Dennis James Poledore, Jr. v. State

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB Opinion Issued June 19, 2008 In The Court of Appeals For The First District of Texas NOS. 01-06-00948-CR 01-06-00998-CR 01-06-00999-CR DENNIS JAMES POLEDORE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Cause Nos. 42537B, 42538B, 42527B MEMORANDUM OPINION Appellant, Dennis James Poledore, pleaded not guilty to three separate offenses of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02 (Vernon 2006). The jury found Smith guilty of each offense, and upon finding true two enhancements included in the indictments, the trial court sentenced Poledore to sixty years’ confinement in each case. In three issues, Poledore contends the trial court erred in (1) consolidating the three cases together into one trial; (2) denying his request to charge the jury on a lesser-included offense; and (3) admitting State’s exhibit eleven. He further contends that his counsel rendered constitutionally ineffective assistance. We affirm. Background In February 2004, Poledore was doing carpentry work on the house next door to Brenda James. Poledore and Brenda developed a friendship, which evolved into a romantic relationship. In October 2004, Poledore was in an automobile accident, and Brenda recommended that he see her son, Derrill James, who is a chiropractor. During the course of his treatment, the insurance company mistakenly sent Poledore a check as payment of medical treatment that was supposed to have been sent to Derrill. Derrill contacted Poledore several times in an effort to receive payment to no avail. Around April 2005, Brenda ended her relationship with Poledore. On June 24, 2005, Poledore telephoned Derrill’s office to tell them that he was ready to pay the money. Poledore and Derrill arranged to meet at Brenda’s house that afternoon. When Poledore arrived at Brenda’s house, he followed her into the kitchen where Derrill was waiting. At that point, he withdrew a gun from underneath his clothes, pointed it at Derrill’s head, and cocked it. Brenda began begging Poledore not to do this. Derrill’s wife, Likeysha, heard the commotion and came in from the back bedroom. When Likeysha tried to run away, Poledore threatened to kill Derrill if she did not return. Once Likeysha returned, Poledore made them all lie down on the floor, and he continued to threaten them. He then duct-taped their arms and legs. Poledore threatened to kill them if they called the police. Eventually, he decided to let them go, and cut the duct-tape off Likeysha and Derrill. He told them to wait five minutes before leaving, so that he could get away. After Likeysha and Derrill helped free Brenda, they left to pick up Derrill and Likeysha’s son from daycare. They did not immediately call the police because of a disagreement over whether to contact them. Brenda and Likeysha were afraid to report the assault but Derrill thought they should. They stopped by two constable’s offices on their way back from the daycare center but both were closed. They then went to Brenda’s older son’s house in Richmond and phoned the police. The Richmond police informed them that they had to return to the scene of the crime and call the police from there, which they did. At trial, both Brenda and Derrill identified Poledore as the assailant. In his defense, Poledore presented two witnesses who testified to seeing him on the day of the assault at approximately the same time that Brenda, Derrill, and Likeysha testified it took place. Poledore did not testify. Consolidation of Cases In his first issue, Poledore contends that the trial court erred in trying the offenses together in a single trial. He asserts that the State failed to give the required thirty days’ notice of the consolidated actions. See Tex. Pen. Code Ann. § 3.02(b). The State may prosecute a defendant in a single criminal action for all offenses arising out of the same criminal episode. Id. § 3.02(a). When the State elects to consolidate prosecution of multiple offenses, “the defendant shall have a right to a severance of the offenses.” Tex. Pen. Code Ann. § 3.04; Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997). A trial court’s failure to sever despite a defendant’s objection to joinder of cases is reversible error. See Warmowski v. State, 853 S.W.2d 575, 578 (Tex. Crim. App. 1993). The mandatory language of the Penal Code invests absolute discretion in the defendant to make the decision. Id. Poledore construes section 3.04 to mean that “a trial court has no right to consolidate indictments in absence of agreement by the Defendant.” An indictment, however, may be consolidated into a single proceeding with the express or implied (by failure to object) consent of the defendant. Cervantes v. State, 815 S.W.2d 569, 571 (Tex. Crim. App. 1991). Here, Poledore failed to object to consolidation of the indictments and, thus, he impliedly consented. Poledore asserts that he objected to consolidation of the offenses when he filed his special plea of double jeopardy, in which he objected to the enhancement paragraphs of the new indictments. He relies on Rice v. State to support his contention that an objection on double jeopardy grounds is sufficient to apprise the trial court of the nature of his complaint and to require severance of the offenses. In Rice, the appellant was convicted of aggravated robbery and attempted capital murder. See Rice v. State, 646 S.W.2d 633 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d). He contended on appeal that the