Matthew Tomlinson v. State

Opinion issued on June 15, 2006 In The Court of Appeals For The First District of Texas NOS. 01-05-00400-CR 01-05-00417-CR MATTHEW WAYNE TOMLINSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause Nos. 42722 & 42723 MEMORANDUM OPINION Appellant, Matthew Wayne Tomlinson, was charged under two indictments with aggravated kidnapping and aggravated sexual assault. See Tex. Pen. Code Ann. §§ 22.02, 20.04 (Vernon Supp. 2005). Each indictment contained an enhancement paragraph alleging that appellant had a prior felony conviction for attempted murder. Appellant pleaded not guilty and waived his right to a trial by jury. The trial court found appellant guilty of both offenses and assessed punishment at 59 years’ confinement for each offense to be served concurrently. In his first point of error, appellant contends that the trial court erred in failing to find that the complainant was voluntarily released alive and in a safe place, which would have reduced the punishment. In his second point of error, appellant asserts that there was legally and factually insufficient evidence of identity to establish that appellant was a second offender. In his third point of error, appellant argues that the trial court committed reversible error by admitting extraneous offense evidence purporting to show that appellant committed another aggravated kidnapping upon another complainant. In his fourth point of error, appellant contends that he received ineffective assistance from his trial counsel because counsel neglected to order the extraction of DNA samples from appellant so that testing could be conducted. We affirm. Background The complainant, an 18-year-old woman, was walking home from a skating rink in Freeport, Texas when she noticed a car following her for several blocks. She testified at trial that she heard a car door slam. Appellant then came up behind her, put his hands around her mouth, grabbed her and put her into the passenger seat of a car. He pulled out a pocket knife, exposed the blade, and told her to be “a good girl” or he would kill her. The complainant testified that she did not know appellant and had never seen him before. Appellant placed the knife on the dashboard and drove to a nearby beach. Once there, he got out of the car, walked around to the passenger side, held the complainant’s hands down, and took off her pants. He then pulled down his pants and put his penis in the complainant’s vagina for about 10 seconds. Appellant told her that, if she did not “participate,” he was going to hurt her. The complainant testified that she did not know whether or not he had ejaculated. After the sexual assault, appellant put the complainant’s clothes back on, pulled up his pants, and drove her to an area near where she lived. When appellant released her, he told her to “be a good girl and don’t look back.” She walked to her brother’s house where her grandmother called the police. The complainant went to the emergency room for an examination, where a rape kit was done. Detective Rhyne with the Freeport Police Department testified that he responded to the report of the abduction and sexual assault. Several weeks after the complainant was abducted, Detective Rhyne received information on another aggravated kidnapping case in which descriptions of the suspect, the vehicle, and the items in the vehicle were very similar to those in this case. He discovered that appellant was the suspect in that case. Rhyne contacted the Texas Department of Public Safety (“DPS”) to create a photo lineup, which he later showed to the complainant. She identified appellant in the lineup, but could not be “100 % positive” in her identification. Rhyne then conducted a live lineup at the Brazoria County Jail and had each participant say aloud, “Be a good girl and don’t look back.” The complainant got out of her chair and tried to hide behind an officer when appellant spoke, apparently believing that he could see her through the one way glass. The complainant positively identified appellant in the live lineup. During the punishment phase of trial, appellant pleaded not true to the enhancement paragraph under both indictments. The enhancement paragraph alleged that appellant had been previously convicted of the felony offense of attempted murder on or about May 17, 1988 in cause number 18455 in the 23rd District Court of Brazoria County, Texas. The State called Assistant District Attorney Jon Hall as its only witness. He prosecuted appellant for an earlier aggravated kidnapping and identified appellant in court as the person he prosecuted. Hall noted that the enhancement paragraph in these cases was also alleged in the case that he prosecuted. He testified that, in his case, appellant pleaded true to the enhancement paragraph. The State offered a copy of the indictment in the prior kidnapping case, which included the enhancement language, and the docket sheet into evidence. The State also offered appellant’s penitentiary packet (“pen packet”) from the 1988 attempted murder case, which included appellant’s picture and identifiers such as height, weight, color of hair and eyes, complection, and the presence of scars on his forehead and right knee. At the conclusion of the punishment phase, the trial court sentenced appellant to 59 years in prison for each offense to be served concurrently, but to be served consecutively with his conviction in the prior aggravated kidnapping case. Voluntary Release In his first point of error, appellant contends that his conviction should be reversed for a new punishment hearing because the trial court committed fundamental error by failing to find that the complainant was released alive and in a safe place, thereby reducing the punishment