Hatch, Errington Charles

PD-1169-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 10/8/2015 10:16:10 AM Accepted 10/8/2015 4:10:43 PM ABEL ACOSTA NO. PD-1169-15 CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS AT AUSTIN _________________________

ERRINGTON CHARLES HATCH, Appellant

v. October 8, 2015 THE STATE OF TEXAS, Appellee _________________________

On appeal in Cause No. F11-59284-K from the Criminal District Court No. 4 Of Dallas County, Texas And on Petition for Discretionary Review from the Fifth District of Texas at Dallas In Cause No. 05-13-01710-CR _________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _________________________

Counsel of Record:

Lynn Richardson Nanette Hendrickson Chief Public Defender Assistant Public Defender Dallas County Public Defender’s Office Katherine A. Drew State Bar Number: 24081423 Chief, Appellate Division 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-399 (214) 653-3550 (telephone) (214) 653-3539 (fax)

ATTORNEYS FOR PETITIONER/APPELLANT

LIST OF PARTIES

TRIAL COURT JUDGE Dominique Collins –Criminal District Court No. 4

APPELLANT Errington Charles Hatch

APPELLANT’S ATTORNEYS AT TRIAL Paul Brauchle, State Bar No. 02918000 4131 North Central Expressway, Ste. 680 Dallas, Texas 75204-2171

ON APPEAL Nanette R. Hendrickson, State Bar No. 24081423 Assistant Public Defender Dallas County Public Defender’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB 2 Dallas, Texas 75207-4399

STATE’S ATTORNEYS AT TRIAL George B. Lewis, II, State Bar No. 24060167 Assistant District Attorney Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399

ON APPEAL Patricia Poppoff Noble, State Bar No. 15051250 Assistant District Attorney Dallas County District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399

ii

TABLE OF CONTENTS

LIST OF PARTIES ................................................................................................... ii INDEX OF AUTHORITIES ....................................................................................iv STATEMENT REGARDING ORAL ARGUMENT ............................................... 1 STATEMENT OF THE CASE ................................................................................. 1 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 1 STATEMENT OF FACTS ........................................................................................ 2 GROUND FOR REVIEW ......................................................................................... 2 Whether the Court of Appeals failed to apply this Court’s ruling that requires the trial court to apply the specific facts of a case to the law of parties in the jury charge upon the objection and request of the defendant. ARGUMENT ............................................................................................................. 2 FACTS ............................................................................................................. 3 APPLICABLE LAW ....................................................................................... 5 THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 5 CONCLUSION ............................................................................................... 9 PRAYER FOR RELIEF ..........................................................................................10 CERTIFICATE OF SERVICE ................................................................................10 CERTIFICATE OF COMPLIANCE .......................................................................11

iii

INDEX OF AUTHORITIES

Cases Campbell v. State, 910 S.W.2d 475 (Tex. Crim. App. 1995) ............................................. 2, 5, 6, 7 Hatch v. State, No. 05-13-01710-CR, 2015 Tex. App. LEXIS 8358 (Tex. App.—Dallas August 10, 2015) ...........................................................................................2, 6 Johnson v. State, 739 S.W.2d 299 (Tex. Crim. App. 1987) ..........................................................5 Jones v. State, 815 S.W.2d 667 (Tex. Crim. App. 1991) ..........................................................5 Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) ................................................. 5, 6, 8 Statutes TEXAS PENAL CODE § 29.03 ..................................................................................3 Rules TEX. R. APP. P. 68.4(i) ..........................................................................................2

iv *1 TO THE HONORABLE COURT OF CRIMINAL APPEALS:

Errington Charles Hatch, Appellant, respectfully presents to this Honorable Court his Petition for Discretionary Review of the Fifth District Court of Appeals’ Opinion affirming the trial court’s judgment.

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument because this case presents a question of law on issues having statewide impact and possible reoccurrence. Oral argument may be helpful to the members of this Court in the resolution of the issues presented.

STATEMENT OF THE CASE

Appellant was charged by indictment with aggravated robbery with a deadly weapon. (CR: 12). On November 26, 2013, Appellant pled not guilty to the indictment and was tried and convicted by a jury. (RR2: 118; RR3: 99). The trial court determined punishment at a hearing on November 26, 2013. (RR4: 1-95). Following the punishment hearing, the trial court sentenced Appellant to forty years’ imprisonment. (RR5: 14; CR: 67). Appellant timely filed his notice of appeal on November 26, 2013. (CR: 72).

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

On August 10, 2015, in an unpublished opinion authored by Justice Francis, the Court of Appeals for the Fifth District of Texas affirmed the *2 trial court’s judgment. Hatch v. State, No. 05-13-01710-CR, 2015 Tex. App. LEXIS 8358, * 17 (Tex. App.—Dallas August 10, 2015). This Court granted an extension of time to file a Petition for Discretionary Review, which is timely if filed on or before October 9, 2015.

STATEMENT OF FACTS

The facts of this case, which are extensive, are adequately recited in the Court of Appeal’s opinion, which is attached to this Petition as required by TEX. R. APP. P. 68.4(i).

Suffice it to say that Appellant was charged with and convicted of aggravated robbery with a deadly weapon. (CR: 12; 67).

GROUND FOR REVIEW

Whether the Court of Appeals failed to apply this Court’s ruling that requires the trial court to apply the specific facts of a case to the law of parties in the jury charge upon the objection and request of the defendant.

ARGUMENT

The Court of Appeals failed to apply the standard stating that “[a] defendant who objects to a general reference to the law of parties in the application paragraph is entitled to increased specificity and to have the law of parties applied to the facts of the case.” Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. 1995). *3

FACTS

Appellant was indicted of aggravated robbery with a deadly weapon, a firearm, pursuant to Texas Penal Code § 29.03. (CR: 12). The indictment stated that Appellant did the following:

On or about the 28th day of August, 2011 in the County of Dallas, did then and there intentionally and knowingly while in the course of committing theft of property and with intent to obtain or maintain control of said property, threaten and place BREYSHAIA THOMAS in fear of imminent bodily injury and death, and the defendant used and exhibited a deadly weapon, to-wit: A FIREARM…

(CR: 12). The trial court included two paragraphs in its application paragraph of the jury charge. (CR: 77-78). The first paragraph instructed the jury on aggravated robbery. (CR: 77). The second paragraph was an instruction regarding the lesser-included offense of robbery, as requested by Appellant. (CR: 77; RR3: 66). The application paragraphs read as follows:

Now, therefore, if you believe from the evidence beyond a reasonable doubt that, the defendant, ERRINGTON CHARLES HATCH, acting as a party, entered into a conspiracy to rob BREYSHIA THOMAS, on or about the 28th day of August, A.D., 2011, in DALLAS COUNTY, Texas, while in the course of committing theft of personal property, from BREYSHIA THOMAS, by intentionally or knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of said property, and the defendant, ERRINGTON CHARLES HATCH, pursuant to said conspiracy, if any, with the intent to promote or assist DOMINIC EDWARDS or MICHAEL LOCKETT in the commission of said robbery, BREYSHIA THOMAS was threatened or placed in fear of imminent bodily injury or death,

and at the time of the robbery, if any, was acting or and aiding the said DOMINICK EDWARDS and MICHAEL LOCKETT of said robbery of BREYSHIA THOMAS, and was done in furtherance of the conspiracy to rob BREYSHIA THOMAS, if any, and was an offense that should have been anticipated as a result of the carrying out of the conspiracy, then you will find the defendant, ERRINGTON CHARLES HATCH, guilty of Aggravated Robbery.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of Aggravated Robbery and consider the lesser offense of Robbery.

