Donald Oreste Royale v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00170-CR ______________________________ DONALD ORESTE ROYALE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court No. 17,215 Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION On September 12, 1994, Donald Oreste Royale pled guilty to the offense of aggravated robbery in Hunt County cause number 17,215. The record before us indicates Royale committed the offense on June 16, 1992. At that time, as remains true today, aggravated robbery was a first-degree felony. (1) Having previously admonished Royale about the punishment range applicable in this case (five to ninety-nine years, or life), see Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003), the trial court accepted Royale's plea and deferred a finding of guilt, placing Royale on community supervision for a period of ten years, provided and conditioned that, among other things, he abstain from the use of illicit or habit-forming drugs unless the drug was prescribed by a licensed physician for legitimate medical purposes. On May 2, 2002, the State filed a motion to adjudicate Royale's guilt. The State alleged Royale violated the terms of his community supervision by using amphetamines on March 27, 2002, April 5, 2002, and April 25, 2002. On July 29, 2002, Royale admitted using amphetamines on March 27 and April 5, 2002. The trial court accepted Royale's plea of true and ordered that a presentence investigation (PSI) report be completed. The trial court continued the case for sentencing pending completion of the PSI report. On September 4, 2003, the trial court heard testimony from Royale's community supervision officer and from witnesses on Royale's behalf regarding the issue of disposition. At the conclusion of the disposition hearing, the trial court formally adjudicated Royale's guilt, found Royale had previously and finally been convicted of a felony, and sentenced Royale to twenty-five years' incarceration. On January 23, 2003, Royale's appellate counsel filed an Anders (2) brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal. Also as required by Anders, he filed a motion to withdraw. Counsel sent Royale a copy of the appellate brief and informed Royale of his right to file a pro se response. On February 21, 2003, Royale filed with this Court a timely pro se response brief. Therein, Royale contends (1) the original judgment granting deferred community supervision is void, (2) the trial court failed to consider mitigating evidence, and (3) he received ineffective assistance of counsel. Royale first claims the 1994 judgment is void for want of jurisdiction. His claim hinges on his belief that a trial court may not grant community supervision for an aggravated felony offense. In a case where the defendant is convicted of an aggravated felony offense as defined by Article 42.12, Section 3g of the Texas Code of Criminal Procedure, the trial court may not grant "regular or straight" (adjudicated) community supervision to that individual. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (Vernon Supp. 2003). A trial court may, however, find the evidence substantiates the defendant's guilt and defer a finding of guilt and place the defendant on community supervision for a term of years. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon Supp. 2003). Royale cites Heath v. State, 817 S.W.2d 335 (Tex. Crim. App. 1991), for the proposition that the original judgment was void. The trial court in Heath had granted the defendant community supervision after entering a finding of guilt. Id. at 336. The Texas Court of Criminal Appeals held the trial court was without jurisdiction to grant community supervision pursuant to a plea agreement after it had entered a finding of guilt; accordingly, the underlying judgment was void. Id. As explained above, however, the facts from Heath are not present in the case before us. The trial court did not enter a formal finding of guilt before placing Royale on community supervision, but instead deferred that finding conditioned and provided that Royale successfully complete the ten-year period of community supervision. The Legislature has expressly provided for such a mechanism, and the trial court was clearly authorized to place Royale on deferred community supervision under the facts of this case. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5. The original judgment placing Royale on community supervision is not void for want of jurisdiction. In his second point of error, Royale contends the trial court failed to consider evidence of his bipolar diagnosis in sentencing him. Royale believes the trial court should have returned him to the Substance Abuse Felony Program (3) rather than sending him to prison. From the record before us, we find no evidence that shows the trial court failed to consider and give weight to the evidence offered in mitigation of punishment. Nor has Royale cited any comparisons or authority for his second point of error. Cf. Phillips v. State, 887 S.W.2d 267, 270-71 (Tex. App.