Davis v. State

• Decision Date: 25 February 2009
• Docket Number: No. PD-0613-08.,PD-0613-08.
• Parties: Donny Kevin DAVIS, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

278 S.W.3d 346

Donny Kevin DAVIS, Appellant v. The STATE of Texas.

No. PD-0613-08.

Court of Criminal Appeals of Texas.

February 25, 2009.

Warren L. Clark, Amarillo, for Appellant.

John L. Owen, Assistant District Atty., Amarillo, for State.

HOLCOMB, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, PRICE, WOMACK, JOHNSON, HERVEY, and COCHRAN, JJ., joined.

The court of appeals rejected appellant's claim that he was denied his Sixth Amendment right to the effective assistance of counsel at trial. We affirm the judgment of the court of appeals.

In August 2006, a Potter County grand jury returned an indictment charging appellant with burglary of a habitation under Texas Penal Code § 30.02(a)(2).¹ The indictment also alleged, for purposes of punishment enhancement, that appellant had two prior felony convictions.

Trial under the indictment was had before a jury on appellant's plea of not guilty. At the guilt stage of the trial, the State presented five witnesses: Justin Schimpf, appellant's accomplice;² Clifford Schraag, the complainant; Phyllis Thomas, Schraag's next-door neighbor; Thomas Miller, an assistant manager of an Amarillo pawn shop; and Marvin Hill, an Amarillo police officer.

Schimpf testified that, on June 22, 2006, at around noon, he and appellant burglarized an Amarillo apartment and stole, among other things, a black, slimline Sony "PlayStation 2" video-game player. Immediately after the burglary, according to Schimpf, he and appellant went to a "Cash America" pawn shop, where appellant pawned the video-game player.

Schraag testified that, on the afternoon of June 22, 2006, when he returned to his Amarillo apartment following work, he found that his apartment had been burglarized. He testified further that one of the items stolen was a black, slimline Sony "PlayStation 2" video-game player. Schraag's testimony continued:

Q: Did you notice [appellant] around your apartment on or about the 22nd of June 2006?

A: Yes. He had been pretty much lurking there all evening. I kept peeking out my window. I'd see him go about-the steps are right in front of my peephole, to upstairs. I'd see him go halfway up the steps. This was in the middle of the night, when I woke up, and then I couldn't go to sleep.

I would watch him go around the back, so I'd try to peek to see what he was doing out in the back in the dark. There was no reason for him to be back there, anyway. Then I'd see him come back in front of mine, kind of looking, trying to look in my windows, and then he'd go over to Phyllis and try to look in her windows.

* * *

Q: Once you saw Mr. Davis, and there was this behavior that you described as going on all evening, did you see anything else after that, or no?

A: When I left for work in the morning, he was still out there.

Q: He was—by "still out there," where did you see him?

A: Wandering in the parking lot of the apartments.

Thomas testified that she was acquainted with appellant and that she had "seen him ... around the apartments" on a few occasions.

Miller testified that, on June 22, 2006, appellant entered the "Cash America" pawn shop that he managed and sold to him a black, slimline Sony "PlayStation 2" video-game player.

Finally, Hill testified that the pawn shop that Miller managed was "in [the] same neighborhood as where the burglary occurred." He testified further that, during the course of his investigation of the burglary, he had asked Thomas, her neighbor Betty Sellers, and Jacob Pantoya, a maintenance worker at the apartment complex, "what they had seen that morning," and all three of them had told him "that they had seen [appellant] at the complex." Hill also testified that, during his investigation of the burglary, he had interviewed appellant. His testimony continued:

Q: And ... what did [appellant] have to say to you [about the burglary]?

A: He stated that he had been in the area where the burglary had occurred. He had met up with a white guy that he knew just from around the neighborhood. They walked to the area where the burglary had occurred, but he stated that he did not commit the burglary. That he had gone to a different location, and a short time later the white guy that he had been with came and found him and asked him to go pawn a PlayStation that the white guy had in his possession at this time.

Q: And who [did appellant say] was this white guy?

A: That was Justin Schimpf.

Although Schimpf was obviously an accomplice witness³ whose testimony was important to the prosecution, appellant's trial counsel did not request an instruction on accomplice-witness testimony. See Tex. Code Crim. Proc. art. 38.14.⁴ Nor did the trial court, on its own motion, instruct the jury on accomplice-witness testimony.