Now, if you find from the evidence beyond a reasonable doubt that on or about the 28th day of August, A.D., 2011 in Dallas County, Texas, the Defendant, ERRINGTON CHARLES HATCH, while in the course of committing theft of property, and with intent to obtain or maintain control of said property of BREYSHIA THOMAS, hereinafter called complainant, by threatening or placing complainant in fear of imminent bodily injury or death, then you will find the Defendant guilty of ROBBERY.

(CR: 77-78). Appellant objected to the charge and requested the trial court include the specific conduct by Appellant that constituted party liability in the application paragraph. (RR3: 65-68). Specifically, Appellant asked that the jury charge state what Appellant did “to solicit, encourage, direct, aid or attempt to aid that person in his threatening Breyshia Thomas.” (RR3: 65). The trial court denied Appellant’s motion. (RR3: 68). *5

APPLICABLE LAW

“The application paragraph of a jury charge is that which authorizes conviction, and an abstract charge on a theory of law which is not applied to the facts is insufficient to bring that theory before the jury.” Campbell, 910 S.W.2d at 477, citing Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App. 1991). “If the application paragraph of the jury charge refers to the law of parties in the abstract portion of the charge, then the jury is authorized to convict upon a parties theory.” Id., citing Johnson v. State, 739 S.W.2d 299, 305 n. 4 (Tex. Crim. App. 1987) (overruled on other grounds).

A defendant who objects to the charge and requests a more specific application of the facts of the case to the law of parties in the application paragraph is entitled to that instruction. Id. Therefore, it is reversible error for the trial court to deny a defendant’s request to specifically apply the facts of the case to the law of parties in the application paragraph of the jury charge if the defendant has suffered harm to his rights. Vasquez v. State, 389 S.W.3d 361, 368 (Tex. Crim. App. 2012). THE COURT OF APPEALS’ HOLDING IS INCORRECT

The Court of Appeals’ decision is in conflict with the holding of this Court.

The Court of Appeals in its opinion cited Vasquez v. State to say a “defendant, upon request, is entitled to a narrowing of the specific statutory modes of conduct that constitute party liability—whether he solicited, encouraged, directed, aided or attempted to aid another specified person to commit the offense.” Hatch, 2015 Tex. App. LEXIS 8358, at *11, quoting Vasquez v. State, 389 S.W.3d 361, 368 (Tex.Crim. App. 2012). Yet, in the same paragraph, the opinion states the following:

[a]ppellant has not cited us to any law, nor have we found any, that requires the trial court to set out the “specific acts” constituting the statutory mode of conduct. Because the trial court did not err in denying appellant’s request, we overrule the third issue.

Id. at *11-12. In that statement, the Court of Appeals ignored the fact that they cited the applicable law, Vasquez, just two sentences prior. Vasquez, 389 S.W.3d at 368 (Tex.Crim. App. 2012). In fact, Vasquez specifically states:

if the defendant does request that the application paragraph refer only to those specific party-liability acts that are supported by the evidence, then he is entitled to such a narrowing. The failure to narrow the specific modes of party-liability conduct when properly requested is reversible error if the defendant has suffered actual harm to his rights.

Id. Furthermore, Appellant cited both Vasquez v. State and Campbell v. State in its brief. See Appellant’s Brief at p. 13, citing Vasquez, 389 S.W.3d at 368; quoting Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App. *7 1995). Campbell states “a defendant who objects to a general reference to the law of parties in the application paragraph is entitled to increased specificity and to have the law of parties applied to the facts of the case.” Id.

Despite the fact the Court of Appeals had the applicable law before them; they failed to apply it in Appellant’s case. Had the Court of Appeals done so, the proper analysis would have been as follows: the record shows Appellant objected to the charge and moved the trial court to specifically include in the jury charge what Appellant did “to solicit, encourage, direct, aid or attempt to aid that person in his threatening Breyshia Thomas.” (RR3: 65). The trial court denied Appellant’s motion. (RR3: 68).

According to Campbell, Appellant was entitled to an instruction specifically applying the facts of his case to the law of parties upon Appellant’s request. Id. Since Appellant was entitled to that instruction upon objection and request, it was error for the trial court to deny Appellant’s motion to apply the facts of his case to the law of parties in the jury charge. As such, the Court of Appeals should have found as error the trial court’s refusal of Appellant’s objection and request.

Moreover, Appellant certainly sustained harm from failure to apply the specific facts of his case to the parties’ language as he requested. In analyzing the harm to Appellant, the trial court must look at the entire *8 charge as a whole, the evidence at trial, and the arguments of counsel. Vasquez, 389 S.W.3d 371-372.

The charge, as a whole, was very confusing. The trial court included both parties and conspiracy language throughout the charge. Conspiracy requires an agreement and an overt action, no matter how small pursuant to that agreement. However, conviction under a theory of party liability requires a party acting with intent to promote or assist the commission of the offense to solicit, encourage, direct, aid or attempt to aid the other person. (CR: 76-77). The difference in the definitions created great potential for confusion among the jury. If the trial court had been specific regarding Appellant’s actions possibly showing party liability, it might have helped clarify the confusion. However, it did not; therefore, the jury was left with three offenses to find Appellant guilty of instead of two, contributing to the possibility Appellant could have been convicted of an offense he was not charged with or improperly convicted under a theory of party liability.

The evidence at trial did not show Appellant possessed a gun; however, he was helping the other two men carry items in and out of the apartment. Depending on whether the jury believed the witnesses’ testimony regarding the gun, it is possible that Appellant could have been found guilty, certainly of robbery, as a principal. It certainly would have aided the jury if *9 the specific actions of Appellant had been delineated for the jury in the charge as he requested.

