Karl L. Dahlstrom v. Brazos County

Dahlstrom v. Brazos County IN THE TENTH COURT OF APPEALS No. 10-97-004-CV      KARL L. DAHLSTROM, ET AL.,                                                                                               Appellants      v.      BRAZOS COUNTY, ET AL.,                                                                                               Appellees From the 361st District Court Brazos County, Texas Trial Court # 43,470-361                                                                                                     MEMORANDUM OPINION                                                                                                           In a petition filed May 3, 1996, Brazos County and the City of Bryan sued Karl Dahlstrom for $3,146.23 in delinquent "taxes, penalties, and interest" that Dahlstrom allegedly owed for real property he owns in Brazos County. The Bryan Independent School District and the Brazos County Education District were impleaded in the lawsuit so that they could assert their claims, if any, to the monies Dahlstrom allegedly owed. On June 5, the Bryan Independent School District and the "Successor in Interest to the Brazos County Independent School District" filed an original plea in intervention and a cross-claim, contending that Dahlstrom owed them $6,958.64 in taxes, penalties, interest, and attorneys' fees from the property at issue. On August 8, the United States of America filed an answer to the original petition, admitting as was alleged that it possessed a tax lien on Dahlstrom's Brazos County property.       On November 8, 1996, the trial court signed a default judgment in the amount of $13,282.04 in favor of Brazos County, the City of Bryan, the Bryan Independent School District, and the Brazos County Education District. On December 6 Dahlstrom filed a pro se notice of appeal.       Perfection of an appeal is required to invoke our jurisdiction. Welch v. McDougal, 876 S.W.2d 218, 220-22 (Tex. App.—Amarillo 1994, writ denied); El Paso Sharky's Billiard Parlor, Inc. v. Amparan, 831 S.W.2d 3, 5 (Tex. App.—El Paso 1992, writ denied). Because Dahlstrom is not exempt from paying the costs on appeal, he is required to file either a cost bond, a cash deposit, or an affidavit of inability to pay costs to perfect this appeal. Tex. Civ. Prac. & Rem. Code Ann. §§ 6.01-6.03 (Vernon 1986 & Supp. 1997); Tex. R. App. P. 40(a)(1), (a)(3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App.—Corpus Christi 1990, no writ). A notice of appeal generally is not a proper instrument by which one may perfect an appeal. See id.       On January 2, 1997, we notified Dahlstrom by letter that his appeal did not appear to be properly perfected and that he would have fifteen days to show sufficient grounds for continuing the appeal. In a letter postmarked January 23, 1997, Dahlstrom enclosed what apparently is a photocopy of a receipt from the Brazos County District Clerk issued to Dahlstrom to represent that he paid a $1,000 cash deposit in lieu of appeal bond on January 23, 1997. On January 29 we informed Dahlstrom that his letter was insufficient to demonstrate that his appeal had been timely perfected. We have received no further correspondence from him.       Rule of Appellate Procedure 41(a)(1) provides, in relevant part, "When security for costs on appeal is required, the bond or affidavit in lieu thereof shall be filed with the clerk within thirty days after the judgment is signed, or, within ninety days after the judgment is signed if a timely motion for new trial has been filed by any party[.]" Tex. R. App. P. 41(a)(1). There is no indication in the record tendered to this court that Dahlstrom filed a motion for new trial or any other instrument that might have extended the appellate timetable. Dahlstrom's perfection instrument, pursuant to Rule 41(a)(1), was thus due on December 9, 1996.       We doubt whether we could consider the January 23, 1997, receipt that allegedly demonstrates that Dahlstrom paid a cash deposit in lieu of bond on that date. See Tex. R. App. P. 51(a) (indicating that the perfection instrument should be contained in the transcript). Nevertheless, assuming that we could consider the January 23 receipt, Dahlstrom's cash deposit in lieu of bond was filed over six weeks too late. Therefore, Dahlstrom's January 23 correspondence fails to demonstrate that his appeal was properly perfected. See id.; Davies v. Massey, 561 S.W.2d 799, 800 (Tex. 1978); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App.—El Paso 1992, writ denied); McDonald v. Newmyer, 775 S.W.2d 652, 653 (Tex. App.—Houston [1st Dist.] 1989, writ denied).       Dahlstrom's notice of appeal filed on December 6 was filed within the thirty-day perfection period. As indicated above, however, a notice of appeal is an ineffective perfection instrument. But, because Dahlstrom's notice of appeal was a bona fide effort to invoke our jurisdiction, we have jurisdiction to allow him the opportunity to properly perfect his appeal. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). In our January 2 letter correspondence with Dahlstrom we informed him that his appeal did not appear to be perfected. See Tex. R. App. P. 60(a)(2). Apparently in response to this letter, Dahlstrom attempted to perfect his appeal by filing a cash deposit in lieu of bond on January 23.       Dahlstrom's efforts, however, were untimely. In our January 2 letter, we allowed him fifteen days to amend the record. Dahlstrom did not mail proof of his cash deposit in lieu of bond, again assuming that we could consider the January 23 receipt from the Brazos County District Clerk, until January 23, twenty-one days after our letter was sent. See Tex. R. Civ. P. 5.       We notified Dahlstrom that the transcript did not demonstrate that his appeal had been duly perfected. Tex. R. App. P. 56(a), 60(a)(2). Even though given the opportunity to cure the defect, he has failed to properly perfect this appeal. Id. 40(a)(1), 83. Thus, the transcript does not show that this court has jurisdiction and "after notice it [has] not [been] amended." Id. 56(a).       Therefore, we dismiss this cause for want of jurisdiction. Id.                                                                                 PER CURIAM Before Chief Justice Davis,       Justice Cummings and       Justice Vance Dismissed for want of jurisdiction Opinion delivered and filed February 26, 1997 Do not publish e:EN-US;mso-bidi-language:AR-SA'>[3] and without knowing Loredo’s counsel’s punishment-phase strategy. We must adhere to the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was so inadequate as to violate a defendant's Sixth Amendment right to counsel.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The Strickland test applies to the punishment phase of a noncapital case. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). Strickland requires a defendant to show that: (1) counsel's representation fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudiced the defendant.  Roe v. Flores-Ortega, 528 U.S. 470, 476-77, 120 S.Ct. 1029, 1034, 145 L.Ed.2d 985 (2000); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The assessment of whether a defendant received ineffective assistance of counsel must be made according to the facts of each case.  Thompson, 9 S.W.3d at 813.  The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. A single error can be so substantial that it causes the attorney’s assistance to fall below the Sixth Amendment standard. Id. Entitled to Notice Because Loredo is arguing that his counsel was deficient in failing to request notice of the State’s intent to use extraneous bad acts, we first ask whether he was entitled to the notice. Jaubert v. State, 74 S.W.3d 1, 2 (Tex. Crim. App.), cert. denied, 537 U.S. 1005 (2002). Because the State offered the evidence of extraneous bad acts in its case-in-chief in the punishment phase, not during cross-examination or rebuttal, Loredo was entitled to notice of these acts. Id. at 4. Objective Standard of Reasonableness When reviewing a claim of ineffective assistance of counsel under the first prong of Strickland, there is a strong presumption that defense counsel's conduct was reasonable and constituted sound trial strategy.  Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. We evaluate the totality of the representation from counsel's perspective at trial, rather than counsel's isolated acts or omissions in hindsight.  Gutierrez v. State, 8 S.W.3d 739, 749 (Tex. App.—Austin 1999, no pet.).  Appellant has the ultimate burden to overcome this presumption and demonstrate not only that counsel's performance was unreasonable under the prevailing professional norms, but that the challenged action was not sound trial strategy.  Id. We have previously held that there could be no strategic basis for not requesting notice under article 37.07 section 3(g). Jaubert v. State, 65 S.W.3d 73, 81-82 (Tex. App.—Waco 2000), rev’d on other grounds by 74 S.W.3d 1 (Tex. Crim. App.), cert. denied, 537 U.S. 1005 (2002).[4] “The purpose of article 37.07 § 3(g) is to avoid unfair surprise, that is trial by ambush.” Chimney v. State, 6 S.W.3d 681, 697 (Tex. App.—Waco 1999, no pet.). “[T]he purpose is to allow the defendant adequate time to prepare for the State’s introduction of the [evidence] at trial.” Id. at 693-94. Because Loredo’s counsel should not want to be ambushed with extraneous bad acts introduced by the State at the punishment hearing, we find this failure to request notice unreasonable and not justifiable by sound trial strategy. See Ex Parte Menchaca, 854 S.W.2d 128, 129 (Tex. Crim. App. 1993) (finding counsel was ineffective in failing to file a motion in limine to prohibit the introduction of a prior rape conviction in a trial for delivery of a controlled substance); see also Autry v. State, 27 S.W.3d 177, 182 (Tex. App.