Brown v. State

LAMONTE WESLEY BROWN, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-16-00007-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: August 29, 2016

October 14, 2016

On Appeal from the 292nd District Court Dallas County, Texas

Trial Court No. F-1434606-V

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

A jury convicted Lamonte Wesley Brown of aggravated sexual assault of a five-year-old child, Eddy.¹ For this first degree felony offense, the trial court sentenced Brown to thirty years' imprisonment and ordered him to pay a $5,005.00 fine.² On appeal,³ Brown argues that the trial court improperly expressed its approval of the State's allegedly improper definition of reasonable doubt, the trial court improperly commented on the weight of the evidence by informing the jury that a witness was an expert witness, the trial court commented on the weight of the evidence by informing the jury that the State was asking a defense witness about a prior inconsistent statement, the trial court violated Brown's common-law right of allocution, and Brown's counsel rendered ineffective assistance.

We affirm the judgment of the trial court, because (1) the trial court did not express its approval of the State's definition of reasonable doubt, (2) Brown preserved no error regarding the trial court's calling a witness an "expert" or explaining that the State was inquiring about a prior inconsistent statement, (3) Brown preserved no error regarding the trial court's handling of Brown's right of allocution, and (4) ineffectiveness of Brown's trial counsel was not established.

(1) The Trial Court Did Not Express Its Approval of the State's Definition of Reasonable Doubt

During voir dire, the State objected when Brown's counsel told the venire that "[t]he only thing that can be is whether there is doubt or not." After making its objection, the State added, "It has to be beyond a reasonable doubt. The doubt has to be based on reason and common sense, not just anything." The trial court sustained the objection and asked Brown's counsel to "clear that up," which prompted Brown's counsel to explain, "The doubt has to be beyond a reasonable doubt. That's the standard, beyond a reasonable doubt." On appeal, Brown argues that, by sustaining the State's objection, the trial court adopted and improperly defined reasonable doubt as a doubt based on reason and common sense. We disagree.

The State's objection to Brown's statement was proper since "whether there is doubt or not" is certainly not the burden of proof in a criminal trial. The trial court sustained the State's objection, and Brown does not argue that the objection was incorrectly sustained. Instead, Brown argues that the trial court somehow expressed its approval of the State's allegedly improper definition. However, nothing in the reporter's record indicates that the trial court expressed its opinion of the State's extraneous statement one way or the other. Instead, the trial court gave Brown's counsel the opportunity to clarify the proper burden of proof. Because the trial court did not define reasonable doubt or adopt the State's definition of reasonable doubt, we find Brown's first point of error meritless and overrule it.⁴

(2) Brown Preserved No Error Regarding the Trial Court's Calling a Witness an "Expert" or Explaining that the State Was Inquiring about a Prior Inconsistent Statement

In two points of error, Brown argues that the trial court impermissibly commented on the weight of the evidence (1) by referring to the State's witness as an expert witness, and (2) by informing the jury that the State's questioning of a defense witness was in reference to a prior inconsistent statement. Since Brown failed to preserve these complaints, we overrule these two points of error.

Brown's complaint about the trial court's characterization of a witness as an "expert" involves an evidentiary ruling by the trial court. Before trial, the State designated employees of the Dallas Children's Advocacy Center (DCAC) as expert witnesses. At trial, the State called DCAC's clinical director, John Edmundson, to testify. Edmundson explained the process of grooming, reasons for delayed outcries, and changes in victim behavior following abuse. After this testimony, the State asked Edmundson whether he had treated Eddy. After Edmundson clarified that he did not treat the child, but that Eddy had received treatment at the DCAC, the following dialogue transpired:

Q. [By the State]: So the opinions that you've given here today, that's based on your training and experience?

[By the Defense]: Objection, Your Honor, the witness has no contact with this case. His testimony is irrelevant.

THE COURT: Overruled. Go ahead. He's an expert.

Q. [By the State]: The opinions that you've given here today, are they based on your own personal experience and what you've been trained in, your education, as well as the principles, established principles in your area of expertise?