The argument of defense counsel was that Appellant was not a party, but merely present at the scene. Defense counsel emphasized that the charge did not state what actions Appellant did to incur liability as a party. (RR3: 88-92). Furthermore, counsel argued that since the trial court did not specifically include what he did to incur that liability, the jury could not find him guilty as a party. (RR3: 92). The State argued that Appellant driving and carrying items out of the home could make him liable as a party. (RR3: 95-96). Therefore, there was some discrepancy in how the law was interpreted during closing argument, which would contribute to any confusion caused by the errors in the charge.

The jury charge error affected Appellant’s basic rights to have every element of the charge determined by a jury beyond a reasonable doubt and a jury verdict based only on the offense for which he was indicted. Therefore, the Court of Appeals should not only have found error in Appellant’s case, but that Appellant was harmed as a result.

CONCLUSION

The Court of Appeals’ decision to affirm the trial court’s ruling is contrary to the rulings of this Court. This Court should grant discretionary *10 review to resolve this discrepancy between the Court of Appeal’s ruling and the ruling of this Court.

PRAYER FOR RELIEF

For the reasons herein alleged, Appellant prays this Court grant this petition and, upon reviewing the judgment entered below, remand the case for a new trial. Respectfully submitted, Lynn Richardson Chief Public Defender /s/ Nanette Hendrickson Nanette Hendrickson Assistant Public Defender State Bar No. 24081423

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of October, a true copy of the foregoing petition for discretionary review was served on Lori Ordiway, Assistant District Attorney, Dallas County Criminal District Attorney’s Office, 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207, by electronic and hand delivery; and was also served on, Lisa C. McMinn, State Prosecuting Attorney, P.O. Box 13046, Austin, Texas, 78711 by electronic delivery and by depositing same in the United States Mail, Postage Prepaid.

/s/ Nanette Hendrickson Nanette Hendrickson

CERTIFICATE OF COMPLIANCE

I certify that the foregoing Petition for Discretionary Review contains 2,697 words.

/s/ Nanette Hendrickson Nanette Hendrickson

User Name: nanette hendrickson Date and Time: Oct 06, 2015 2:18 p.m. EDT Job Number: 24657832

Document(1)

1. Hatch v. State, 2015 Tex. App. LEXIS 8358 Client/Matter: -None- Narrowed by: Content Type Narrowed by Cases -None-

| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2015 | LexisNexis. nanette hendrickson

No Shepard’s Signal™ As of: October 6, 2015 2:18 PM EDT

Hatch v. State Court of Appeals of Texas, Fifth District, Dallas August 10, 2015, Opinion Filed No. 05-13-01710-CR

Reporter 2015 Tex. App. LEXIS 8358

ERRINGTON CHARLES HATCH, Appellant v. THE Judgment affirmed. STATE OF TEXAS, Appellee LexisNexis® Headnotes Notice: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS. Criminal Law & Procedure > ... > Standards of Review > Harmless & Invited Error > Jury Instructions Prior History: [*1] On Appeal from the Criminal District Criminal Law & Procedure > Appeals > Reversible Error > Jury Court No. 4, Dallas County, Texas. Trial Court Cause No. Instructions F-1159284-K. Criminal Law & Procedure > Trials > Jury Instructions > Objections Core Terms Criminal Law & Procedure > ... > Reviewability > Preservation for Review > Failure to Object deadly weapon, trial court, conspiracy, aggravated robbery, indictment, shoots, gun, argues, robbery, issues, jury charge, HN1 Appellate review of claims of jury charge error firearms, dark skinned, exhibition, commission of the involves a two-step process. The appellate court first offense, parties, robber, party liability, extraneous, comments, determines whether error exists in the charge; if not, the overrule, pet, beyond a reasonable doubt, complaints, complains, egregious, murder, autopsy report, light skinned, analysis ends. If error occurred, then the appellate court living room analyzes that error for harm, with the standard of review for harm being dependent on whether error was preserved for appeal. When the defendant fails to object, the appellate Case Summary court will not reverse for jury charge error unless the record shows egregious harm to the defendant. Overview HOLDINGS: [1]-Where defendant was charged as a Criminal Law & Procedure > Accessories > General Overview co-conspirator under the law of parties and found guilty of Criminal Law & Procedure > ... > Indictments > Contents > aggravated robbery with a deadly weapon under Tex. Penal General Overview Code Ann. § 29.03(a)(2), the trial court properly instructed the jury on criminal responsibility and the charge contained HN2 A person may be convicted as a party to an offense if the statutory definition of conspiracy requested by defendant; the offense is committed by his own conduct, by the conduct [2]-The trial court committed harmless error because the of another for which he is criminally responsible, or both. application paragraph omitted the deadly weapon element; Tex. Penal Code Ann. § 7.01(a) (2011). The law of parties, [3]-The state of the evidence supported the conclusion that as set out in Tex. Penal Code Ann. § 7.02, may be applied to defendant either used or exhibited a deadly weapon or was a case even though no such allegation is contained in the aware his co-conspirators did; [4]-The trial court did not err by entering the deadly weapon finding in the judgment; indictment. Under Tex. Penal Code Ann. § 7.02(a), a person [5]-The record on appeal did not support defendant’s is criminally responsible as a party if, acting with intent to ineffective assistance of counsel claim. promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person Outcome to commit the offense. Tex. Penal Code Ann. § 7.02(a)(2).