-Beaumont 1994, pet. ref'd) (record does not show trial court failed to consider mitigation evidence and contains no evidence of arbitrary sentencing by trial court based on comparative sentences in other courts for similar offense). Additionally, Royale's community supervision officer testified that Royale showed little promise of successfully being rehabilitated from his chemical dependency in the remaining two years of his community supervision. Based on the record before us, we overrule Royale's second point of error. In his third point of error, Royale contends he received ineffective assistance of counsel at trial because his trial counsel failed to realize the underlying judgment granting community supervision was void for want of jurisdiction. The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his or her defense. Id.; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. As explained above, Royale's underlying premise-that the original judgment granting deferred community supervision or want of jurisdiction-is without merit. The Legislature has expressly authorized trial courts to grant deferred community supervision to defendants charged with an Article 42.12, Section 3g offense. Tex. Code Crim. Proc. Ann. art. 42.12, § 5. It is only once those defendants are formally found guilty of committing such an offense that they become ineligible for judge-granted community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g. Because no formal finding of guilt had been entered on the underlying charge at the time the trial court placed Royale on community supervision, the trial court acted within its authority and jurisdiction. It therefore cannot be said Royale received ineffective assistance of counsel because his trial counsel did not object to the valid original grant of (deferred) community supervision. We overrule Royale's final point of error. We affirm the trial court's judgment. Josh R. Morriss, III Chief Justice Date Submitted: May 20, 2003 Date Decided: June 6, 2003 Do Not Publish 1. Tex. Pen. Code Ann. § 29.03(b) (Vernon 2003); and Act of May 24, 1973, 63rd Leg., R.S., ch. 399, § 29.03, 1973 Tex. Gen. Laws 883, 926, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 357, § 2, 1989 Tex. Gen. Laws 1441, 1442. 2. Anders v. California, 386 U.S. 738 (1967) 3. See Tex. Code Crim. Proc. Ann. art. 42.12, § 14 (Vernon Supp. 2003). leg brace was actually visible before the jury. Thus, there is no indication of an offense to the dignity and decorum of the courtroom proceedings. As a result, absent any evidence the jury actually saw the leg brace, we conclude, beyond a reasonable doubt, that Hawkins did not suffer harm. (2) The final factor is whether we should reverse this case to assure this error will not be repeated. Our judicial system rests on our trial courts' timely and correct application of the law; not merely the correction of errors by superior courts. Since this is not the first time this issue has been raised from the same trial court, we had concern that this practice had become a routine in that court. It is now represented to us that the procedures in that court have been formally changed in order to comply with the constitutional requirements on this issue. With that assurance, we find it is unnecessary to reverse this case on the basis that an affirmance would lead to a repetition of the error. We find the error in this instance to be harmless. We overrule the contention of error. II. Improper Expert Testimony Hawkins next contends that the trial court erred by allowing police officer Mark Sillivan to testify over objection that wounds on the arms of the victim were consistent with him raising his arms in a defensive manner. Sillivan had been qualified as an expert in the area of crime scene investigation. On the night of the murder, Sillivan observed and made photographs of the wounds found on the victim's body. On appeal, Hawkins argues that the testimony was speculative and outside the scope of Sillivan's expertise pursuant to Rule 702 of the Texas Rules of Evidence. See Tex. R. Evid. 702. We review a trial court's decision to admit or exclude evidence for abuse of discretion. Alvarado v. State, 912 S.W.2d 199, 216 (Tex. Crim. App. 1995); Darling v. State, No. 06-06-00150-CR, 2008 WL 3367553, at *3 (Tex. App.