range in the aggravated kidnapping case. We disagree. Aggravated kidnapping is generally punished as a first-degree felony, carrying a sentence of confinement for five to 99 years or life. Tex. Pen. Code Ann. §§ 12.32(a), 20.04(c) (Vernon 2003). At the punishment phase of trial, the defendant may raise the issue as to whether he “voluntarily released the victim in a safe place.” Tex. Pen. Code Ann. § 20.04(d) (Vernon 2003). If the defendant proves the issue by a preponderance of the evidence, aggravated kidnapping becomes punishable as a second-degree felony with a punishment range of two to 20 years. Tex. Pen. Code Ann. §§ 12.33(a), 20.04(c) (Vernon 2003). The burden to demonstrate the safe release lies with the defendant under section 20.04(d). Teer v. State, 923 S.W.2d 11, 15 n.4 (Tex. Crim. App. 1996). Here, appellant failed to raise the argument at the punishment phase that he voluntarily released the complainant in a safe place. Because appellant did not apprise the trial court in any way of this issue, he has not preserved it for appellate review. Tex. R. App. P. 33.1(a). Accordingly, we overrule appellant’s first point of error. Sufficiency of the Evidence In his second point of error, appellant complains that there was legally and factually insufficient evidence of identity to establish that appellant was the same person identified in the prior conviction alleged in the enhancement paragraphs. He contends that the State’s proof, which consisted of evidence that he pleaded true to the same enhancement paragraph in an aggravated kidnapping jury trial one year earlier and the pen packet from the prior offense containing appellant’s name, height, weight, hair and eye color, complexion, and location of scars, were insufficient to identify him as the defendant in the prior conviction alleged for enhancement. We disagree. Standard of Review When conducting a legal-sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Although a legal-sufficiency analysis entails a consideration of all evidence presented at trial, we may neither re-weigh the evidence nor substitute our judgment for the jury’s. King, 29 S.W.3d at 562. The jury, as trier of fact, is the sole judge of the credibility of witnesses and may believe or disbelieve all or any part of a witness’s testimony. Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.] 1994, no pet.). In a factual sufficiency review, we view all the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports an appellant’s complaint on appeal. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). In conducting the factual sufficiency review, we must also employ appropriate deference to the fact finder so that we do not substitute our judgment for that of the fact finder. Zuniga v. State, 144 S.W.3d 477, 481-82 (Tex. Crim. App. 2004). Unless the available record clearly reveals a different result is appropriate, an appellate court conducting a factual sufficiency review must defer to the fact finder’s determination concerning the weight given contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor. Id. at 408-09. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. Prior Convictions The State has the burden of proof beyond a reasonable doubt as to prior convictions alleged for enhancement of punishment. Ex parte Augusta, 639 S.W.2d 481, 484 (Tex. Crim. App. 1982), overruled on other grounds by Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999). Certified copies of convictions are admissible into evidence. Tex. R. Evid. 901(b)(7); Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App.1986); Perez v. State, 21 S.W.3d 628, 630 (Tex. App.—Houston [14th Dist.] 2000, no pet.). However, these documents, standing alone, are normally not sufficient to prove a prior conviction. Beck, 719 S.W.2d at 210. Rather, the State must present independent evidence sufficient to support a finding that the defendant on trial is the same person as the one named in the conviction. Id.; Perez, 21 S.W.3d at 630. Appellant cites no evidence that he contends undermines the trial court’s verdict. Sims, 99 S.W.3d at 603. The Court of Criminal Appeals has recognized four ways to prove prior convictions: (1) testimony of a witness who personally knows the defendant and the fact of his prior conviction and identifies him; (2) stipulation or judicial admission of the defendant that he has been so convicted; (3) introduction of certified copies of the judgment, sentence, and record of the Texas Department of Corrections or a county jail including fingerprints of the accused supported by expert testimony identifying them with known prints of the defendant; or (4) comparison by the fact finder of a record of conviction which contains photographs and a detailed physical description of the named person, with the appearance of the defendant, present in court. Daniel v. State, 585 S.W.2d 688, 690-91 (Tex. Crim. App. 1979). These, of course, are not exclusive. Littles v. State, 726 S.W.2d 26, 28 (Tex. Crim. App. 1984). Analysis In this case, the State offered evidence under three of the four methods to prove appellant’s prior conviction. Under the first method, the State called Assistant District Attorney Jon Hall, the only witness to testify during the punishment phase. Hall prosecuted appellant for aggravated kidnapping in cause number 39735 approximately one year earlier. He identified appellant in court as the person he prosecuted and testified that the enhancement paragraph at issue in the two instant cases, cause numbers 42723 and 42722, alleged the same prior conviction as the enhancement paragraph in the case he prosecuted. The prior conviction alleged in the enhancement paragraphs was the 1988 attempted murder conviction. The State also introduced