After hearing all the evidence at the guilt stage, the jury found appellant guilty as charged in the indictment. After hearing additional evidence at the punishment stage, the jury assessed appellant's punishment, enhanced by two prior felony convictions, at imprisonment for 67 years.

Appellant later filed a motion for new trial, in which he argued that: (1) the trial court erred in failing to instruct the jury on accomplice-witness testimony and (2) he was denied his Sixth Amendment right to the effective assistance of counsel because his trial counsel failed to request an accomplice-witness instruction. With respect to his ineffective-assistance claim, appellant, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), argued that "trial counsel's failure to request an instruction on accomplice witness testimony was not the result of any plausible, sound trial strategy but rather, was [the result] of neglect." He argued further that he was prejudiced by trial counsel's deficient performance:

"Schimpf's testimony was essential to the State's prosecution.... Because the outcome [of the guilt stage] depended so heavily on the accomplice testimony alone, defense counsel's failure [to request an instruction on] accomplice witness [testimony] allowed the jury to ... base its verdict on Schimpf's testimony alone, without regard to the sufficiency of the corroborating evidence. Thus, trial counsel's failure ... rendered counsel's performance ... prejudicial to the point that ... [t]here is a reasonable probability that the result of the proceeding could have been different but for this deficiency."

Attached to appellant's motion for new trial was an affidavit from his trial counsel, in which counsel admitted that his failure to request an instruction on accomplice-witness testimony was an inexplicable oversight and "not the result of any trial strategy."

The trial court failed to hold a hearing on appellant's motion for new trial, and the motion was eventually denied by operation of law. See Tex.R.App. Proc. 21.8(c).

On direct appeal, appellant argued that: (1) "the trial court abused its discretion in failing to hold an evidentiary hearing on [his] motion for new trial"; (2) "the trial court's failure to instruct the jury as to accomplice-witness testimony [was] error" and caused him "egregious" harm; and (3) trial counsel's failure to request an instruction on accomplice-witness testimony denied him his Sixth Amendment right to the effective assistance of counsel. The State argued in response that: (1) "[t]he trial court did not abuse its discretion in not having a hearing on [appellant's] motion [for new trial]" because "the trial court could ... have passed upon the ... motion based solely on the record"; (2) "[g]iven the state of the evidence [presented at the guilt stage], it cannot creditably be said appellant suffered egregious harm from the [trial court's failure to instruct the jury on accomplice-witness testimony]"; and (3) "[trial] counsel was not ineffective in failing to request [an accomplice-witness] instruction" because "[t]he evidence corroborating accomplice Schimpf's testimony was ample."

The court of appeals agreed with appellant that the trial court erred in failing to instruct the jury on accomplice-witness testimony but concluded that "the error did not rise to the level of egregiousness" because "sufficient non-accomplice evidence existed to connect appellant to the burglary." Davis v. State, No. 07-07-0025-CR, 2008 WL 55110 (Tex.App.-Amarillo, Jan. 4, 2008), slip op. at 5 (not designated for publication).⁵ The court of appeals also agreed with appellant that the trial court abused its discretion in not holding a hearing on his motion for new trial. Id. at 7. To remedy the situation, the court of appeals reversed the denial of appellant's motion for new trial, abated his appeal, and remanded the case to the trial court for a hearing on his motion for new trial. Ibid. The court of appeals also ordered the trial court "to execute findings of fact and conclusions of law addressing [appellant's] claim of ineffective assistance." Ibid.

On remand, the trial court, as ordered, held an evidentiary hearing on appellant's motion for new trial. At that hearing, trial counsel testified that, during the course of appellant's trial, he "became aware" that Schimpf was an accomplice witness as a matter of law but, through oversight, he failed to request a jury instruction on accomplice witness testimony. In his words, "it just flat out did not occur" to him to request such an instruction.

At the close of trial counsel's testimony, appellant argued to the trial court that: (1) trial counsel's failure to request an instruction on accomplice-witness testimony constituted deficient performance and (2) trial counsel's failure prejudiced his defense because it allowed the jury to "convict solely on the testimony of Justin Schimpf." The State argued in response that: (1) trial counsel's failure to request an instruction on accomplice-witness testimony did not constitute deficient performance because it was merely "one procedural lapse" in an otherwise "spirited defense" and (2) even if trial couns...