S.W.3d at 436 (citing Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981)). Thus, if the greater weight of credible evidence creates a reasonable belief that a defendant has violated a condition of his or her community supervision, the trial court's order of revocation did not abuse its discretion and must be upheld. Pierce, 113 S.W.3d at 436 (citing Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1974). If the State's proof is sufficient to prove any one of the alleged community supervision violations, the revocation should be affirmed. T.R.S., 115 S.W.3d at 321 (citing Stevens v. State, 900 S.W.2d 348, 351 (Tex. App.--Texarkana 1995, pet. ref'd)).

An award of community supervision is not a right, but a contractual privilege entered into between a court and a defendant. Speth v. State, 6 S.W.3d 530, 533-34 (Tex. Crim. App. 1999). For this reason, the law is well settled that conditions of community supervision not objected to are affirmatively accepted as terms of the contract. Id. at 534-35; Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); Vale v. State, 486 S.W.2d 370 (Tex. Crim. App. 1972). Since Stracener did not object to the conditions requiring him to pay the Crimestopper fee and perform community service according to the schedule ordered by the court, he was bound to perform them or be subject to adjudication.

Flemens testified Stracener failed to pay the Crimestopper fee within sixty days of the order of community supervision and also failed to complete the required sixteen hours of community service for November 2007. Stracener did not contest this fact. Instead, he provided several reasons to justify his noncompliance with the court's order. Since the trial court was the sole trier of the facts and credibility, he was free to reject all of Stracener's testimony as incredible excuses. T.R.S., 115 S.W.3d at 321; Johnson, 943 S.W.2d at 85. Reviewing the evidence in a light most favorable to the verdict, we conclude the record is sufficient to support a trial court's reasonable belief that Stracener violated either of these conditions of community supervision. Thus, we cannot say the trial court abused its discretion or acted without reference to guiding rules and principles. The order of adjudication must be upheld. ⁽⁴⁾

We affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 16, 2009

Date Decided: October 21, 2009

Do Not Publish

1. Stracener has been sentenced to twelve years' imprisonment and ordered to pay a $1,000.00 fine.

2. Stracener has worked for his father repairing pallets since 2006, without paying income taxes. He took home about $300.00 per week.

3. Thus, all standards will be discussed in terms of revocation of community supervision.

4. Because the above violations are dispositive of Stracener's appeal, we expressly do not address, and we should not be read as approving, the amendment of Stracener's conditions of community supervision, without a hearing, to include sex-offender terms.

> Porter's points of error urging evidentiary insufficiency are overruled.

(2) The State Did Not Necessarily Comment on Porter's Failure To Testify

Porter also contends the State twice impermissibly commented on Porter's failure to testify in his own defense. "It is settled law that neither the trial judge nor the prosecution may comment on the defendant's failure to testify, and that any such comment violates the Fifth Amendment privilege against self-incrimination." Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). To violate the right against self-incrimination, the offending language must be viewed from the jury's standpoint and the implication that the comment referred to the defendant's failure to testify must be clear. It is not sufficient that that language might be construed as an implied or indirect allusion. The test is whether the language used was manifestly intended or was of such character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character.

Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001).

The first challenged comment by the State occurred during the opening portion of the State's summation:

We've proven to you that on the 26th day of September, 2005[,] Derrick Kennedy was shot by a firearm. We don't have the firearm. There's only one person that knows where the firearm is. We don't have it. We don't have to have it. We're not talking about casings being hit on the back by a rock. You've got to have a firearm to discharge it. We've got the casings that went into that young man's body and ended his life. They were fired intentionally. They were fired knowingly. You don't accidentally shoot a gun two times at somebody.

(Emphasis added.) The other asserted comment by the State came just before the case was submitted to the jury:

Now, you heard enough testimony in cross-examination on scientific evidence to kind of know where that is. Bottom line is, the experts told you what would or wouldn't show [sic] and what they would need. We can't find the gun and I agree there is one person that knows where that gun is. You know, what's the facts surrounding this?

(Emphasis added.) Porter did not object to either argument at trial.

In Cruz, the State had argued, "They want to say that it's self-defense. Well, in order to have self-defense, what has to happen is someone says, 'Yeah, I committed this crime. I committed this murder. I did this and I intended to do this because I was in fear of my life.'" 225 S.W.3d at 547. This State's highest criminal court analyzed the context of that argument and held the State did not impermissibly comment on the defendant's failure to testify because the argument at issue concerned the verity of the accused's written statement to police and did not concern anything to which he failed to testify at trial. Id. at 548-50.