court erred in consolidating the two cases. Id. at 634. Before entering his pleas of no contest, Rice objected to the consolidation of the cases, stating that he objected to the order “in which she granted State’s motion to consolidate those procedures as being a violation of his rights under double jeopardy.” Id. This court held that Rice’s objection was sufficient to apprise the trial court of the nature of his complaint because it stated an objection to consolidation; it referred to the trial court’s order; and it bore the cause numbers of both cases. Id. at 635. Unlike the appellant in Rice, Poledore, in his special plea, did not object to consolidation of the cases in any form. He pleaded a violation of double jeopardy based only upon the enhancement paragraphs included in the re-indictments, and not based upon consolidation of the offenses. In addition, Poledore’s special plea stated that the offenses “were consolidated pursuant to the Prosecution’s request,” and did not follow with any objection to that. The trial court was therefore not apprised that Poledore objected to consolidation of the offenses, and thus Poledore waived any complaint by failing to object before trial. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). Jury Charge In his second issue, Poledore contends that the trial court erred in denying his request for a jury charge instruction on the lesser-included offense of deadly conduct. See Tex. Penal Code Ann. § 22.05 (Vernon 2006). “When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal.” Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994). We use a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser-included offense. See Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). The first step is to determine whether an offense is a lesser-included offense of the alleged offense. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007); Salinas, 163 S.W.3d at 741. This determination is a question of law and does not depend on the evidence to be produced at the trial. Hall, 225 S.W.3d at 535. An offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006). When the greater offense may be committed in more than one manner, the manner alleged will determine the availability of lesser-included offenses. Hall, 225 S.W.3d at 531. The second step is to determine if there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater. Id. at 536; Salinas, 163 S.W.3d at 741; Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a charge on the lesser offense. Hall, 225 S.W.3d at 536. “[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). We review all evidence presented at trial to make this determination. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). If the evidence raises the issue of a lesser-included offense, a jury charge must be given based on that evidence, “whether produced by the State or the defendant and whether it be strong, weak, unimpeached, or contradicted.” Id. at 672 (quoting Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985)). Assuming deadly conduct is a lesser-included offense of aggravated assault, there is no evidence in the record to support a finding that if Poledore is guilty, he is guilty only of deadly conduct. The primary difference between aggravated assault with a deadly weapon and deadly conduct is the culpable mental state. Aggravated assault requires that the defendant (1) intentionally or knowingly threaten another, (2) with imminent bodily injury, (3) while using or exhibiting a deadly weapon. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2). In contrast, deadly conduct requires that the defendant (1) recklessly engages in conduct (2) that places another in imminent danger of serious bodily injury. See id. § 22.05(a). The deadly conduct statute further provides that “recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.” Id. § 22.05(c). Poledore contends that there was evidence from which the jury could reasonably infer that his actions were reckless. He points to the witnesses’ testimony that none of them were familiar with guns and to the fact that the State did not submit the gun into evidence. This evidence, however, does not address Poledore’s mental state, but instead addresses the weight of the evidence. Poledore also states that pointing a gun at Derrill James’s head and cocking it “constitutes a reckless act.” These actions, however, support a finding of intentional or knowing conduct, rather than recklessness. Cocking a gun and holding it to a person’s head are intentional acts. Poledore did not present any evidence that suggested that he did not intend to threaten the Jameses; the evidence supports only a finding that either (1) Poledore intentionally and knowingly pointed the gun at the complainants, or (2) Poledore was not present and did not commit the offense at all. If a defendant either offers evidence that he committed no offense or presents no evidence, and there is no evidence showing he is guilty only of a lesser-included offense, then a charge on a lesser-included offense is not required. Bignall v. State, 887 S.W.2d 21, 22–24 (Tex. Crim. App. 1994). Accordingly, the trial court did not err in refusing to submit a deadly conduct charge. Exhibit 11 Poledore contends that the trial court erred in allowing the State to “enter into evidence State’s exhibit 11 at the punishment phase of the trial when the State failed to prove up that the prior felony offered for enhancement purposes was final, and when the prior felony did not have the proper