evidence under the second method of proving prior convictions. Hall testified that, in the case he prosecuted, appellant pleaded true to the enhancement paragraph alleging the 1988 attempted murder conviction. At trial, the prosecutor in the instant case argued that appellant’s pleading of true to the same enhancement language in an earlier court proceeding was admissible as an admission by a party opponent. See Tex. R. Evid. 801 (e)(2)(a). On appeal, the State contends that appellant’s prior plea of true to the same prior conviction is strong circumstantial evidence of identity. Evidence of identity can be proved by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). As evidence of the fourth method to prove prior convictions, the State offered a copy of the indictment in the prior kidnapping case, which included the enhancement language and the docket sheet. The State also introduced a pen packet showing that a “Matthew Wayne Tomlinson” was convicted of attempted murder in the 23rd District Court of Brazoria County, Texas, cause number 18455. The packet contained certified copies of the judgment, sentence, and fingerprints, as well as, appellant’s photograph and identifiers such as height, weight, hair and eye color, complexion, and the presence of scars on his forehead and right knee. We hold that the evidence is legally and factually sufficient to support the trial court’s finding that appellant was the same person convicted of the 1988 attempted murder offense alleged in the enhancement paragraph. See Littles, 726 S.W.2d at 31-32; see also Dorsett v. State, 396 S.W.2d 115, 116 (Tex. Crim. App. 1965); Spaulding v. State, 896 S.W.2d 587, 591 (Tex. App.—Houston [1st Dist.] 1995, no pet.). Moreover, the trial court had the opportunity to observe appellant in court and determine by comparison with the photograph and description in the penitentiary packet whether he was the same person previously convicted. Dorsett, 396 S.W.2d at 116 (holding similar proof sufficient where the jury has the opportunity to observe accused and determine by comparison with the description in the record whether he is the same person previously convicted). We overrule appellant’s second point of error. Extraneous Acts In his third point of error, appellant complains that the trial court committed reversible error by admitting extraneous offense evidence purporting to show that he committed another aggravated kidnapping upon a different complainant. The State argues that appellant failed to preserve error on this issue because he did not object to the same evidence when it was introduced through questioning of the complainant by his defense counsel. We agree that error has not been preserved. To preserve error, the complaining party must raise the issue in the trial court by a timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a)(1). Here, appellant failed to timely and specifically object to the evidence of the prior kidnapping case the first time it was mentioned during his voir dire questioning of the complainant: Q: Now when did you say that this was the man that was the one that assaulted you, when did you first identify him to the police officers or to anybody? A: When they found out he raped somebody else, and it was the same car he was driving in. Appellant made no objection to the complainant’s response. Although he objected to the admission of testimony regarding the aggravated kidnapping offense later during the trial, he did not preserve error because he did not object the first time this information was introduced. A party must object each time inadmissible evidence is offered in order to preserve error. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Because appellant failed to make an objection each time the evidence was offered, he waived any error. See id. We overrule appellant’s third point of error. Ineffective Assistance of Counsel In his fourth point of error, appellant contends that he received ineffective assistance of counsel because his trial counsel failed to order extraction of blood or saliva samples from him so that valid exculpatory DNA testing and comparisons could be conducted. We disagree. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for counsel’s error, the result of the proceedings would have been different. Id. at 687-88, 104 S. Ct. at 2064-65; see also Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Effective assistance of counsel does not mean errorless counsel. See Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). It is the appellant’s burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. There is a strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. Id. 466 at 689, 104 S. Ct. at 2065. To prevail on an ineffective assistance of counsel claim, appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). In the absence of a record reference concerning counsel’s reasoning, we must generally presume that appellant’s trial counsel had a plausible reason for his actions. Thompson, 9 S.W.3d at 814. Here, the record reveals that, during the trial, appellant’s trial counsel requested that an expert examine a “spoiled rape kit” to determine if the samples contained therein could still be examined. The court granted the motion, and the expert report indicated that sperm was not found in the samples. Trial counsel could have concluded that any further testing would have been futile. Accordingly, we find that appellant has not overcome his burden of showing that his trial counsel’s performance fell below the standards of professional norms. Id. We overrule appellant’s fourth point of error. Conclusion We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Jennings, Hanks, and Higley. Do not publish. Tex. R. App. P. 47.4.