In the case at bar, we conclude the State's challenged arguments do not comment on Porter's failure to testify. The State was summarizing all the evidence during the relevant portions of the jury argument. By the time of closing argument, the jury had already seen videotapes of Porter's custodial interviews, during which Porter repeatedly denied having ever owned or possessed a gun. Being mindful of such interview evidence, we conclude that, from the jury's perspective, the State's challenged arguments amount to reasonable comments on Porter's denials during those custodial interviews about having ever possessed or owned a gun--claims that, based on the entire tenor of the closing argument, the State clearly believed to be untrue. Cf. Coleman v. State, 881 S.W.2d 344, 358 (Tex. Crim. App. 1994) (four permissible areas of jury argument include summation of evidence, reasonable deductions from evidence, answer to argument of opposing counsel, and plea for law enforcement). The challenged arguments are not comments on Porter's failure to testify at trial.

(3) Ineffective Assistance of Counsel Has Not Been Shown

Porter also contends his trial counsel provided ineffective assistance by (a) failing to request a charge on sudden passion, (b) arguing Porter drew a pistol and shot Kennedy, (c) failing to elicit available character evidence for the jury's consideration during the punishment phase, (d) failing to object to the State's closing argument at guilt/innocence, and (e) failing to argue a two-shooter theory to create reasonable doubt as to Porter's guilt.

(a) Failing To Request a Charge on Sudden Passion Was Not Ineffective

Counsel did not request the trial court's punishment charge include a sudden-passion instruction. At the hearing on Porter's motion for new trial, counsel admitted that the substance of his punishment argument concerned a plea for mitigation in that Porter had acted under "sudden passion." Porter's appellate counsel then asked trial counsel, "[I]f that is indeed what was behind what you were getting at to the jury would it have not been better practice at the charge conference on punishment to bring that up and request the court to include that as part of the charge to the jury?" Trial counsel responded, "Yes. I agree." Porter's appellate counsel then asked, "Can you give the Court any reason here today as we sit here in terms of trial strategy or otherwise as to why you would not have done that?" Trial counsel admitted, "No. I can't give the court a reason why I didn't do that." This admission by his trial counsel forms Porter's first basis for claiming ineffective assistance now on appeal.

In this forum, the State suggests that a sudden-passion instruction would have been inconsistent with Porter's general theory of the case. The State contends that "[a]n abrupt change in theory in the midst of trial would not be credible." That may be a good general proposition, but such an argument ignores the fact that trial counsel did, in fact, change his trial strategy in the middle of the case--as evidenced by comparing the tenor of his closing argument on guilt/innocence with his argument at punishment.

The State also argues that the evidence did not support giving a sudden-passion instruction. To be entitled to a sudden-passion instruction, there must be evidence that the defendant caused the victim's death while the defendant acted "under the immediate influence of sudden passion arising from an adequate cause." Tex. Penal Code Ann. § 19.02(d) (emphasis added). The Texas Penal Code further defines "adequate cause" as something "that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Penal Code Ann. § 19.02(a)(1).

In Willis v. State, 936 S.W.2d 302, 305 (Tex. App.--Tyler 1996, pet. ref'd), the defendant was arguing with his stepson when the latter walked out of their home and broke out the windows of the defendant's car. Willis then went to another part of the home and retrieved a gun, which the defendant used to repeatedly shoot his stepson in the back. Id. at 305-06. In his videotaped confession, Willis testified the shooting was in self-defense. Id. at 306. In holding that the issue of sudden passion arising from adequate cause was not raised, the Tyler court noted that, in the videotaped confession, the defendant never stated that the incident caused him to be afraid or angry or that he acted under any emotional distress, and there was no other testimony to that effect. Id. at 309. Declaring that "we are not free to recognize the requisite heightened emotional state by implication" and "[i]t is not enough to merely depict the defendant's physical behavior and the physical context in which it arose," the Tyler court held that the issue simply was not raised. Id.