nanette hendrickson

Page 2 of 10 2015 Tex. App. LEXIS 8358, *1

Criminal Law & Procedure > ... > Inchoate Crimes > to which the application paragraph necessarily and Conspiracy > Elements unambiguously refers, or contains some logically consistent Criminal Law & Procedure > Criminal Offenses > Classification combination of such paragraphs. of Offenses > Felonies Criminal Law & Procedure > Accessories > Aiding & Abetting HN3 See Tex. Penal Code Ann. § 7.02(b). Criminal Law & Procedure > Criminal Offenses > Acts & Mental States > Actus Reus Criminal Law & Procedure > Criminal Offenses > Classification of Offenses > Felonies HN9 A defendant, upon request, is entitled to a narrowing Criminal Law & Procedure > ... > Inchoate Crimes > of the specific statutory modes of conduct that constitute Conspiracy > Elements party liability—whether he solicited, encouraged, directed, aided or attempted to aid another specified person to HN4 See Tex. Penal Code Ann. § 15.02(a). commit the offense. No law requires the trial court to set out the specific acts constituting the statutory mode of conduct. Criminal Law & Procedure > ... > Standards of Review > Harmless & Invited Error > General Overview Criminal Law & Procedure > ... > Weapons Offenses > Use of Weapons > General Overview HN5 Under the doctrine of invited error, if a party requests or moves the court to make an erroneous ruling, and the Criminal Law & Procedure > Trials > Entry of Judgments court rules in accordance with the request or motion, the Criminal Law & Procedure > ... > Indictments > Contents > party responsible for the court’s action cannot take advantage General Overview of the error on appeal. Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > Factual Issues Criminal Law & Procedure > ... > Standards of Review > Harmless & Invited Error > Jury Instructions HN10 If the use of a deadly weapon is an element of the Criminal Law & Procedure > ... > Jury Instructions > Particular charged offense and is alleged in the indictment, and the Instructions > Elements of Offense jury finds the defendant guilty as alleged in the indictment, then that finding necessarily supports entry of an affirmative HN6 A jury charge must distinctly set out the law applicable finding in the use or exhibition of a deadly weapon in the to the case and all the essential elements of the offense. judgment. When an element of an offense has been omitted, there is jury charge error, and it is subject to harm analysis. Criminal Law & Procedure > ... > Standards of Review > Abuse of Discretion > Evidence Criminal Law & Procedure > ... > Standards of Review > Harmless & Invited Error > General Overview Evidence > Admissibility > Conduct Evidence > Prior Acts, Crimes & Wrongs HN7 To determine egregious harm, the appellate court Criminal Law & Procedure > Sentencing > Imposition of examines the entire jury charge, the state of the evidence, Sentence > Evidence including contested issues and weight of probative evidence, Evidence > ... > Procedural Matters > Objections & Offers of the arguments of counsel, and other relevant information Proof > Objections revealed by the record of the trial as a whole. Errors that result in egregious harm are those that deprive appellant of Criminal Law & Procedure > ... > Reviewability > Preservation a valuable right, affect the very basis of the case, or vitally for Review > Evidence affect a defensive theory. HN11 The only review possible of the sufficiency of the Criminal Law & Procedure > Trials > Jury Instructions > proof of an extraneous offense offered at the punishment General Overview stage is a review under an abuse of discretion standard of the trial court’s threshold ruling on admissibility. If the HN8 A jury charge is adequate if it contains an application judge is satisfied there is evidence upon which a rational paragraph specifying all of the conditions to be met before factfinder could find beyond a reasonable doubt that the a conviction under such theory is authorized, contains an defendant committed the extraneous misconduct, the application paragraph authorizing a conviction under defendant must object to the admissibility of the evidence to conditions specified by other paragraphs of the jury charge preserve error.

nanette hendrickson

Page 3 of 10 2015 Tex. App. LEXIS 8358, *1

Criminal Law & Procedure > ... > Reviewability > Preservation Criminal Law & Procedure > ... > Review > Specific Claims > for Review > Constitutional Issues Ineffective Assistance of Counsel

Criminal Law & Procedure > ... > Reviewability > Preservation HN15 A silent record which provides no explanation for for Review > Requirements counsel’s actions will not overcome the strong presumption Governments > Courts > Judges of reasonable assistance. Counsel should ordinarily be accorded the opportunity to explain his actions before being Evidence > ... > Judicial Intervention in Trials > Comments by denounced as ineffective. Because the reasonableness of Judges > General Overview trial counsel’s choices often involve facts that do not appear Criminal Law & Procedure > Appeals > Reversible Error > in the appellate record, an application for writ of habeas Structural Errors corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. HN12 Most appellate complaints must be preserved by a timely request for relief at the trial court level. Tex. R. App. Counsel: For Appellants: Nanette Hendrickson, Katherine P. 33.1. Even claims involving constitutional error, including A. Drew, Lynn Pride Richardson, Dallas, TX. claims that due process rights have been violated, must be preserved by objection or are waived. This general rule For Appellees: Patricia Poppoff Noble, Susan Hawk, Dallas, applies to complaints regarding improper judicial comments, TX. except when the judicial comments rise to the level of fundamental error. Judges: Before Justices Bridges, Francis, and Lang. Opinion by Justice Francis. Criminal Law & Procedure > ... > Counsel > Effective Assistance of Counsel > Tests for Ineffective Assistance of Opinion by: MOLLY FRANCIS Counsel

HN13 To successfully assert an ineffective assistance of Opinion counsel challenge on direct appeal, an appellant must show that (1) counsel’s representation fell below an objective MEMORANDUM OPINION standard of reasonableness; and (2) the deficient performance prejudiced him; that is, but for the deficiency, there is a Opinion by Justice Francis reasonable probability that the result of the proceeding would have been different. After a jury convicted Errington Charles Hatch of aggravated robbery with a deadly weapon, the trial court assessed Criminal Law & Procedure > ... > Counsel > Effective punishment at forty years in prison. In fifteen issues, Assistance of Counsel > General Overview appellant brings complaints about the jury charge, the Criminal Law & Procedure > Appeals > Procedural Matters > affirmative deadly weapon finding, extraneous offense Records on Appeal evidence, the trial court’s partiality, and his counsel’s representation of him. Having reviewed his complaints, we HN14 An ineffective assistance of counsel claim must be conclude they are without merit and affirm the trial court’s firmly founded in the record, and the record must judgment. affirmatively demonstrate the claim has merit. The appellate court commonly assumes a strategic motive if any can be On the night of August 28, 2011, Breyshia Thomas was at imagined and finds counsel’s performance deficient only if home with her younger siblings, twelve-year-old Jamyra the conduct was so outrageous that no competent attorney and five-year-old Bryan. Breyshia was in her bedroom, would have engaged in it. Jamyra was in her bedroom, and Bryan was in the living room. At about 11:15 p.m., Breyshia heard a ″loud boom,″ Criminal Law & Procedure > Appeals > Procedural Matters > realized someone had kicked in the door to their apartment, Records on Appeal and knew they were being robbed. Three black men entered Criminal Law & Procedure > ... > Counsel > Effective her room. Two of the men were darker skinned, and the third Assistance of Counsel > General Overview was ″bright″ or light skinned and had a cross [*2] tattoo on Evidence > Inferences & Presumptions > Presumptions > his face. The light-skinned robber, ultimately identified as Rebuttal of Presumptions Dominic Edwards, pointed a gun in Breyshia’s face and

