Dewitt v. State

651 S.W.3d 669

Daniel Reshaw DEWITT, Appellant

v.The STATE of Texas, Appellee

NO. 14-21-00440-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed July 21, 2022

Jessica Alane Caird, Kim K. Ogg, Houston, for Appellee.

Joseph W. Varela, Houston, for Appellant.

Panel consists of Justices Jewell, Zimmerer, and Hassan

Jerry Zimmerer, Justice

Appellant Daniel Reshaw Dewitt appeals his conviction for aggravated robbery by threat with a deadly weapon in three issues. See Tex. Penal Code § 29.03(a)(2). In his first issue appellant argues that he was denied effective assistance of counsel during the punishment phase of his trial when his trial counsel failed to lodge a Confrontation Clause objection to the admission of jail disciplinary records. We overrule this issue because appellant has not demonstrated that his trial counsel's performance was deficient. Appellant argues in his second and third issues that the trial court abused its discretion during the punishment phase of his trial when it admitted parole records and jail disciplinary records into evidence. Concluding appellant did not preserve those complaints in the trial court, we overrule his second and third issues and affirm the trial court's judgment.

BACKGROUND ¹

Appellant was charged with aggravated robbery by threat with a deadly weapon. The State included one punishment-enhancement allegation in the indictment. A jury found appellant guilty of robbing the complainant at pistol point. Appellant elected to have his punishment assessed by the trial judge.

During the ensuing punishment phase of appellant's trial, the State sought to admit, among other exhibits, State's Exhibit 53 and State's Exhibit 69. State's Exhibit 53 consists of 66-pages of Harris County Jail disciplinary records pertaining to appellant. Appellant's trial counsel objected to the admission of the records into evidence stating that "no predicate [had been] laid and additionally to relevance of disciplinary records to this case, Judge." The trial court overruled the objections and admitted the records. State's Exhibit 69 consists of certified copies of parole records for "Dewitt, Daniel Re'shard TDCJ#01589439/SID#07275563." Appellant's trial counsel objected to the "lack of predicate, to hearsay and to relevance, Judge." The trial court examined the exhibit, and then stated: "Okay. All right. State's Exhibit 69 is admitted."

During closing argument, the State emphasized appellant's long criminal history. The State argued that appellant "was on parole for ... two robberies when he was charged with the felon in possession of a weapon, a third degree felony." The State continued that appellant had, "while on parole, three new law violations." The State's argument went on that appellant was "given another chance on bail for felon in possession of a weapon and picks up another new law violation, another chance to do well and disrespecting the system by failing to even abide by the conditions of bail." The State's argument continued that "while this defendant's been in custody, we also admitted to your Honor 66 pages of jail disciplinary records involving this defendant, that these records were also examples of how this defendant has even been in custody." The State then argued that

this is 16 years of criminal activity. [Appellant] is now 32 years old and for half of his life he has been in touch with the criminal justice system. Judge, we know this defendant's past, we know his present and, Your Honor, at this time you're charged with deciding his future. This defendant is 15 to 99 or life and up to a $10,000 fine. Judge, this defendant is exactly the type of violent offender that we hear about on the news. He's graduated from -- all the way from evading and possession of marijuana all the way to brandishing a firearm and demanding property from [the complainant].

The State concluded its argument by pointing out to the trial court that appellant was "not someone who has shown this Court by any means that he wants to do better, that he wants to be a contributing member of this society. Your honor, we are asking you to sentence this defendant to no less than 40 years."

At the conclusion of the closing arguments, the trial court found the enhancement paragraph true. The trial court then sentenced appellant to 25 years in prison. Appellant did not file a motion for new trial. This appeal followed.

ANALYSIS

I. Appellant has not shown that he received ineffective assistance of counsel.

Appellant argues in his first issue that his trial counsel rendered ineffective assistance of counsel because he did not object to the admission of State's Exhibit 53, the Harris County Jail disciplinary records, on hearsay and Confrontation Clause grounds. The jail records contain brief descriptions of the circumstances and events related to each disciplinary incident that were prepared by jail corrections officers.

A. Standard of review and applicable law

In reviewing claims of ineffective assistance of counsel, we apply a two-part test. See Salinas v. State , 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). To establish ineffective assistance of counsel, an appellant must prove by a preponderance of the evidence that (1) his trial counsel's representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Id.

An accused is entitled to reasonably effective assistance of counsel. King v. State , 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) ; Bradley v. State , 359 S.W.3d 912, 916 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). Reasonably effective assistance of counsel does not mean error-free representation. Ex parte Felton , 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). Isolated instances in the record reflecting errors of omission or commission do not render counsel's performance ineffective, nor can ineffective assistance of counsel be established by isolating one portion of trial counsel's performance for examination. Wert v. State , 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Therefore, when evaluating a claim of ineffective assistance, we consider the totality of the representation and the particular circumstances of the case. Lopez v. State , 343 S.W.3d 137, 143 (Tex. Crim. App. 2011) ; Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

There is a strong presumption that trial counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. Salinas , 163 S.W.3d at 740. It is not sufficient that an appellant show, with the benefit of hindsight, that his counsel's actions or omissions during trial were merely of questionable competence. Lopez , 343 S.W.3d at 143. Instead, in order for an appellate court to conclude that counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in the trial record and the court must not engage in retrospective speculation. Id. at 142. When such direct evidence is not available, we will assume trial counsel had a strategy if any reasonably sound strategic motivation can be imagined. Id. at 143.

Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.

Menefield v. State , 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Unless trial counsel has had an opportunity to give specific explanations for his decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When no reasonable trial strategy could justify trial counsel's conduct, however, trial counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel's subjective reasons for acting as he did. Lopez v. State , 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). In other words, when trial counsel has not had an opportunity to explain his actions or inactions, an appellate court cannot find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

B. Appellant has not shown that the record is sufficient to overcome the presumption of competence.

In his first issue, appellant argues that he received ineffective assistance of counsel because his trial counsel failed to lodge hearsay and Confrontation Clause objections to portions of State's Exhibit 53, the Harris County Jail disciplinary records. As mentioned above, appellant did not file a motion for new trial asserting that his trial counsel was ineffective. Therefore, his trial counsel was not given an opportunity to explain his actions, or inactions, during appellant's trial. Despite this, appellant argues the existing record is sufficient on appeal because "there is no scenario imaginable where allowing testimonial statements in appellant's disciplinary cases into evidence would reflect any sound trial strategy." We disagree.

While appellant mentions his trial counsel's failure to lodge a hearsay objection as one of his trial counsel's alleged deficiencies, he focuses his entire argument under his first issue on his trial counsel's failure to object on Confrontation Clause grounds. Because hearsay and the Confrontation Clause are separate grounds to object to the admission of evidence, we conclude appellant has waived his hearsay complaint due to failure to properly brief the issue. See Tex. R. App. P. 38.1(i) ; Paredes v. State , 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (noting that a hearsay objection did not preserve Confrontation Clause claims); Ford v. State , 179 S.W.3d 203, 207 (Tex. App.—Houston [14th Dist.] 2005, pet....