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At a Glance:
Title:
Brennan v. State
Date:
February 27, 2009
Citation:
334 S.W.3d 64
Status:
Published Opinion

Brennan v. State

Court of Appeals of Texas,

Dallas.

Randy Ray BRENNAN, Appellant,

v.

The STATE of Texas, Appellee.

No. 05–08–00123–CR.

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Feb. 27, 2009.

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Rehearing Overruled April 1, 2009.

Attorneys & Firms

*67 Dan E. Wood, Jr., Terrell, for Appellant.

Richard Harrison, J. Landon K. Schmidt, Crim. Dist. Atty., Kaufman, for State.

Before Justices MAZZANT.

OPINION

Opinion By Justice MAZZANT.

Randy Ray Brennan was convicted of driving while intoxicated and sentenced to ten years in prison and a $1000 fine. In nine issues, he argues that the statutory county court did not have subject matter jurisdiction over the merits of his case and that he received ineffective assistance of counsel. We affirm the trial court’s judgment.

DISCUSSION

Jurisdiction

In his first issue, appellant argues that the trial court did not have subject matter jurisdiction over the merits of his case.

According to the record, on August 12, 2006, appellant was arrested for the offense of driving while intoxicated. The subsequent indictment, which was filed on March 29, 2007, alleged that he had two prior convictions for driving while intoxicated (DWI), thereby elevating the offense to a third-degree felony. See TEX. PENAL CODE ANN. § 49.09(b)(2) (Vernon 2003).

Appellant’s felony DWI was tried in the Kaufman County Court at Law before twelve jurors. The Kaufman County Court at Law is a statutory county court created in 1993. See Act of May 19, 1993, 73rd Leg., ch. 197, § 1, 1993 Tex. Gen. Laws 384, 384–85 (codified at (b) (Vernon Supp. 2008). The relevant provisions are as follows:

*68 (a) In addition to the jurisdiction provided by Section 25.00031 and other law, a statutory county court in Kaufman County has, except as limited by Subsections (b) and (b–1), the jurisdiction provided by the constitution and general law for district courts.

(b) A statutory county court in Kaufman County does not have general supervisory control or appellate review of the commissioners court or jurisdiction of:

(1) felony cases involving capital murder;

(2) suits on behalf of the state to recover penalties or escheated property;

(3) misdemeanors involving official misconduct; or

(4) contested elections.

(b–1) The County Court at Law No. 2 of Kaufman County does not have jurisdiction of civil cases in which the amount in controversy exceeds the limit prescribed by Section 25.0003(c)(1).

Id.

The Texas Constitution requires a jury in a felony case to be composed of twelve members. TEX. CODE CRIM. PROC. ANN. art. 36.29(a)) with Act of May 19, 1993, 73rd Leg., ch. 197, § 1, 1993 Tex. Gen. Laws 384, 384–85.

Appellant points out that TEX. CONST. art. V, § 17. Therefore, because a defendant in a felony case must be tried before a jury of twelve persons and the Texas Constitution provides for a jury panel of only six in *69 county courts, appellant claims the Kaufman County Court at Law did not have subject matter jurisdiction over his felony DWI case.

One problem with appellant’s argument is that his DWI case was tried in a statutory county court, not a constitutional county court. “County court” is defined in the government code as “the” court created in each county pursuant to the Texas Constitution’s TEX. GOV’T CODE ANN. § 25.1312 (Vernon Supp. 2008) (containing specific grant of jurisdiction to Kaufman County Court at Law)). Applying these authorities, it therefore follows that a statutory county court in Kaufman County may empanel twelve jurors to hear a felony DWI case.

Appellant nonetheless argues that Section 25.0007 reads:

The drawing of jury panels, selection of jurors, and practice in the statutory county courts must conform to that prescribed by law for county courts, except that practice, procedure, rules of evidence, issuance of process and writs, and all other matters pertaining to the conduct of trials and hearings in the statutory county courts, other than the number of jurors, that involve those matters of concurrent jurisdiction with district courts are governed by the laws and rules pertaining to district courts. This section does not affect local rules of administration adopted under Section 74.093.

TEX. GOV’T CODE ANN. § 25.0007 (Vernon 2004) (emphasis added).

Appellant’s argument is unpersuasive, however, because it ignores section 25.1312, the provision that establishes the *70 jurisdiction of a statutory county court at law in Kaufman County.

Applying TEX. GOV’T CODE ANN. § 311.026(b). We therefore conclude that the statutory county court in Kaufman County had subject-matter jurisdiction over appellant’s felony DWI, including the ability to empanel twelve jurors to hear the case. We overrule appellant’s first issue.