nanette hendrickson

Page 4 of 10 2015 Tex. App. LEXIS 8358, *2

demanded money or he would shoot her. The two other At trial, appellant was charged as a co-conspirator under the robbers went into her sister’s room. law of parties, and the jury found him guilty of aggravated robbery with a deadly weapon. Appellant elected to have the Edwards pulled Breyshia into the living room so that she trial court determine his punishment. At the punishment could turn off the security alarm, but Breyshia pretended she hearing, the State presented evidence of appellant’s did not know the code. Bryan was crying, and Edwards involvement, two months before this offense, in a capital threatened to shoot both of them if he did not stop. Breyshia murder/attempted murder that left one man dead and another and her brother went with Edwards to their mother’s injured. bedroom, where Breyshia found a safe in the closet. Edwards took the safe and left the room. Terrance Robertson, the surviving witness in the prior offenses, testified he and a friend, Geoffrey Sowels, were When Breyshia thought the men had left the house, she and sitting in a truck outside his apartment on June 5, 2011 when her brother went into the living room, but the men returned two black men approached them asking for drugs. Robertson and continued to remove property. The men were talking said one of the men was slim and light skinned and the other among each other, and all of them were carrying property was heavy set and dark skinned. The dark-skinned man out of the apartment. They took several electronic items, the pulled a gun, reached in the truck, patted Sowels’s pockets, safe, and an unopened surround sound system. Although she and demanded everything he had. [*5] Sowels said he did only saw Edwards handling a gun, she saw a second gun on not have anything, and the man shot Sowels and told his the floor of the living room. Breyshia said she had never cohort to ″[r]un around there and shoot him,″ referring to seen any of the men before that night. Robertson. The light-skinned man shot Robertson in the Jamyra testified that when she heard the ″loud boom,″ she side, and then both men fled. Sowels died, and Robertson hid in her closet. From there, she watched a short, [*3] fat was hospitalized for a week. black man with a gun and a mask or hat come into her room and go through her belongings. This robber, ultimately During his testimony, Robertson did not identify appellant identified as Michael Lockett, took her laptop, iPad, and as one of the assailants, and after the defense cross-examined other things and left her room. After that, Jamyra ended up him, the trial judge asked some questions to clarify which in the living room, where she saw a tall, darker-skinned man robber shot which person: who told them to be quiet and asked for ″the dope.″ In all, Jamyra said she saw three robbers: the short, fat black man; THE COURT: So when all this is happening, you saw the tall, darker-skinned man, and a light-skinned man with the guy with the tattoo on his face? a tattoo on his face. Two had guns: the short, fat black man [ROBERTSON]: I didn’t see no guy with a tattoo on his and the tall, darker-skinned man. Jamyra said it was clear face. the men were working together to rob them. THE COURT: Which one shoots, the light skinned one, Senior Corporal Cathy Blanchard of the Dallas Police right? Department was on patrol when she received a call for a [ROBERTSON]: The dark skinned one. The heavy set burglary in progress. As she headed to the scene, she passed one. a vehicle matching the description of the suspect vehicle and turned around. From behind, she could see it was THE COURT: The dark skinned one. occupied by three black males as had also been described in [PROSECUTOR]: Just, let me clear it up. The dark the call. Blanchard stopped the vehicle and identified the skinned one shoots Geoffrey, correct? occupants: appellant was driving, and Edwards and Lockett were passengers. Items taken in the burglary were found [ROBERTSON]: Right. inside. In addition, a revolver, semiautomatic handgun, [*4] THE COURT: And the light skinned one shoots you? and ski mask were found under the rear passenger seat cushion. The three men were arrested. [ROBERTSON]: Shoots me.

Hours after the robbery, Breyshia and Jamyra were shown [THE COURT]: All right. So the dark skinned one photographic lineups, and Edwards and Lockett were shoots [Sowels]? identified as two of the robbers. Appellant was not identified [ROBERTSON]: Yes. by either Breyshia or Jamyra, but his fingerprints were found inside the apartment. [THE COURT]: And the light skinned one shoots him?

nanette hendrickson

Page 5 of 10 2015 Tex. App. LEXIS 8358, *5

[PROSECUTOR]: Yes. HN1 Appellate review of claims of jury charge error involves a two-step process. Ngo v. State, 175 S.W.3d 738, [THE COURT]: The dark skinned one is Mr. Lockett? 743 (Tex. Crim. App. 2005). We first determine whether [PROSECUTOR]: Judge, at this point there hasn’t been error exists in the charge; if not, our analysis ends. Id. If any evidence [*6] of any identification, but if you are error occurred, then we analyze that error for harm, with the asking me, the State tenders to the Court that Mr. Hatch standard of review for harm being dependent on whether was the dark skinned shooter. error was preserved for appeal. See id. When the defendant [THE COURT]: Okay. That’s what I’m trying to figure fails to object, we will not reverse for jury charge error out, who is the dark skinned one. Is it Hatch or Lockett? unless the record shows ″egregious harm″ to the defendant. Id. [PROSECUTOR]: It’s Hatch. Appellant was indicted on a charge of aggravated robbery After this exchange, Robertson asked to be allowed to show that alleged he used or exhibited a deadly weapon. See TEX. the trial court how the shootings occurred, and the trial court PENAL CODE ANN. § 29.03(a)(2) (West 2011). The abstract portion of the charge defined party liability and party agreed. Robertson then described how the shootings occurred liability as a co-conspirator under penal code section 7.02 in more detail. and further defined conspiracy under penal code section Following Robertson’s testimony, the investigating detective 15.02. See id. §§ 7.02(a)(2),(b) (criminal responsibility for testified about how he identified appellant as the the conduct of another) & 15.02(a)(1)(2),(b) (criminal dark-skinned shooter in the June 5 offenses. According to conspiracy) (West 2011). The application paragraph then the detective, the bullet recovered from Sowels’s body was authorized appellant’s conviction for aggravated robbery on fired from one of the guns found in the back seat of the the conspiracy theory of party liability and read as follows: getaway vehicle in the aggravated robbery at issue here. As Now, therefore, if you believe from the evidence a result, the detective began investigating the three suspects beyond a [*9] reasonable doubt that, the defendant, in this offense, including appellant. He learned appellant’s ERRINGTON CHARLES HATCH, acting as a party, cell phone number and obtained his cell phone records, entered into a conspiracy to rob BREYSHIA THOMAS, which showed appellant made and received several calls in on or about the 28th day of August, A.D., 2011, in the area both before and after the shooting. The detective DALLAS COUNTY, Texas, while in the course of also learned from a witness that Edwards (the light-skinned committing theft of personal property, from BREYSHIA suspect) and appellant were at the location [*7] that night THOMAS, by intentionally or knowingly, while in the before the shootings. course of committing theft of property and with intent to obtain or maintain control of said property, and the The State attempted to call the medical examiner to explain defendant, ERRINGTON CHARLES HATCH, pursuant the autopsy report on Sowels, but the trial court refused, to said conspiracy, if any, with the intent to promote or saying the court could read the autopsy report. Thereafter, assist DOMINIC EDWARDS or MICHAEL LOCKETT the autopsy report, firearms report, National Integrated in the commission of said robbery, BREYSHIA Ballistics Information Network (NIBIN)1 hit reports, and THOMAS was threatened or placed in fear of imminent autopsy photographs were admitted without objection. After bodily injury or death, and at the time of the robbery, if hearing the evidence and argument of counsel, the trial court any, was acting or and aiding the said DOMINIC assessed punishment at forty years in prison and indicated EDWARDS and MICHAEL LOCKETT of said robbery its decision was impacted by Robertson’s testimony. of BREYSHIA THOMAS, and was done in furtherance In his first, second, and third issues, appellant contends he of the conspiracy to rob BREYSHIA THOMAS, if any, is entitled to reversal because of errors in the jury charge. and was an offense that should have been anticipated as Specifically, he argues the trial court erred by (1) instructing a result of the carrying out of the conspiracy, then you the jury on the unindicted offense of conspiracy, (2) failing will find the defendant, ERRINGTON CHARLES to include the element of a deadly weapon in the application HATCH, guilty of Aggravated Robbery. [*8] paragraph, and (3) denying his request to include the Unless you so find beyond a reasonable doubt, or if you specific acts of party liability in the application paragraph. have a reasonable doubt [*10] thereof, you will acquit