A. Yes, ma'am, that's correct.

On appeal, Brown does not claim that the trial court's relevance ruling under Rule 702 of the Texas Rules of Evidence was incorrect.⁵ Instead, he argues that the trial court's ruling informed the jury that the witness was an "expert" and that this reference constituted a comment on the weight of the evidence because it "clearly vouched for the credibility and credentials of Edmundson."⁶ Brown did not preserve this issue.

"As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion . . . ." TEX. R. APP. P. 33.1(a)(1). "A defendant's right not to have the trial judge comment on the weight of the evidence or convey his opinion of the case is waived by the failure to object at trial." Nelson v. State, No. 05-09-01529-CR, 2011 WL 5027492, at *4 (Tex. App.—Dallas Oct. 24, 2011, no pet.) (mem. op., not designated for publication)⁷ (citing In re A.B., 133 S.W.3d 869, 876 (Tex. App.—Dallas 2004, no pet.)) see Havard v. State, 800 S.W.2d 195, 211 (Tex. Crim. App. 1989); Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983). Since the reporter's record demonstrates that Brown failed to preserve his second point of error, we overrule it.

Brown also complains that the trial court improperly informed the jury that the State was "examining a witness about a prior inconsistent statement." At trial, Brown's mother testified thatEddy remained silent when she spoke with him about the offense. The State attempted to impeach her, as demonstrated by the following dialogue:

Q. [By the State]: Okay. Well, do you remember talking to Detective [Stephen] Lee back on September 26, 2014?

A. Yes.

Q. Okay. And do you remember telling Detective Lee that you didn't know who to believe because [Eddy] had told her -- told you that the defendant, your son, put his penis into his mouth?

A. No.

Q. You didn't say that?

A. No.

Q. You didn't say that you had a conversation with [Eddy] that same night that he told his mama what happened?

[By the Defense]: Your Honor, objection.

THE WITNESS: No.

THE COURT: Hang on. Everybody stop, please. You have an objection?

[By the Defense]: The question has been asked five or six times already.

THE COURT: That objection is overruled. That objection is overruled as well. She's examining a witness about a prior inconsistent statement.⁸

Because the record demonstrates that Brown failed to object to the trial court's comment as a comment on the weight of the evidence, he failed to preserve this issue for our review. Accordingly, we overrule both of these points of error.

(3) Brown Preserved No Error Regarding the Trial Court's Handling of Brown's Right of Allocution

A defendant's statutory right of allocation is provided by Article 42.07 of the Texas Code of Criminal Procedure, which reads, "Before pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him." TEX. CODE CRIM. PROC. ANN. art. 42.07 (West 2006). Article 42.07 limits the right of allocution to circumstances where a defendant has been pardoned, is incompetent to stand trial, or when a defendant escapes and another person is brought to sentencing who is not the defendant. See id. Common law likewise affords a defendant the right to allocution, without the limitations imposed by the statutory right of allocution. See McClintick v. State, 508 S.W.2d 616, 618 (Tex. Crim. App. 1974); Brown v. State, No. 05-07-00816-CR, 2008 WL 1810315, at *4 (Tex. App.—Dallas Apr. 23, 2008, no pet.) (mem op., not designated for publication).⁹

Brown's sentence was assessed by the trial court. He testified during punishment, professed his innocence, and asked the trial court for mercy. Following the State's cross-examination, Brown's counsel invited Brown to "say whatever you have to say to the Judge." After pronouncing Brown's sentence, the trial court asked, "Is there any lawful reason why yourclient should not now be formally sentenced?" Brown's counsel responded, "[N]o, sir." On appeal, Brown argues that the trial court provided him with his statutory right of allocution, but violated his common law right of allocution.

The denial of the right of allocution must be preserved. See Graham v. State, 498 S.W.2d 197, 198 (Tex. Crim. App. 1973); Norton v. State, 434 S.W.3d 767, 771 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Jarvis v. State, 353 S.W.3d 253, 254 (Tex. App.—Fort Worth 2011, pet. ref'd); Brown, 2008 WL 1810315, at *4. The record demonstrates that Brown's complaint was not preserved. Accordingly, we overrule Brown's fourth point of error.

(4) Ineffectiveness of Brown's Trial Counsel Was Not Established

Brown also argues that his trial counsel rendered ineffective assistance because (A) he failed to object to the State's improper definition of reasonable doubt; (B) he affirmatively stated that he had no...