Hart v. State
| Decision Date | 13 May 2021 |
| Docket Number | NO. 14-19-00591-CR,14-19-00591-CR |
| Parties | Robert Earl HART, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Patrick F. McCann, Houston, for Appellant.
Kim K. Ogg, Houston, Eric Kugler, Heather Hudson, for Appellee.
Panel consists of Justices Wise, Bourliot and Spain
A jury convicted appellant Robert Earl Hart of first-degree murder and assessed punishment at 30-years imprisonment, including a fine in the amount of $5,000.00. Hart appeals his conviction and raises three issues on appeal: (1) Hart's counsel was ineffective by failing to suppress or object at trial to the admission of video surveillance footage during guilt-innocence; (2) Hart's counsel was ineffective when he rejected an instruction on sudden passion after the trial court offered to include it in the court's charge at punishment; and (3) the trial court erred when it failed to include, sua sponte, an instruction on sudden passion in the court's charge on punishment as part of the law of the case in the punishment phase of the trial. Because we conclude that Hart's trial counsel was ineffective by rejecting a sudden-passion jury instruction, we affirm the portion of the judgment regarding appellant's conviction, reverse the portion of the judgment of the trial court regarding punishment, and remand the case to the trial court for a new punishment hearing.
Ronald Lynn Ray was a former boyfriend of Hart's adult daughter, Stephanie. At trial, Stephanie testified that Ray was abusive, violent, and controlling. She also testified that he tried to isolate her from her family, including confiscating her cellular phone. Stephanie contacted law enforcement authorities on several occasions because she was concerned that Ray would harm her or her family members. Stephanie testified that she tried to leave Ray several times but he would not leave her alone.
In September 2016, Stephanie was staying at her parents' home. Ray drove up to the home uninvited while the family was having lunch. Ray parked across the street from Hart's home, took off his shirt and started to smoke a cigarette while standing outside his vehicle with the car door open. Hart came outside shortly thereafter and approached Ray with a handgun. Words were briefly exchanged, and then Hart pointed his gun at Ray and shot. Hart shot several more times as Ray ran away to hide behind his vehicle. Ray collapsed near the back of his vehicle minutes later. Though it was disputed by Hart at trial, the State introduced evidence that Hart attempted to stage a self-defense claim by placing a handgun in Ray's hand. Hart also told law enforcement that he believed he heard a gunshot before he fired his weapon.
Hart had several surveillance cameras on the front of his home, which captured the confrontation and shooting on video. This video was the foundation of the case for the State, as law enforcement witnesses testified that they did not intend to charge Hart with murder until they saw the surveillance video. Law enforcement gained access to the surveillance video because Hart's wife, Elizabeth, signed consent forms authorizing the Harris County Sheriff's Office, as well as the Harris County Constable, Precinct 3, the right to search and seize "any and all letters, papers, material and other property, which they desire."
A. Ineffective assistance of counsel claims
In issues one and two, Hart argues that his trial counsel was ineffective in failing to suppress or object at trial to the admission of video surveillance footage and by rejecting a jury instruction on sudden passion offered by the trial court.
To prevail on his claim that he did not receive effective assistance of counsel, Hart must show by a preponderance of the evidence that (1) his counsel's performance fell below an objective standard of reasonableness and (2) but for his counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Hernandez v. State , 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986) (adopting Strickland analysis). A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. 2052. A failure to make a showing under either prong defeats a claim for ineffective assistance. Id. at 700, 104 S.Ct. 2052.
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. To overcome this presumption, a claim of ineffective assistance must be firmly demonstrated in the record. See Thompson v. State , 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). In most cases, direct appeal is an inadequate vehicle for raising such a claim because the record is generally undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Id.
The record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law, and that no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of his or her subjective reasoning. Lopez v. State , 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Though Hart did not file a motion for new trial alleging ineffective assistance of counsel, there is a record of his counsel's reasoning that the parties rely on in their arguments.
In issue one, Hart challenges the jury's finding of guilt because he asserts his trial counsel was ineffective in failing to move to suppress or object at trial to the admission of video surveillance footage that was the basis for the State's case. Failure to file a motion to suppress does not per se constitute ineffective assistance of counsel. Wert v. State , 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The record reflects that Hart's trial counsel considered avenues for suppressing the video and ultimately did not believe he could support it. During pretrial proceedings, Hart's counsel informed the trial court that Elizabeth did not know what she was signing, but then later counsel stated that he did not have a motion to suppress because he had no evidence to support it. It is undisputed that Hart's counsel never attempted to elicit sworn testimony from Elizabeth on the topic.
Even we were to assume it was objectively unreasonable for Hart's counsel not to bring a motion to suppress under these circumstances, Hart cannot make the required showing under the second prong of the Strickland test. To succeed on this ineffective-assistance-of-counsel claim, Hart must show harm—that the trial court would have granted the motion to suppress. Jackson v. State , 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Hart argues that the trial court would have granted the motion because it was clear that Elizabeth did not understand or fully consent to the search and seizure. We disagree.
A search conducted pursuant to voluntary consent is an established exception to the constitutional-warrant requirement. See Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Texas law requires the State to prove voluntariness of consent to search by clear-and-convincing evidence. Reasor v. State , 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). The trial court must look at the totality of the circumstances surrounding the statement of consent to determine whether consent was given voluntarily. Id. We consider various factors in determining voluntariness of consent: age, education, and intelligence; any constitutional advice given, such as whether the consenting person had the option to refuse consent; whether the consenting person was in custody or restrained at the time, and the length of any such detention; and whether weapons were drawn. See id. (citing Schneckloth , 412 U.S. at 226, 93 S.Ct. 2041 ). An officer's testimony that consent was voluntarily given can be sufficient evidence to prove the voluntariness of the consent. See Martinez v. State , 17 S.W.3d 677, 683 (Tex. Crim. App. 2000).
Although Elizabeth testified in the punishment phase of trial, she did not testify regarding her lack of consent to the search. Elizabeth's signed consent was admitted into the record during trial. And the Harris County Sherriff's Deputy, Sofia Silva, who witnessed Elizabeth sign the second consent form, testified at trial. Deputy Silva advised Elizabeth that her consent was voluntary and allowed her as much time as she needed to read it. Elizabeth never asked any questions or sought any clarification as to the forms she was being asked to sign. Deputy Silva further testified that Elizabeth was not under arrest at the time she signed the form, was composed, and took approximately five minutes to review the form. The record also reflects that Elizabeth had already signed a similar consent form allowing the Harris County Constable, Precinct 3, to search the home. Though Elizabeth was sitting in the constable's vehicle during the discussion and signing of the consent forms, Elizabeth was a competent adult who was not detained or under duress, and she was advised of her option to refuse consent. We conclude that the State established Elizabeth's consent to the search by clear-and-convincing evidence. The only indication that Elizabeth may not have understood what she was signing was the statement made by Hart's counsel, which does not constitute evidence. See Delgado v. State , 544 S.W.2d 929, 931 (Tex. Crim. App. 1977).
Hart also argues that even if Elizabeth understood she was allowing officers to search her home, it was not established by clear-and-convincing evidence that that she had given consent for officers to search the family's surveillance equipment. The consent form signed by Elizabeth allowed law enforcement...
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