—San Antonio 2000, pet. ref’d) (“[P]urposefully deciding not to request disclosure by the State of its intent to introduce evidence of extraneous offenses may amount to questionable trial strategy . . .”). Loredo has met his burden to show that his counsel’s representation fell below an “objective standard of reasonableness.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Jaubert, 65 S.W.3d at 82-83. Prejudice The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Mallet v. State, 9 S.W.3d 856, 866 (Tex. App.—Fort Worth 2000, no pet.). The appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.  A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., at 669, at 2056. During the State’s case-in-chief in the punishment phase, the State introduced testimony of eight witnesses. Three were law enforcement officers who testified they were familiar with Loredo’s bad reputation with regard to being peaceful and law-abiding. Another witness, Melissa Pick, the mother of two of Loredo’s children, testified that Appellant was not peaceful and law-abiding. She testified that Loredo is a drug user. She described one incident where he stole money from her for drugs and she confronted him, which lead to a fight with him “pushing and slinging” her and then he held a knife to her throat and threatened to kill her. She also testified that he punched her in the eye during labor with their second child. She testified that he threw his dad over the dining room table after one of their fights. She explained an incident where he punched her in the eye one night and that she reported to the police. Finally, she stated she left him because of his violence and he no longer visited his children.  The police officer, who took the report from Melissa about being punched in the eye, testified consistently with Melissa’s testimony. Sabrina, the mother of Loredo’s third child, also testified that Loredo was not peaceful or law-abiding. She testified that Loredo was a drug user. Sabrina described an incident where Loredo punched her in the face and attempted to choke her when she was eight months pregnant. She testified about another incident where Loredo pointed an AK-47 at her head while she was holding their son and then started shooting the gun all around the room and then punched her in the face. She also testified that Loredo grabbed her by the neck and hair at a dance and police officers had to get Loredo off of her. Two detectives testified about this incident at the dance and stated that they arrested Loredo for assault that night. Additionally, Sabrina described an assault on her and a sexual assault on Sally (a friend of theirs) one evening when they were partying. She stated that she eventually left him. On cross-examination, Appellant’s counsel did not ask any questions to four of the State’s witnesses and asked a few questions to the other State’s witnesses. During rebuttal, Appellant’s counsel called Sally, and she testified that Loredo did not sexually assault her. Loredo’s counsel also called Loredo’s mother who testified that Loredo did not own an AK-47, and Loredo did not throw his father (her husband) across a dining room table. She also testified that Sabrina would have reason to lie because she resented Loredo for having sole possession of their son for an extensive period of time after she left him. During rebuttal by the State, an officer testified that he responded to the call where Loredo allegedly assaulted Sabrina and sexually assaulted Sally. He testified consistently with the description provided by Sabrina. On further rebuttal, Appellant’s counsel called Alicia (a friend who was present the night of the assaults), and she testified that Sabrina and Loredo were consuming cocaine that night and Loredo did not try to “mess with” Sally. Alicia stated that she did not speak to the police that night regarding what had happened. The State then recalled the officer who responded the night of the alleged sexual assault and testified that Alicia did tell him that Loredo wanted to f___ Sally and had been trying to get her all day, which he documented in his report. After hearing this testimony, the jury assessed punishment at 30 years’ imprisonment and no fine for each of the three counts. The maximum punishment for each count was life imprisonment and a $10,000.00 fine. Our review of the punishment phase of the trial shows that Loredo’s counsel appeared to have been prepared to rebut the State’s evidence of the extraneous bad acts based on his immediate rebuttal with Sally and Loredo’s mother and later rebuttal with Alicia. Loredo’s counsel did not seem surprised by any of the State’s witnesses. There is nothing in the record to indicate and Loredo does not argue that his counsel would have taken different steps to rebut or object to the State’s evidence had he received written notice of these extraneous bad acts. See Autry v. State, 27 S.W.3d 177, 182 (Tex. App.