In Saldivar v. State, 980 S.W.2d 475, 505 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd), the defendant contended she was entitled to a charge on sudden passion arising from an adequate cause because she had become enraged after the victim divulged that the victim's father had accused Saldivar of embezzlement and lesbianism, which led to a continued argument in a motel room and immediately escalated into a killing. Id. In holding that sudden passion arising from an adequate cause was not raised, the Houston court admitted the victim initially provoked the defendant's anger. Id. at 506. However, the appellate court concluded Saldivar's testimony did not amount to evidence of the extreme emotional and psychological state for which the definitions of sudden passion and adequate cause call. Id. The court noted that, to justify a charge on sudden passion arising from an adequate cause, the defendant's reactions to the triggering provocations must be an objectively common response that an ordinary, reasonable person would make. Id. An aberrational response to a stimulus that results in death will not meet the statutory definitions under chapter nineteen of the Texas Penal Code. Id. In reaching its holding, the court stated, "Shooting an employer and friend in the back as she walks away from an argument is not an objectively common response in an ordinary reasonable person." Id.

In this case, there is no evidence that the previous fight between Kennedy and Porter would have produced a degree of anger, rage, or resentment in a person of ordinary temper to the necessary degree that would cause such an ordinary person to lose his or her sensibilities and instinctively respond by drawing a pistol and shooting Kennedy--especially when all the eyewitnesses said Porter shot Kennedy after the fight had ended and the two had physically separated. In fact, during Porter's jailhouse interviews, he repeatedly states he was unafraid of Kennedy (in light of the size differential between the two) and was an otherwise peaceable man. Finally, Porter's own statement to police shows he was the aggressor in the initial confrontation, a factor that some courts have said deprives a murderer of the right to claim self-defense. See, e.g., Westbrook v. State, 846 S.W.2d 155, 159 (Tex. App.--Fort Worth 1993, no pet.) (defendant not entitled to sudden-passion instruction when evidence showed he was initial aggressor).

Because no evidence supports any claim that the shooting was produced by an adequate cause, Porter would not have been entitled to an instruction on sudden passion. Cf. Adanandus v. State, 866 S.W.2d 210, 230-31 (Tex. Crim. App. 1993) (evidence showed defendant shot victim after scuffle between two had ended; victim in prone position and defendant in upright position when fatal shot fired). Ineffective assistance based on this claim is unsupported by the record.

(b) Counsel's Admission, During Punishment, that Porter Shot Kennedy Was Not Ineffective

Defense counsel's theory of the case during guilt/innocence was that Porter did not shoot Kennedy. Counsel's theory of the case changed, however, once the trial went into the punishment phase. In his punishment summation, Porter's trial counsel assumed the shooting and sought to mitigate blame:

At some point, [Porter] snaps, loses his temper completely. Now, that's what happens when you mix young men and firearms and violent physical confrontations. People lose their temper, they snap, they do things that on sober reflection they'd never do. So that's what we have. We have one moment of extreme anger. And I'm not putting all the blame on Derrick Kennedy. I'm not putting all the blame on Curt Porter either, but what he did was wrong and deserves the punishment.

On appeal, Porter now argues that counsel's argument during punishment amounted to ineffective assistance because such argument amounted to an admission of the crime.

It is not unreasonable for a trial attorney to accept the jury's verdict on guilt/innocence and try to mitigate punishment by arguing that the facts show the defendant acted not out of cold-bloodedness, but out of sudden whim. Such an argument might persuade a jury to assess punishment at the lower end of the applicable sentencing range. The fact that such an argument did not work here does not necessarily mean that the argument was devoid of a reasonable trial strategy; the result (of Porter receiving a maximum punishment) merely means counsel's trial strategy did not work. We cannot say that no reasonable attorney would have employed such a strategy. As such, we cannot conclude the record on this issue will support a finding of ineffective assistance.