1 NIBIN is a ballistics database that stores the imaging of bullet and casing signatures and allows law enforcement agencies to compare bullets and casings found at different crime scenes for connections between crimes. Kathryn E. Carso, Comment, Amending the Illinois Postconviction Statute to Include Ballistics Testing, 56 DEPAUL L. REV. 695, 701-01 (2007).

nanette hendrickson

Page 6 of 10 2015 Tex. App. LEXIS 8358, *10

the defendant of Aggravated Robbery and consider the (2) he or one or more of them performs an overt act in lesser offense of Robbery. pursuance of the agreement.

In his first issue, appellant argues the trial court improperly An agreement constituting [*12] a conspiracy may be included the definition of conspiracy in the abstract and inferred form the acts of the parties. application paragraphs of the charge when appellant was not HN5 Under the doctrine of invited error, if a party requests indicted on a conspiracy charge. By doing so, he asserts the or moves the court to make an erroneous ruling, and the trial court authorized conviction for an offense—criminal court rules in accordance with the request or motion, the conspiracy—not alleged in the indictment. The State counters party responsible for the court’s action cannot take advantage that appellant ″confuses″ an instruction on the separate of the error on appeal. Prystash v. State, 3 S.W.3d 522, 531 offense of criminal conspiracy with the instruction actually (Tex. Crim. App. 1999); Willeford v. State, 72 S.W.3d 820, given, criminal responsibility under the conspiracy theory 823-24 (Tex. App.—Fort Worth 2002, pet. ref’d). Here, of law of parties. We agree with the State. appellant urged the court to include in the charge the penal HN2 A person may be convicted as a party to an offense if code definition of conspiracy. Having done so, he is now in the offense is committed by his own conduct, by the conduct no position to complain about the definition in the charge of another for which he is criminally responsible, or both. when he requested it. See Willeford, 72 S.W.3d at 823-24. See TEX. PENAL CODE ANN. § 7.01(a) (West 2011). The law of Regardless, the court of criminal appeals addressed a similar parties, as set out in section 7.02, may be applied to a case complaint in Montoya, rejecting the argument that including even though no such allegation is contained in the indictment. the theory of conspiracy in the court’s charge erroneously Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. allowed the jury to consider whether the defendant was 1989). Under section 7.02(a), a person is criminally guilty of the separate offense of criminal conspiracy under responsible as a party if, acting with intent to promote or section 15.02. 810 S.W.2d at 165. The court held the charge, assist the commission of the offense, he solicits, encourages, which defined the term ″conspiracy,″ ″merely contained an directs, aids, or attempts [*11] to aid the other person to alternative ’parties’ charge as provided″ in section 7.02(b). commit the offense. TEX. PENAL CODE ANN. § 7.02(a)(2). Id.; see Murkledove v. State, 437 S.W.3d 17, 22-23 (Tex. Section 7.02(b) provides another theory of party liability as App.—Fort Worth 2014, pet. dism’d, untimely filed). a co-conspirator: Likewise, in this case, the charge contained a parties charge with the statutory definition of conspiracy requested by HN3 If, in the attempt to carry out a conspiracy to appellant. We overrule the first issue. commit one felony, another felony is committed by one In his second issue, appellant contends the trial court erred of the conspirators, all conspirators are guilty of the when [*13] it charged the jury on aggravated robbery with felony actually committed, though having no intent to a deadly weapon but omitted the deadly weapon element commit it, if the offense was committed in furtherance from the application paragraph. He argues he was of the unlawful purpose and was one that should have egregiously harmed by the omission because he was denied been anticipated as a result of the carrying out of the his right to have a jury determine every element of the conspiracy. offense beyond a reasonable doubt. Id. § 7.02(b). The abstract portion of the court’s charge HN6 A jury charge must distinctly set out the law applicable included instructions from both (a) and (b) of section 7.02. to the case and all the essential elements of the offense. At the charge conference, appellant objected that the charge Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App. did not contain a definition of conspiracy and urged the 2006). When an element of an offense has been omitted, court to include the penal code definition. Although the there is jury charge error, and it is subject to harm analysis. court initially balked at appellant’s request, it ultimately Olivas v. State, 202 S.W.3d 137, 143 (Tex. Crim. App. 2006). included the following HN4 section 15.02(a) definition: Here, the indictment alleged aggravated robbery with a deadly weapon; thus, use or exhibition of a deadly weapon A person commits criminal conspiracy if, with intent that a was an element of the offense. Because the application felony be committed: paragraph omitted the deadly weapon element, it was (1) he agrees with one or more persons that they or one incomplete and constituted error. or more of them engage in conduct that would constitute Having so concluded, we next decide whether sufficient the offense; and harm was caused by the error to require reversal. Because