Ineffective Assistance of Counsel Claims

Appellant’s remaining issues allege ineffective assistance of counsel. Appellant claims counsel was deficient because he failed to object to rule 404(b) evidence (issue two); ensure that a voir dire record was made (issue three); properly exercise peremptory strikes (issue four); object to the lack of qualifications for “expert” testimony (issue five); request a limiting instruction for the prosecutor’s alleged improper closing argument (issue six); investigate any alterations to the video tape of the field sobriety test (issue seven); and present mitigation evidence during punishment (issue eight). Appellant’s ninth and final issue alleges cumulative error.

Standard of Review and Applicable Law

Appellant was entitled to reasonably effective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.Crim.App.2003).

In determining whether the Id.

A criminal defense lawyer has a duty to make an independent investigation of the facts of a case, which includes seeking out and interviewing potential witnesses. Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.2005).

We review a trial court’s ruling on a motion for new trial under an abuse-of-discretion standard. Id.

Silent Record

Noting that four of the grounds appellant raises on appeal for ineffective assistance of counsel—issues two, four, five, and six—were not presented to the trial court in the original motion for new trial, amended motion for new trial, or argued at the hearing, the State contends these claims are procedurally defaulted or, at the very least, that the presumption of sound trial strategy has not been overcome.

In this case, appellant’s amended motion for new trial alleged counsel was ineffective because he failed to (1) object to appellant’s absence and lack of participation during the exercise of peremptory strikes; (2) strike a member of the venire who lost a loved one to a drunk driver; (3) object to the court’s Allen charge;4 (4) object to the stipulation contained in the court’s charge; (5) object to the video tape of the stop on the grounds it had been altered; (6) present mitigating evidence during punishment; and (7) contest the legality of the stop by filing a motion to suppress. However, appellant did not litigate in the trial court the following ineffective assistance claims that he now brings on appeal as issues two, four, five, and six: failure to object to rule 404(b) evidence; failure to properly exercise peremptory strikes; failure to object to lack of qualifications for “expert” testimony; and failure to request a limiting instruction for the prosecutor’s alleged improper closing argument.

The general rule is that an alleged error must be brought to the attention of the trial court before a complaint can be heard on appeal. Id.

Appellant does not dispute that some of his allegations were not presented in the *73 trial court. Citing the Landers v. State, 110 S.W.3d 617 (Tex.App.-Houston [14th Dist.] 2003, pet. ref’d), cited by the State, which appellant argues is a misapplication of the procedural default rule.

We believe that appellant is misinterpreting Id.

We reach a similar conclusion in the present case. In the case at bar, as in Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Accordingly, as will be explained in the following paragraphs, the presumption of sound trial strategy has not been overcome as to those issues which were not presented to the trial court in the original motion for new trial, amended motion for new trial, or argued at the motion for new trial hearing.

Voir Dire Record

We begin with those issues that were not developed in the trial court. Appellant’s second issue claims trial counsel failed to object to portions of the prosecutor’s opening and closing statements that he suggests improperly informed the jury of appellant’s prior driving-while-intoxicated convictions.

According to the record, appellant stipulated he was the person named in the judgments proving the two previous DWI convictions. As a result, the State was prevented from offering proof of the previous convictions during its case. See Tamez *74 v. State, 11 S.W.3d 198, 202 (Tex.Crim.App.2000).

As evidence of trial counsel’s ineffectiveness, appellant calls our attention to six statements made by the prosecutor during opening and closing statements that he contends improperly informed the jury of his prior driving-while-intoxicated convictions. In the second sentence of her opening statement, for example, the prosecutor stated, “[T]his [DWI charge] was not an isolated incident for the Defendant. In fact, he had a pattern of this behavior.” After providing the dates and locations of two prior DWI convictions, the prosecutor then stated that appellant “was arrested yet again, for driving while intoxicated that occurred on August 12, 2006, in Terrell, Texas, and that’s the case we are here on today.” In her closing statement on guilt-innocence, the prosecutor stated “the evidence in this case has shown that the Defendant continues to put the public at risk by drinking and driving on roads in Texas.” The prosecutor also told the jury, “You have evidence that the Defendant has previously been convicted of driving while intoxicated.” A short while later, the prosecutor stated, “The Defendant has a pattern of drinking and driving on roads in Texas. This is not an isolated incident.” According to appellant, these statements, to which trial counsel did not object, constituted evidence of appellant’s prior DWI convictions and were admissible for no other reason than to prove character-conformity.