--Texarkana Aug. 13, 2008, pet. filed). In this case, Sillivan was properly qualified as a forensic and fingerprint expert in reviewing crime scenes. Although the State suggests that his qualifications are sufficient to justify his testimony regarding the physical aspects of injuries sustained during the course of a crime, our review of his qualifications does not reveal special credentials to speak as an expert about wound patterns. But in proper instances, lay witnesses may express opinion testimony. Tex. R. Evid. 701. Lay witnesses may testify to their opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Id. A distinct line cannot be drawn between lay opinion and expert testimony because all perceptions are evaluated based on experiences. However, as a general rule, observations which do not require significant expertise to interpret and which are not based on a scientific theory can be admitted as lay opinions if the requirements of Rule 701 are met. This is true even when the witness has experience or training. Additionally, even events not normally encountered by most people in everyday life do not necessarily require the testimony of an expert. The personal experience and knowledge of a lay witness may establish that he or she is capable, without qualification as an expert, of expressing an opinion on a subject outside the realm of common knowledge. United States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989). It is only when the fact-finder may not fully understand the evidence or be able to determine the fact in issue without the assistance of someone with specialized knowledge that a witness must be qualified as an expert. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). Here, the evidence established that Sillivan was a trained investigator of crime scenes. His training included latent fingerprint examination, forensic aspects of death investigation, sketching, and the handling of evidence. He further testified that he has observed other instances of defensive wounds during his career. His testimony was that the wounds on the victim were consistent with other defensive wounds he had observed. We find this observation did not require significant expertise to interpret, did not rely on a scientific theory, and was admissible under Rule 701 as lay opinion testimony even though Sillivan had some technical training. See id. Courts have admitted a variety of opinion evidence from peace officers and lay persons when the evidence meets the requirements of Rule 701. See Hollis v. State, 219 S.W.3d 446 (Tex. App.--Austin 2007, no pet.) (testimony of peace officer that defendant had blisters and discolorations on his hands indicating methampethamine exposure); Williams v. State, 191 S.W.3d 242 (Tex. App.--Austin 2006, no pet.) (officer with some training allowed to give lay opinion that defendant did not exhibit signs of one with mental health issue); In re J.C., 892 S.W.2d 87 (Tex. App.--El Paso 1995, no pet.) (testimony of lay person that bruises appeared to be one day old admissible since witness had recent personal experience with bruising). The trial court did not abuse its discretion in allowing this testimony. Even if this evidence had been inadmissible, it did not constitute reversible error. In our review of nonconstitutional error, we are to disregard errors, defects, irregularities, or variances that do not affect substantial rights of the accused. Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); see Tex. R. App. P. 44.2(b). If, on the record as a whole, it appears the error "did not influence the jury, or had but a slight effect," we must conclude that the error was not harmful and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Those wounds had previously been discussed in detail by the pathologist who had performed the autopsy of the victim's body. She testified to the existence of two very small and very superficial lacerations on the victim's left forearm. In response to questions propounded by the State, she testified that the wounds could be considered defensive based on their location, but one could not be sure. Thus, we have a qualified expert testifying that the lacerations were in the proper location, and might have been defensive wounds, and a police officer testifying similarly that they were consistent with defensive wounds. Under this state of the record, we do not find that the admission of testimony by the officer that was very similar to the pathologist's testimony was such as would affect a "substantial right" of the defendant, i.e., one that had a substantial and injurious effect or influence on the jury when reaching its verdict. See King, 953 S.W.2d at 271; see also Tex. R. App. P. 44.2(b). We affirm the judgment. Jack Carter Justice Date Submitted: December 23, 2008 Date Decided: January 7, 2009 Do Not Publish 1. We most recently addressed this issue in Austin v. State, No. 06-07-00161-CR, 2008 Tex. App. LEXIS 8630 (Tex. App.--Texarkana Nov. 18, 2008, no pet. h.) (mem. op., not designated for publication). 2. We again point out to the trial bench that this is a risky practice. If there is evidence that a jury saw the restraints, it very well might cause the jurors to conclude the defendant was dangerous and guilty, which in all likelihood would require a reversal of the conviction, unless the situation involved the "rare" case where a necessity for restraint existed and the trial court specified such reasons in the record.