(c) Not Calling More Character Witnesses Was Not Ineffective

Porter also claims he received ineffective assistance at trial because his trial counsel failed to call more than one character witness on his behalf during punishment. The appellate record shows that, during punishment, Porter's trial counsel called but one witness, Reverend Adrian Porter. At the hearing on Porter's motion for new trial, Porter called several more witnesses, each of whom testified that he or she would have testified as character witnesses on Porter's behalf at the punishment trial, if only they had been called. Porter's trial counsel explained that he called none of these witnesses because he had instructed them each to be at Porter's trial by 8:30 on the morning of the punishment trial and that none, except for Reverend Porter, arrived until after 9:00, which was well after the punishment trial had begun. Because of their untimely arrival, Porter's trial counsel did not have the opportunity to discuss their potential testimonies before calling them to the witness stand. Additionally, the at-issue witnesses came into the courtroom during Reverend Porter's testimony, "the rule" had been invoked by both sides in this case, and these witnesses had listened to part of Reverend Porter's testimony. Porter's trial counsel testified to his belief that, by hearing Reverend Porter's testimony, each witness had violated "the rule" and thus would have been excluded by the State had Porter's trial counsel attempted to call any of them to testify. The only character witness who had not violated "the rule" and who was in court at the proper time, Reverend Porter, did testify on behalf of the accused.

The explanation by Porter's trial counsel on this issue portrays a reasoned trial strategy. While a different lawyer might have sought a waiver of "the rule" for these witnesses, there is no evidence in the record that either the trial court or the elected district attorney (who was the lead prosecutor in this case) would have allowed the witnesses to testify. We conclude the record before us does not support Porter's claim of ineffective assistance on this issue.

(d) Not Objecting to the State's Arguments Was Not Ineffective

Porter next contends he received ineffective assistance from his trial counsel because the latter did not object to the State's closing argument during guilt/innocence. The State's challenged statements in this sub-issue are the same statements made by the State that were the subject of Porter's point of error asserting that the State commented on Porter's failure to testify.

We have already addressed the appropriateness of the State's challenged arguments during guilt/innocence, and found that they presented no reversible error. Accordingly, we similarly conclude Porter's trial counsel did not render ineffective assistance by failing to object to the State's challenged arguments because such arguments (when viewed in context and from the perspective of the jury) did not necessarily comment on Porter's failure to testify at trial, but instead permissibly commented on evidence contained in Porter's custodial interviews.

(e) Failure to Argue a Two-Shooter Theory During Guilt/Innocence Was Not Ineffective

Finally, Porter contends his trial counsel provided ineffective assistance by failing "to argue to the jury that the two bullets and two wounds raised a reasonable doubt about Appellant's guilt, because that evidence points to the presence of two weapons and two assailants, not to Appellant."

The substance of an attorney's closing argument is inherently a product of trial strategy. See generally Ramirez v. State, 229 S.W.3d 725, 730-31 (Tex. App.--San Antonio 2007, no pet.). Porter's trial counsel argued that the evidence was insufficient because the State's witnesses were incredible, an argument that is both common among the defense bar of this state and entirely reasonable based on the notable testimony adduced at trial on the lack of credibility of both Hodge and Crump, the State's primary witnesses. Now, with the advantage of hindsight, appellate counsel would now present a different theory of the case in an effort to create reasonable doubt among the jurors' minds. Simply because a jury did not buy into a defense strategy does not mean the strategy was flawed or substandard. Finally, we note that, even if we accepted Porter's claim that his trial counsel's argument fell below professional norms, the record before us provides no evidence that such argument necessarily prejudiced Porter. Cf. Ex parte McFarland, 163 S.W.3d 743, 758 n.50 (Tex. Crim. App. 2005) (capital murder habeas applicant did not demonstrate record established that, but for counsel's allegedly inadequate closing argument, jury would have answered special issues differently).

We overrule this point of error.

(4) Denying Porter's Motion for New Trial Was Not Error

Porter also contends the trial court erred by overruling his motion for new trial. Porter's motion for new trial raised two issues: (A) ineffective assistance of trial counsel and (B) juror misconduct. The trial court heard testimony on both issues at an evidentiary hearing on Porter's motion. At the conclusion of the hearing, the trial court took the matter under advisement and later summarily denied the motion without explanation. Porter now asserts the trial court should have granted a new trial based on the proof of either ineffective assistance or juror misconduct.

We review a trial court's ruling on a motion for new trial for abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). It should also be noted, however, that "both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." Strickland v. Washington, 466 U.S. 668, 698 (1984); see also Williams v. Taylor, 529 U.S. 362, 419 (2000). Therefore, although we generally use an abuse-of-discretion standard to review decisions to grant or deny motions for new trial, we are not bound by the trial court's conclusion regarding effectiveness of counsel. See Strickland, 466 U.S. at 698; Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005). If the trial court is not in an appreciably better position than the appellate court to determine an issue of ineffective assistance, the reviewing court may independently determine the issue while necessarily affording deference to the trial court's factual findings. Miller v. Fenton, 474 U.S. 104, 117 (1985); Villarreal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (McCormick, P.J., concurring).