Because appellant did not assert any of these allegations in the motion for new trial, amended motion for new trial, or at the hearing on the motions for new trial, the record is silent as to why counsel did not object. We cannot speculate beyond the record provided and must presume the actions taken by trial counsel were part of a strategic plan for representing his client. Edmond v. State, 116 S.W.3d 110, 115 (Tex.App.-Houston [14th Dist.] 2002, pet. ref’d). Given the present record, appellant has not shown that counsel’s performance fell below an objective standard of reasonableness.

Appellant next argues that trial counsel failed to object to the State’s improper use of the prior DWI convictions during the guilt-innocence phase of the trial. Appellant points to the State’s cross-examination of him as evidence the prosecutor impermissibly attempted to present evidence of the prior convictions for character-conformity purposes. In fact, the record shows the prosecutor, while cross-examining appellant during the defense’s case-in-chief, was impeaching the defense’s theory that appellant’s wife’s cancer drove him to drink. Counsel *75 objected to the prosecutor’s line of questioning, noting that a motion in limine was “in place ... regarding the jurisdictional offenses.” The trial court sustained the objection and a limiting instruction was included in the court’s charge. Consequently, we cannot say, based upon this record, that appellant has demonstrated counsel was deficient or that, if he was, the outcome of his trial would have been different. We overrule appellant’s second issue.

Challenges Outside the Strike Zone

Appellant’s fourth issue claims that trial counsel used three of his ten peremptory strikes on panel members that were outside of the “strike zone.”

According to the record, counsel testified at the hearing that all of the chosen jurors said they could be fair and impartial and that, in his legal opinion, the final jurors “were the best people that we could get on that assignment.” However, the record is silent as to why trial counsel used peremptory strikes on jury panel members that were outside of the “strike zone.”6 The court of criminal appeals has noted that the right to trial by impartial jury, like any other right, is subject to waiver or even forfeiture by the defendant in the interest of overall trial strategy. See Delrio v. State, 840 S.W.2d 443, 446 (Tex.Crim.App.1992). Based on the record before us, we conclude that the presumption of sound trial strategy has not been overcome. We overrule appellant’s fourth issue.

Expert Testimony

In his fifth issue, appellant argues counsel was ineffective because he failed to object, based on Texas Rule of Evidence 702, to the lack of qualifications of a State’s witness to provide an expert opinion about a normal person’s reaction after driving off of the road.

According to the record, the witness, Nathan Fojt, was a passenger in a vehicle traveling on Farm–to–Market Road 429 on August 12, 2006, who saw appellant’s vehicle swerve off of the road and into a ditch, and then quickly move back onto the road. Fojt contacted the Kaufman County Sheriff’s Department and reported his observations. The relevant portion of the record reads:

Q [PROSECUTOR]: Now, did you, while you were traveling, did you notice anything unusual on the roadway?

A [WITNESS]: Yes, ma’am. I saw a car start swerving, and it went off the roadway, and went into a ditch, and then came back on the road.

Q. And, when you said that you noticed the vehicle swerving, can you describe what you mean by swerving?

A. It just was—it was like just kind of going back and forth and it wasn’t a *76 windy day so, I mean, it wasn’t no reason for somebody just be swerving like that and then that was, you know, somebody might have just been messing around with something in the passenger seat. But, when it got my attention is whenever the car left the roadway in the ditch and then came back on and maintained the speed. Most time people they react to it and they slam on the brakes but, that car didn’t, it just kept on and it went straight back on the road.

Because appellant’s claim was not alleged in his motion for new trial, amended motion for new trial, or argued at the hearing on the motions for new trial, the record is silent as to any strategies employed by trial counsel. We note, however, that there is no indication in the record Fojt’s testimony was offered as expert opinion. At most, it appears to have been lay opinion testimony admissible under rule 701. See Edmond, 116 S.W.3d at 115. Based on the record before us, we cannot say appellant has demonstrated that counsel was deficient or that, if he was, the outcome of his trial would have been different. We overrule appellant’s fifth issue.

Prosecutor’s Closing Argument

Appellant’s sixth issue argues counsel was ineffective because he did not ask for an instruction to disregard when the prosecutor allegedly engaged in improper jury argument.