nanette hendrickson

Page 7 of 10 2015 Tex. App. LEXIS 8358, *13

appellant did not object, we consider whether the error was With regard to the jury arguments, defense counsel argued egregious. Warner v. State, 245 S.W.3d 458, 461-62 (Tex. appellant should be acquitted because the State had not Crim. App. 2008). HN7 To determine egregious harm, we identified any ″overt act″ by appellant and had shown examine the entire jury charge, the state of the evidence, nothing more [*16] than appellant’s presence at the scene. including contested issues and weight of probative evidence, In response, the State pointed out evidence to show the three the arguments of counsel, and other relevant information men were working together in the commission of the revealed by the record of [*14] the trial as a whole. Id. aggravated robbery. Beginning with Breyshia’s testimony, Errors that result in egregious harm are those that deprive the State detailed how the robbers kicked in the door and appellant of a valuable right, affect the very basis of the entered her room, and the ″ringleader″ Edwards pointed a case, or vitally affect a defensive theory. Id. gun at her ″while the other two are standing right behind him. Errington Hatch and Michael Lockett.″ The State also HN8 A jury charge is adequate if it contains an application recalled Jamyra’s testimony that the tall, dark robber, who paragraph specifying all of the conditions to be met before jurors could reasonably conclude was appellant, asked for a conviction under such theory is authorized, contains an ″the dope.″ The State pointed out that appellant was driving application paragraph authorizing a conviction under the getaway car, where the stolen property, ski mask, and conditions specified by other paragraphs of the jury charge guns were found, and also reminded jurors that appellant’s to which the application paragraph necessarily and fingerprints were found in the apartment. unambiguously refers, or contains some logically consistent combination of such paragraphs. Plata v. State, 926 S.W.2d Finally, we consider other relevant information revealed by 300, 304 (Tex. Crim. App. 1996), overruled on other the record of the trial as a whole. The record shows the grounds by Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. indictment was read to the jury at the commencement of App. 1997). trial, and alleged appellant ″used and exhibited a deadly Looking at the charge as a whole, the abstract portions weapon, to-wit: A FIREARM.″ Because the jury found accurately stated the substantive law on aggravated robbery, appellant guilty as charged in the indictment, it necessarily thus informing the jury of what the State had to prove. The found the commission of aggravated robbery also involved first sentence of the charge informed the jury that appellant the use or exhibition [*17] of a deadly weapon. was charged by indictment with aggravated robbery. The Having considered the error in light of the entire jury abstract portion then defined aggravated robbery as a charge, the state of the evidence, the arguments of counsel, robbery committed with the use or exhibition of a deadly and other relevant information, we conclude the error did weapon. See TEX. PENAL CODE ANN. § 29.03(a)(2). Robbery not cause egregious harm. We overrule the second issue. and deadly weapon were both correctly defined. See id. §§ 29.02(a)(1) (robbery) & 1.07(a)(17)(A),(B) (deadly weapon). In his third issue, appellant argues the trial court erred by [*15] The application paragraph then referred to aggravated denying his request to set out in the application paragraph robbery. In the verdict form, the jury found appellant guilty the specific acts upon which party liability was based. He of aggravated robbery ″as charged in the indictment.″ We argues the trial court was required, upon his request, to conclude the instructions and verdict form, read together, ″specifically include in the charge what [a]ppellant did ’to communicated to the jury that it had to find appellant was solicit, encourage, direct, aid, or attempt to aid that person aware a deadly weapon was being used in the commission in his threatening Breyshia Thomas.’″ We disagree. of the offense before it could convict him of aggravated robbery. HN9 A defendant, upon request, is entitled to a narrowing As for the state of the evidence, it supported the conclusion of the specific statutory modes of conduct that constitute that appellant either used or exhibited a deadly weapon or party liability—whether he solicited, encouraged, directed, was aware his co-conspirators did. Jamyra testified she saw aided or attempted to aid another specified person to two men with guns, one of whom was tall and dark skinned, commit the offense. Vasquez v. State, 389 S.W.3d 361, 368 and the jury could have concluded that man was appellant. (Tex. Crim. App. 2012). Here, the charge alleged appellant At the very least, the evidence shows appellant was aware ″was acting . . . or aiding″ Edwards and Lockett in the his cohorts were using guns during the robbery. Breyshia robbery of Breyshia; thus, the charge narrowed the specific testified three men came into her room, and one of the men, statutory mode of conduct that constituted party liability. identified as Edwards, had a gun. From this, a jury could Appellant has not cited us to any law, nor have we found have concluded appellant was aware a gun was being used any, that requires the trial court [*18] to set out the ″specific to commit the robbery. acts″ constituting the statutory mode of conduct. Because

nanette hendrickson

Page 8 of 10 2015 Tex. App. LEXIS 8358, *18

the trial court did not err in denying appellant’s request, we LEXIS 5463, 2006 WL 1738303, at *3 (Tex. App.—Dallas overrule the third issue. [*20] June 27, 2006, no pet.) (not designated for publication). If the judge is satisfied there is evidence upon In his fourth and fifth issues, appellant argues the trial court which a rational factfinder could find beyond a reasonable erred by entering a deadly weapon finding in the judgment doubt that the defendant committed the extraneous because it is not supported by an express jury finding. misconduct, the defendant must object to the admissibility Additionally, he asserts the trial court did not make a of the evidence to preserve error. Malpica, 108 S.W.3d at specific finding that appellant, who was convicted under the 379; see Martinez v. State, No. 05-04-01491-CR, 2006 Tex. law of parties, knew the firearm would be used during the App. LEXIS 4506, 2006 WL 1430060, at *3 (Tex. commission of the crime. He argues that when the law of App.—Dallas May 25, 2006, no pet.) (not designated for parties is applied, an affirmative finding of a deadly weapon publication). Here, appellant did not object below that the may only be entered when the court finds the appellant evidence was insufficient to establish that he committed the knew the deadly weapon would be used in the commission offense and thus inadmissible. Consequently, he has forfeited of the offense. his complaint. TEX. R. APP. P. 33.1(a); Malpica, 108 S.W.3d at 379; Martinez, 2006 Tex. App. LEXIS 4506, 2006 WL HN10 If the use of a deadly weapon is an element of the 1430060, at *3. We overrule the sixth issue. charged offense and is alleged in the indictment, and the jury finds the defendant guilty as alleged in the indictment, In his seventh, eighth, and ninth issues, appellant contends then that finding necessarily supports entry of an affirmative the trial judge failed to act as an impartial tribunal in finding in the use or exhibition of a deadly weapon in the determining punishment. Specifically, he argues the trial judgment. Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. court (1) improperly considered ″extrajudicial information App.—Houston [14th Dist.] 2002, pet. ref’d). such as the police report, autopsy report, firearms examiner’s report, and autopsy photos″ that were unauthenticated and Here, appellant was charged with aggravated robbery, and hearsay, (2) questioned the complaining witness in an the indictment included, as one of the elements, the allegation extraneous offense and the prosecutor to obtain an in-court that he [*19] ″used and exhibited a deadly weapon, to-wit: identification of appellant, and (3) prevented two State’s A FIREARM.″ The jury found appellant guilty ″as charged witnesses—the medical examiner and firearms in the indictment.″ Thus, before the jury was authorized to examiner—from [*21] testifying. Appellant argues these find appellant guilty, even as a party, it first had to believe issues together. beyond a reasonable doubt that he knew a deadly weapon would be used in the commission of the offense. See id.; With respect to the first complaint, the autopsy report, Hurd v. State, 322 S.W.3d 787, 793 (Tex. App.—Fort Worth firearms report, and autopsy photos were all admitted into 2010, no pet.). By its verdict, the jury necessarily made the evidence without objection and therefore were not factual finding to support entry of the affirmative finding of ″extrajudicial information.″ As for the third complaint, the the use or exhibition of a deadly weapon in the judgment. record shows the State indicated it wanted to call the Accordingly, the trial court did not err by entering the firearms examiner as a witness but never actually did so. finding in the judgment. We overrule the fourth and fifth When the trial judge indicated it did not need to hear from issues. the medical examiner, appellant did not object or indicate he wanted the opportunity to cross-examine him on his report. In his sixth issue, appellant contends the trial court erred by The second complaint involves the trial judge’s action, as admitting evidence of the extraneous offenses of capital set out previously, in attempting to clarify evidence presented murder/attempted murder during the punishment phase to her at punishment. Appellant did not complain below because there was insufficient evidence to show he about any of the conduct at the time nor did he raise the committed the offenses beyond a reasonable doubt. matters in a motion for new trial. Additionally, appellant has not argued that he was not required to preserve error. Although appellant couches his issue in terms of sufficiency, HN11 the only review possible of the sufficiency of the HN12 Most appellate complaints must be preserved by a proof of an extraneous offense offered at the punishment timely request for relief at the trial court level. See TEX. R. stage is a review under an abuse of discretion standard of APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. the trial court’s threshold ruling on admissibility. Malpica v. App. 2013); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. State, 108 S.W.3d 374, 379 (Tex. App.—Tyler 2003, pet. App. 1993), overruled on other grounds by Cain v. State, ref’d); Garcia v. State, No. 05-05-00926-CR, 2006 Tex. App. 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Even claims