(a) Ineffective Assistance of Counsel Was Not Established

We have addressed Porter's claims of ineffective assistance on their merits. On the same basis as we stated above, we conclude the trial court was not bound to find ineffective assistance. We, therefore, conclude the trial court did not err by denying Porter's motion for new trial to the extent that it was based on a claim of ineffective assistance of counsel.

(b) The Trial Court Did Not Abuse Its Discretion on the Juror Misconduct Issue

To his motion for new trial Porter attached affidavits from several trial spectators. The first, Raven Covy, is Porter's fiancé. Covy testified that she observed one of Porter's jurors sleeping during the trial. Another spectator, Vivian Porter, testified that he saw some of the jurors sleeping during his grandson's trial. Porter's mother, Tumar Porter, similarly testified to having seen sleeping jurors.

The trial court was in the best position to evaluate the credibility of the witnesses on this issue and could also rely on its independent memory and observations of the jurors during trial. As the trial court's decision to deny Porter's motion for new trial could have been based on either its determination of witness credibility or the court's independent recollection of events (or both), and because the trial court was in an appreciably better position both to determine witness credibility and to observe the now at-issue jurors during trial, we must defer to such a determination and overrule Porter's claim of error.

(5) Porter's Sentence Is Not Cruel and Unusual Punishment

Porter also contends the jury's assessment of his punishment at life imprisonment constitutes cruel and unusual punishment. Several considerations require us to overrule this contention.

First, Porter's punishment fell within the range authorized by our law. He was convicted of murdering Kennedy by shooting him with a firearm. Murder is a first-degree felony. See Tex. Penal Code Ann. § 19.02(c). The punishment range for a first-degree felony is imprisonment for life or for any term not more than ninety-nine years or less than five years. See Tex. Penal Code Ann. § 12.32(a) (Vernon 2003). "Texas courts have traditionally held that as long as the punishment is within the range prescribed by the Texas Legislature, the punishment is not excessive, cruel, or unusual." Sierra v. State, 157 S.W.3d 52, 65 (Tex. App.--Fort Worth 2004), aff'd, 218 S.W.3d 85 (Tex. Crim. App. 2007); see also Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Alberto v. State, 100 S.W.3d 528, 529 (Tex. App.--Texarkana 2003, no pet.). Because Porter's life sentence fell within the statutory punishment range, his claim that his sentence constitutes cruel and unusual punishment--and thereby violates the Eighth Amendment to the United States Constitution--lacks support in our jurisprudence. See U.S. Const. amend. VIII.

Second, to determine whether Porter's life sentence is cruel, unusual, or similarly disproportionate, evidence in the appellate record would be needed regarding what sentences other Texas defendants have received for murder. See Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277, 292 (1983). There is no such evidence in this appellate record. Nor is there is any evidence in the appellate record of what sentences other defendants in other states have received for murder. See Solem, 463 U.S. at 292. Thus, even if we were to ignore the appellate jurisprudence of this State and conclude that a life sentence is necessarily too severe a punishment to assess against someone convicted of murder, the appellate record contains insufficient evidence for use in analyzing the remaining Solem factors to determine whether Porter's appellate record will support a challenge to his sentence under the Eighth Amendment. Cf. Guin v. State, 209 S.W.3d 682, 687-88 (Tex. App.--Texarkana 2006, no pet.); Williamson v. State, 175 S.W.3d 522, 525 (Tex. App.--Texarkana 2005, no pet.); Alberto, 100 S.W.3d at 530.

Finally, the United States Supreme Court has repeatedly stated that the determination of appropriate punishment ranges for felony offenses is a matter of legislative prerogative. See, e.g., Harmelin, 501 U.S. at 962 (Scalia, J., writing for the majority). To the extent Porter asks this Court to effectively rewrite this State's punishment laws, we decline the invitation. Because Porter's sentence fell within the applicable punishment range, his punishment presumptively passes muster under the Eighth Amendment.