According to the record, during closing arguments the prosecutor told the jury, as she was discussing whether appellant violated a traffic law when his vehicle left the right side of the road and drifted towards the center of the road, then moved back to the right side of the road as traffic came towards him,

this is where you see in the video when the officer is coming up behind the Defendant, and he says the Defendant—there’s no marked lanes but the Defendant is drifting towards the center of the road. Was the Defendant doing that? Yes. Was that a violation of the traffic code? Yes. And, the officer seemed a little confused about that, so I went and looked it up just to make sure. And, that is a violation of the traffic code. It says—

Trial counsel objected that the prosecutor was “giving law that’s not in the Court’s charge.” The trial court sustained the objection, cautioning the prosecutor not to “argue outside the record.” Counsel did not request an instruction for the jury to disregard. The prosecutor then continued her argument:

The Defendant was not driving on the right side of the roadway. He left the right side, drifted towards the center of the roadway, had to move back to the right side when oncoming traffic came towards him, and that is a violation of the Texas Transportation Code. Now, the officer could use either one of these violations to pull the Defendant over....

Counsel did not lodge any further objections or request additional relief.

Appellant argues trial counsel’s failure to request further relief means that error was not preserved when (according to appellant) the prosecutor improperly instructed the jury on Texas traffic law. Because this claim was not alleged in appellant’s motion for new trial, amended motion for new trial, or argued at the hearing on the motion for new trial, the record is silent as to why counsel did not ask for an instruction to disregard. It is quite possible trial counsel may have concluded *77 his sustained objection was sufficient to prevent the prosecutor from continuing her statement and that requesting further relief would have only highlighted the prosecutor’s statement. See, e.g., Taylor v. State, 947 S.W.2d 698, 704 (Tex.App.-Fort Worth 1997, pet. ref’d). Based on the record before us, we are unable to conclude that trial counsel’s action was unreasonable and, thus, deficient. Appellant’s sixth issue is overruled.

Voir Dire Record

We next address those allegations that were developed in the trial court. We begin with appellant’s third issue, which faults trial counsel for failing to ensure a complete record was made of the voir dire.

The present record includes only part of the voir dire proceedings, that is, the individual voir dire strikes and final jury selection. During the motion for new trial hearing, counsel said it was his typical practice to have the voir dire recorded and that there was no trial strategy associated with the failure to ensure that a full record was made of voir dire.

Mere failure of counsel to request recordation of the voir dire examination is not ineffective assistance of counsel per se. Gonzales v. State, 732 S.W.2d 67, 68 (Tex.App.-Houston [1st Dist.] 1987, no pet.).

To satisfy the harm prong of wound up serving as the final 12 jurors.” Counsel also testified he questioned the jury panels concerning whether the final jurors chosen could be fair and impartial and that none of the jurors chosen avowed to the contrary or were equivocal in their answers. Appellant further admitted during cross-examination at the motion for new trial hearing that although the complained-of juror initially stated she could not be fair and impartial, “she sat there for a minute and she said, ‘yeah, I can.’ ”

*78 The trial court is afforded deference on any underlying historical fact determinations. See Strickland has not been satisfied. We overrule appellant’s third issue.

Video

In his seventh issue, appellant argues trial counsel failed to adequately investigate the video of the field sobriety test made by the arresting officer.

At trial, when asked about the video of the field sobriety tests, appellant testified:

Q [DEFENSE COUNSEL]: How many police officers were there?

A [APPELLANT]: There’s three in that video, but there’s a woman somewhere because she walked that road too.

Q. When did that happen?

A. That happened the same day.

Q. Well, I mean, when you say the same day—

A. It happened during that deal—that—

Q. And, you realize there’s no woman on that video?

A. That’s right.

Q. Are you saying that she demonstrated that test to you?

A. She demonstrated too because she got mad, because she said I want to show you how to walk this line. So, she started twisting and going down the line, so I did it like she did, and she said—and I said, now, that’s the way women walk, do you want [me] to walk that way? And, she got mad.

At the motion for new trial hearing, trial counsel recalled appellant mentioned to him that the video tape of the field sobriety test was incomplete because it did not show the female officer who allegedly instructed appellant on how to perform the field sobriety test. After reviewing the videotape, however, counsel concluded that it had not been altered. Counsel noted the minutes on the videotape appeared in “sequential” order and there was no evidence the tape had been “tampered with.” Counsel added that the offense report and the arresting officer’s notes did not mention any female officer at the scene. Counsel also said, “In fact, I believe the arresting officer was the only person there.” When asked if he inquired about the identity of “this other female officer,” counsel replied, “I recall during cross-examination of the arresting officer, asking if a female or if anyone else was present, and he indicated they were not.” Based on the record before us, we therefore conclude appellant has failed to demonstrate that counsel was deficient or that, if he was, the outcome of his trial would have been different. We overrule appellant’s seventh issue.