—San Antonio 2000, pet. ref’d) (“[Appellant] has not stated what steps he would have taken if he had received written notice of the State's intent to introduce extraneous evidence.”). There is also nothing in the record to indicate that the jury might have assessed less than 30 years for each count—based on the record, it is not reasonably probable that Loredo’s sentence would have been any less. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Therefore, we do not find that counsel’s error was so serious that it deprived Loredo of a fair trial. Id., at 687, at 2064. This error was not of a magnitude significant enough to render Loredo’s counsel ineffective. Thompson, 9 S.W.3d at 813. We overrule issue one. UNCONSTITUTIONALITY OF TEXAS CODE OF CRIMINAL PROCEDURE ART. 42.08(A)  Loredo argues that article 42.08(a) violates the constitutional delegation doctrine (principle of separation of powers) because there are not sufficient or adequate guidelines for the trial court’s exercise of its discretion in determining whether the sentences should be cumulated or run concurrently. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2004-2005). Appellant properly preserved this issue in his motion for new trial. Tex. R. App. P. 33.1(a)(1). When reviewing an attack on the constitutionality of a statute, the appellate court begins with a presumption that the statute is valid and the Legislature has not acted unreasonably or arbitrarily. Luquis v. State, 72 S.W.3d 355, 365 n.25 (Tex. Crim. App. 2002). This presumption stands until the contrary is shown beyond a reasonable doubt. Williams v. State, 514 S.W.2d 772, 773 (Tex. Civ. App.—Beaumont 1974, writ ref’d n.r.e.) (citing Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946)). The burden is on the party challenging the statute to establish its unconstitutionality. Ex parte Ports, 21 S.W.3d 444, 446 (Tex. App.—San Antonio 2000, pet. ref’d). Loredo acknowledges that the Court of Criminal Appeals has ruled that this statute is not an unconstitutional delegation of authority. See Johnson v. State, 492 S.W.2d 505, 506 (Tex. Crim. App. 1973); Hammond v. State, 465 S.W.2d 748, 752 (Tex. Crim. App. 1971). But he argues that Johnson has been impliedly overruled by Ex parte Granviel, 561 S.W.2d 503 (Tex. Crim. App. 1978) (en banc) (regarding the constitutionality of Tex. Code Crim. Proc. Ann. art. 43.14 (1977)), and In re Johnson, 554 S.W.2d 775, 780-81 (Tex. Civ. App.—Corpus Christi 1977), writ ref’d n.r.e. per curiam, 569 S.W.2d 882 (Tex. 1978) (regarding the constitutionality of Tex. Rev. Civ. Stat. Ann. art. 2324 (1976)). Neither Ex parte Granviel or In re Johnson deal with the constitutionality of article 42.08; therefore we disagree with Loredo that Johnson and Hammond have been impliedly overruled. Since there has been no change in article 42.08 that is material to this appeal since Johnson and Hammond were decided, we are bound by the Court of Criminal Appeals' holdings regarding its constitutionality. We overrule issue two. CONCLUSION We overrule both of Loredo’s issues. Therefore, we affirm the judgment.  BILL VANCE                                                                   Justice  Before Chief Justice Gray,          Justice Vance, and          Justice Reyna          (Chief Justice Gray concurring) Affirmed Opinion delivered and filed December 8, 2004 Publish [CRPM]    [1]          The remaining two issues were not decided.    [2]      Section 3(a) of article 37.07 permits the court to admit evidence at punishment of extraneous offenses or bad acts. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon Supp 2004-2005). However, through section 3(g), a defendant can discover if the State intends to offer this type of evidence. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(g) (Vernon Supp. 2004-2005).     [3]      We reject this argument because an “open file” policy cannot substitute for an article 37.07 section 3(g) request. See Jaubert v. State, 65 S.W.3d 73, 81-82 (Tex. App.—Waco 2000), rev’d on other grounds by 74 S.W.3d 1 (Tex. Crim. App.), cert. denied, 537 U.S. 1005 (2002) (finding the difference between “open file” policy and the notice request under article 37.07 section 3(g) is that under article 37.07 section 3(g), there is a continuing duty on the State to notify defendant of all extraneous offense evidence it intends to introduce).    [4]      The Texas Court of Criminal Appeals reversed our Jaubert decision finding ineffective assistance of counsel because the extraneous offenses were only presented in cross-examination/rebuttal, not in the State’s case-in-chief. Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002). Here, the State introduced the extraneous offenses in its case-in-chief.