(6) The Trial Court's Judgment Is Not Void, But Should be Reformed

Porter also contends "[t]he trial court reversibly erred when, in its judgment, it imposed sentence under section 19.02(b)(1), Texas Property Code, thereby having no jurisdiction to pronounce sentence, and, therefore, the judgment is void and of no effect." (Emphasis added.) While the written judgment cites to a nonexistent Section 19.02(b)(1) of the Texas Property Code, the remainder of the judgment makes clear that Porter was convicted of murder. See Tex. Penal Code Ann. § 19.02(b)(1) (one way to commit murder). The State contends the judgment's reference to the Texas Property Code is merely a clerical error that can be reformed either on appeal or through a nunc pro tunc judgment entered by the trial court. ⁽³⁾

The State is correct. The trial court's judgment referencing Article 19.02 of the Texas Property Code, rather than Section 19.02 of the Texas Penal Code, amounts to a mere clerical error and is not the product of judicial reasoning. See Dudley, 223 S.W.3d at 722; and contrast Harris v. State, 153 S.W.3d 394, 396-97 (Tex. Crim. App. 2005) (trial court's decision to increase sentence by fifteen years after first sentence vacated on appeal, not permissible correction of unauthorized sentence nor permitted revision of judgment via nunc pro tunc). We have the authority to reform the trial court's judgment to reflect that the jury found Porter guilty of murder in violation of Section 19.02 of the Texas Penal Code. See, e.g., French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992); Gonzalez v. State, 527 S.W.2d 540, 541 n.1 (Tex. Crim. App. 1975). Accordingly, the trial court's judgment is reformed to reflect Porter was convicted for violating the Texas Penal Code rather than the Texas Property Code. We otherwise overrule this point of error.

(7) The Trial Court Did Not Err in Failing to Issue, Sua Sponte, a Sudden-Passion Instruction

Finally, Porter contends the trial court erred by failing to, sua sponte, instruct the jury on sudden passion. We disagree.

"If a defendant is convicted of murder, he or she may argue at punishment that he or she caused the death of the victim while under the immediate influence of sudden passion arising from adequate cause." Bradshaw v. State, No. 06-06-00178-CR, 2007 WL 4224853, at *1 (Tex. App.--Texarkana Dec. 3, 2007, no pet.). "If a defendant establishes by a preponderance of the evidence that he or she did so, the offense level is reduced from a first-degree to a second-degree felony." Id. (citing Tex. Penal Code Ann. § 19.02; Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim. App. 2003)). "'Sudden passion' means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Tex. Penal Code Ann. § 19.02(a)(2). "Adequate cause" is that "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Tex. Penal Code Ann. § 19.02(a)(1).

In this case, the trial court could have reasonably concluded the evidence did not warrant a sudden-passion instruction. Porter was the initial aggressor in the fight precipitating Kennedy's death. Porter introduced a deadly weapon into the fracas. After he and Kennedy ended their scuffle, Porter drew a gun and shot the unarmed Kennedy. Porter did not testify that he had acted out of sudden fear, anger, or other emotion that was so intense that neither he nor any other normal human being could have overcome such passion. Therefore, without such evidence coming from Porter or some other source, the trial court had no evidence before it to mandate a sudden-passion instruction. We conclude the trial court did not err by failing to so instruct the jury.

We reform the trial court's judgment to substitute "Penal Code" for "Property Code" and affirm the judgment as reformed.

Date Submitted: February 13, 2008

Date Decided: March 10, 2008

Do Not Publish

1. Crump testified that he called 9-1-1 for an ambulance following the shooting. Several others testified about calling 9-1-1 after hearing the shooting.

2. Miranda v. Arizona, 384 U.S. 436 (1966).

3. Neither party to this appeal has directed the Gregg County District Clerk to supplement the record with a nunc pro tunc judgment from the trial court. See Hughes v. State, 493 S.W.2d 166, 170 (Tex. Crim. App. 1973) (trial court may issue judgment nunc pro tunc to correct clerical error); State v. Dudley, 223 S.W.3d 717, 721-22 (Tex. App.--Tyler 2007, no pet.) (nunc pro tunc is correct method for trial court to correct errors in judgment that are not product of judicial reasoning); see also Tex. R. App. P. 34.5(c) (any party may request supplementation of appellate record). Accordingly, we assume this issue has not been made moot by the trial court's issuance of a corrected judgment.