affidavit of cause number conviction attached to it.” Because Poledore objects to exhibit 11 for the first time on appeal, he has waived this objection. See Tex. R. App. P. 33.1. Ineffective Assistance of Counsel In his final issue, Poledore contends that his counsel rendered constitutionally ineffective assistance. He specifically alleges that his counsel was ineffective for failing to (1) make challenges for cause during voir dire; (2) consult with Poledore before waiving arraignment; (3) object to certain testimony and evidence; (4) subpoena certain witnesses; and (5) elicit certain testimony in order to create a bill of exception. Standard of Review To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel’s performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of Strickland requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence, that his counsel’s representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires the defendant to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 693–94, 109 S. Ct. at 2067; see also Thompson, 9 S.W.3d at 812. A reviewing court should indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must also overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. “Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and lacking in tactical or strategic decision making as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Analysis The record in this case does not show any conduct outside the wide range of reasonable professional assistance. Poledore first contends that his counsel was ineffective because he failed to challenge certain jurors during voir dire and failed to strike anyone. The record belies this assertion. The defense’s strike list includes ten peremptory strikes and two strikes for cause. Poledore specifically asserts that defense counsel should have struck juror numbers 26, 37, 3, 6, and 29 for responses they provided during voir dire. Only juror number 6 actually served on the jury. The record further reflects that defense counsel struck juror 3 and 26, and the court did not reach jurors 26, 29, and 37, as juror 19 was the last juror seated. Poledore points specifically to juror number 6’s response to defense counsel’s question regarding whether it would affect him if Poledore did not testify. Juror 6 stated that it would “be a seed in the back of my mind,” but he further stated, when asked if he could be fair, “I think so. It would—still would be there.” This answer did not support a challenge for cause. Moreover, Poledore did not adduce evidence about counsel’s strategy at a motion for new trial. The record thus does not show counsel’s reasons for not striking juror number 6 or challenging him for cause. We conclude that the record does not show that counsel’s conduct during the voir dire was unreasonable trial strategy.[1] Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (without additional evidence in the record concerning trial counsel’s reasons for not challenging or striking a venire member, court unable to conclude that counsel’s performance was deficient). Poledore also alleges that his counsel amended his waiver of arraignment form without Poledore’s knowledge. The clerk’s record contains a waiver of arraignment form with the cause numbers from the modified indictment. Both defense counsel’s signature and Poledore’s signature appear on this amended form. In addition, defense counsel stated on the record that he amended the waiver to include the new indictments. Poledore was present during this exchange and did not contend that he had no knowledge of it. There is no evidence therefore that Poledore was not aware of the amendment or that counsel was ineffective for amending it. Poledore next contends that his counsel failed to make several objections during trial, including objecting to the State’s opening and closing arguments and objecting to State’s exhibits 1, 2, 8, and 9. Poledore does not support his contentions with any reasons that the evidence would have been inadmissible, and does not specifically point to the portions of opening and closing arguments that he deems objectionable. Poledore’s contentions thus do not overcome the presumption that counsel’s actions were strategic decisions. Poledore further asserts that his counsel was ineffective for failing to properly subpoena witnesses that he had intended to call during both the guilt/innocence and punishment phases. Defense counsel subpoenaed two witnesses for the guilt/innocence phase who did not appear at trial. One subpoena included the wrong trial date, but defense counsel notified her by telephone of the correct trial date. Both witnesses stated that they did not want to participate. Defense counsel requested a continuance in order to ensure his witnesses’ presence in court. The court granted a ten-minute recess so that defense counsel could attempt to reach his witnesses by phone. After the recess, defense counsel stated that he had spoken with the witnesses, and they were not going to appear. Defense counsel then withdrew his motion for continuance and proceeded with the trial. “To obtain relief on an ineffective assistance of counsel claim based on an uncalled witness, the applicant must show that [the witness] had been available to testify and that his testimony would have been of some benefit to the defense.” Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004). Poledore fails to show that any of the witnesses he contends defense counsel should have called would have benefitted his defense, and thus, his ineffective assistance claim cannot succeed on this ground. Poledore further contends that his counsel was ineffective for failing to object to State’s exhibits 10, 11, and 12 because “matters contained within these exhibits clearly made them objectionable” and if counsel “had properly objected to these enhancement exhibits, in all likelihood, the Appellant’s punishment range would have been that of a second degree felony of 2-20 years.” Poledore does not provide support for his contention that exhibits 10 and 12 are objectionable. In regard to exhibit 11, Poledore contends that it would have been inadmissible because the cause number listed in the certification did not match the cause number listed within the pen packet, and because the State did not prove that it was a final judgment. Poledore’s indictment included two enhancement paragraphs. The first stated that he was convicted of aggravated robbery in 1984. The second stated that he was convicted of aggravated robbery in 1988. State’s exhibit 11 is a pen packet for Poledore’s 1984 conviction of aggravated robbery. It includes an affidavit from the Chairman Classification and Records for the Texas Department of Criminal Justice, which states that the packet contains information relating to “Cause # 78479650TK, F8476849TK”; the documents are actually from cause number “F-84-76850-TK.” The discrepancy between the certification cause number and the cause number on the documents is a technical defect which does not render the packet inadmissible. Washington v. State, 905 S.W.2d 665, 668 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d). Furthermore, Texas Rule of Evidence 901(a) provides that the requirement of authentication “as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Tex. R. Evid. 901(a). Larry Spillers, a fingerprint expert, testified that the fingerprints on exhibit 11 matched Poledore’s fingerprints. Spillers’s comparison of the fingerprint cards corroborates the authenticity of the packet. See Reed v. State, 811 S.W.2d 582, 586 (Tex. Crim. App. 1991) (authenticity of the documents is further corroborated by testimony of State’s expert witness who stated that fingerprints from the fingerprint card in the pen packet and the fingerprints taken from appellant were made by the same individual). Thus, if Poledore’s counsel had objected on this ground, it would have been overruled. Poledore further contends that State’s exhibit 11 would have been inadmissible because the State failed to prove that it was a final conviction. The judgment in the pen packet contained the notation that “defendant excepts and gives notice of appeal to the Court of Appeals.” Nothing in the packet indicates that the conviction had been affirmed. A conviction that has been appealed is not considered final for the purpose of enhancement until the appellate court affirms the conviction and issues its mandate. Beal v. State, 91 S.W.3d 794, 794–95 (Tex. Crim. App. 2002). The State has the burden to prove the finality of a conviction that is used for enhancement. Russell v. State, 790 S.W.2d 655, 657 (Tex. Crim. App. 1990). There is no specific method by which the State must prove the finality of the prior conviction, and finality may be proved by an admission by the defendant. Flowers v. State, 220 S.W.3d 919, 921–22 (Tex. Crim. App. 2007). In this case, State’s exhibit 12 contained a pen packet from Poledore’s 1988 conviction. The judgment from that conviction stated that Poledore pleaded true to the enhancement included in the indictment which alleged that he had been previously convicted of a felony. We hold that this evidence was sufficient to establish the finality of Poledore’s prior felony conviction for the purpose of enhancement. Because Poledore’s objections to exhibit 11 would have been overruled, his counsel was not ineffective for failing to object. See Holland v. State, 761 S.W.2d 307, 318–19 (Tex. Crim. App. 1988) (holding that “counsel was under no obligation to do what would amount to a futile act”). In his final contention, Poledore asserts that his counsel was ineffective for failing to obtain Derrill’s testimony to create a bill of exception. The record contradicts Poledore’s assertion. Defense counsel moved to allow testimony from Derrill concerning alleged fraudulent insurance claims, and questioned Derrill outside the presence of the jury about it. Upon hearing the testimony, the trial court ruled that it was irrelevant and inadmissible. The record contains sufficient testimony to allow an appellate court to rule on the admissibility of this testimony if Poledore had raised this issue on appeal. Defense counsel therefore was not ineffective, as he preserved the testimony in the record. For these reasons, we overrule Poledore’s final issue. Conclusion We conclude that the trial court did not err in consolidating the three cases together into one trial or in denying his request to charge the jury on a lesser-included offense. We further conclude that Poledore waived his objection to State’s exhibit 11. In addition, we hold that Poledore’s counsel rendered constitutionally effective assistance. Accordingly, we affirm the trial court’s judgment. Jane Bland Justice Panel consists of Justices Taft, Jennings, and Bland. Do not publish. Tex. R. App. P. 47.4. [1] Poledore also contends that trial counsel failed to object to “seven to ten improper commitment questions,” but does not present any particular questions for review. Thus, he has not shown that trial counsel erred in failing to object.