nanette hendrickson

Page 9 of 10 2015 Tex. App. LEXIS 8358, *21

involving constitutional error, including claims that due admission of unauthenticated, hearsay [*24] autopsy, process rights have been violated, must be preserved [*22] firearms, and NIBIN hit reports as well as fourteen autopsy by objection or are waived. Hull v. State, 67 S.W.3d 215, 218 photographs, all related to the extraneous capital (Tex. Crim. App. 2002); Briggs v. State, 789 S.W.2d 918, 924 murder/attempted murder offenses. In addition, he complains (Tex. Crim. App. 1990). More particularly, this general rule counsel did not object when the trial court barred two applies to complaints regarding improper judicial comments, State’s witnesses—the medical examiner and the firearms except when the judicial comments rise to the level of examiner—from testifying about the information in those fundamental error. See Unkart, 400 S.W.3d at 99; Jasper v. reports, which he contends then prevented counsel from State, 61 S.W.3d 413, 420-21 (Tex. Crim. App. 2001) cross-examining the witnesses about the reports. He argues (concluding several types of comments—such as that trial counsel should have objected to all of the evidence interjections by judge to correct misstatement or as irrelevant because he was not identified by the surviving misrepresentation of previously admitted testimony, victim as the perpetrator and there was no strategic reason comments showing judge’s irritation at defense counsel, not to object. comments related to maintaining control and expediting trial, and comments aimed at clearing up points of HN13 To successfully assert an ineffective assistance of confusion—do not rise to level of fundamental error and counsel challenge on direct appeal, an appellant must show objection required to preserve error). that (1) counsel’s representation fell below an objective standard of reasonableness and (2) the deficient performance The Texas Court of Criminal Appeal has, however, granted prejudiced him; that is, but for the deficiency, there is a relief on an improper judicial comment complaint that was reasonable probability that the result of the proceeding not preserved at trial. See Blue v. State, 41 S.W.3d 129 (Tex. would have been different. Rylander v. State, 101 S.W.3d Crim. App.) (plurality op.). There, the trial judge apologized 107, 110 (Tex. Crim. App. 2003). HN14 An ineffective to the jurors about the delay in the case, telling them the assistance of counsel claim must be ″firmly founded in the defendant was still deciding whether to accept the State’s record,″ and the record must ″affirmatively demonstrate″ offer or go to trial. The trial judge told the jurors he would the claim has merit. Goodspeed v. State, 187 S.W.3d 390, ″prefer the defendant to plead″ because it would give him 392 (Tex. Crim. App. 2005). We commonly [*25] assume a ″more time to get things done.″ Id. at 130. A plurality of the strategic motive if any can be imagined and find counsel’s Court decided the judge’s remarks vitiated the defendant’s performance deficient only if the conduct was so outrageous presumption of innocence and were fundamental [*23] error that no competent attorney would have engaged in it. of constitutional dimension that required no objection. Id. at Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 131-32. Since Blue, the Court has explained it is without 2005). ″precedential value″ as a plurality opinion and may only be considered for any persuasive value it may have. The The court of criminal appeals has made clear that, in most complained-of comments and conduct in this case, however, cases,HN15 a silent record which provides no explanation did not implicate appellant’s ″presumption of innocence″ for counsel’s actions will not overcome the strong and were not made to a jury, so any ″persuasive value″ Blue presumption of reasonable assistance. Rylander, 101 S.W.3d could have is simply not present. at 110. Further, counsel should ordinarily be accorded the opportunity to explain his actions before being denounced Here, appellant did not object to any of the comments or as ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. conduct by the trial court that he complains about on appeal. Crim. App. 2012). Because the reasonableness of trial When the trial court asked if there was any reason why counsel’s choices often involve facts that do not appear in appellant should not be sentenced, defense counsel said, the appellate record, an application for writ of habeas corpus ″No, Your Honor.″ Because the record does not demonstrate is the more appropriate vehicle to raise ineffective assistance the unique circumstances that would allow us to review the of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 issues in the absence of objection, we conclude appellant (Tex. Crim. App. 2002). has failed to preserve these complaints for our review. We overrule issues seven, eight, and nine. In this case, appellant did not file a motion for new trial addressing the reasons for trial counsel’s actions and thus In issues ten through fifteen, appellant argues counsel has not developed a record showing why counsel failed to provided ineffective assistance at punishment by failing to object to the admission of the various evidence. Appellant’s object to evidence of the extraneous offense evidence. complaints may or may not be grounded in sound trial Specifically, he argues counsel failed to object to the strategy, but the record is silent as to trial counsel’s reasons

nanette hendrickson

Page 10 of 10 2015 Tex. App. LEXIS 8358, *25

for doing or failing to do the things of which appellant JUSTICE complains. Because the record [*26] provides no explanation Do Not Publish for counsel’s actions or inactions, appellant has not met his burden of overcoming the strong presumption of reasonable TEX. R. APP. P. 47.2(b) assistance. We overrule issues ten through fifteen. JUDGMENT We affirm the trial court’s judgment. Based on the Court’s opinion of this date, the judgment of /Molly Francis/ the trial court is AFFIRMED. Judgment entered August 10, 2015. MOLLY FRANCIS

nanette hendrickson