Mitigation

In his eighth issue, appellant claims counsel was deficient because he did not present any mitigation evidence to the jury during the punishment phase of the trial. Specifically, appellant claims defense counsel should have called appellant’s *79 sister to testify about the “emotionally tumultuous state of mind” he was under at the time of his arrest and counsel should have employed a psychiatrist to testify about appellant’s mental capacity.

A claim of ineffective assistance of counsel based on counsel’s failure to call witnesses fails in the absence of a showing that such witnesses were available to testify and that the defendant would have benefitted from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983)). Here, appellant has not made such a showing. According to the record, defense counsel testified at the motion for new trial hearing that appellant’s treating physician, Dr. Wilson, told him that psychiatric testimony was “outside his realm of experience.” Counsel also testified that, as a matter of trial strategy, he “did not want a doctor or any other witness taking the stand [and] letting the jury know that [appellant] was on some medication, prescription, or otherwise that would have impaired his ability to drive.” Appellant also failed to show a psychiatrist or psychologist was available and willing to testify regarding appellant’s mental capacity. Furthermore, although appellant’s sister testified at the motion for new trial hearing, appellant did not elicit any testimony from her concerning whether she was willing to testify as to his “emotionally tumultuous state of mind.” Based on the record before us, we therefore conclude appellant has failed to demonstrate that counsel was deficient or that, if he was, the outcome of his trial would have been different. We overrule appellant’s eighth issue.

Cumulative Error

Appellant’s ninth issue asserts his trial counsel’s cumulative errors amounted to ineffective assistance. Because we conclude appellant has failed to show his trial counsel’s performance was deficient on any ground, there can be no cumulative error or harm. We therefore conclude appellant’s ineffective assistance claim fails because he has not rebutted the presumption that his counsel’s conduct falls within a wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. Issue nine is overruled.

We affirm the trial court’s judgment.

Footnotes

1

Section 25.0003 reads as follows:

(a) A statutory county court has jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts.

(b) A statutory county court does not have jurisdiction over causes and proceedings concerning roads, bridges, and public highways and the general administration of county business that is within the jurisdiction of the commissioners court of each county.

(c) In addition to other jurisdiction provided by law, a statutory county court exercising civil jurisdiction concurrent with the constitutional jurisdiction of the county court has concurrent jurisdiction with the district court in:

(1) civil cases in which the matter in controversy exceeds $500 but does not exceed $100,000, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs, as alleged on the face of the petition; and

(2) appeals of final rulings and decisions of the division of workers’ compensation of the Texas Department of Insurance regarding workers’ compensation claims, regardless of the amount in controversy.

(d) Except as provided by Subsection (e), a statutory county court has, concurrent with the county court, the probate jurisdiction provided by general law for county courts.

(e) In a county that has a statutory probate court, a statutory probate court is the only county court created by statute with probate jurisdiction.

(f) A statutory county court does not have the jurisdiction of a statutory probate court granted statutory probate courts by the Texas Probate Code.

TEX. GOV’T CODE ANN. § 25.0003 (Vernon Supp. 2008).

2

Appellant mistakenly asserts that “[s]ection 25.1312 was enacted in 2005.” In fact, the 2005 amendment to 25.1312 authorized the creation of a second statutory county court, the County Court at Law No. 2 of Kaufman County. See Act of June 17, 2005, 79th Leg., ch. 776, §§ 1, 2, 2005 Tex. Gen. Laws 2670, 2670–71. As noted previously, the record indicates appellant was tried before the County Court at Law of Kaufman County, the statutory county court created in 1993.

3

Appellant also suggests a recent amendment to article 36.29(d) could not have altered the Kaufman County Court at Law’s jurisdiction.

4

See Howard v. State, 941 S.W.2d 102, 123 (Tex.Crim.App.1996).

5

The court also noted that an amended motion for new trial was neither presented to nor heard by the trial court. Id.

6

Appellant attached counsel’s strike list to his brief, arguing that since it was referred to by counsel during the motion for new trial hearing we should consider it on appeal. However, the strike list was not offered into evidence at the hearing and it is not found in the clerk’s record. Thus, we may not consider it. See Wright v. State, 178 S.W.3d 905, 917 (Tex.App.-Houston [14th Dist.] 2005, pet. ref’d) (appellate court could not consider DVD attached to motion for new trial because it was not introduced at new trial hearing). The record of the motion for new trial hearing also shows that counsel merely referred to the strike list in determining whether a biased panel member actually served on the jury. He did not address appellant’s allegations as to why some of his strikes were outside of the “strike zone.”

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