Pope v. State, No. 05-02-01745-CR (Tex. App. 12/31/2003), 05-02-01745-CR
| Decision Date | 31 December 2003 |
| Docket Number | No. 05-02-01745-CR,05-02-01745-CR |
| Parties | ROBBY KEITH POPE, Appellant v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th District Court, Collin County, Texas, Trial Court Cause No. 296-80912-02.
Affirm.
Before Justices MORRIS, O'NEILL, and LANG.
Robby Keith Pope appeals his conviction of indecency with a child. After finding appellant guilty, the jury assessed punishment, enhanced by a prior felony DWI, at fifty years' imprisonment. Appellant raises seven issues on appeal. In his first four issues, appellant contends that his sentence was improperly enhanced. In his fifth issue, appellant claims ineffective assistance of counsel and in his sixth issue, factual insufficiency. Finally, in a seventh issue, appellant urges this Court to abrogate the factual sufficiency standard of review in favor of another standard appellant deems to be fair. For the reasons below, we affirm the trial court's judgment.
On February 23, 2002, appellant was in a Galyan's department store when a store employee, Lee Kube, saw appellant "pop up" from the floor just a foot away from a women's dressing room door. Kube alerted John Torres, the head of store security, of appellant's suspicious behavior and continued to observe appellant from the sales floor. Meanwhile, Torres monitored and recorded appellant from the security camera system, zooming in on the appellant and rotating the camera when necessary. Both witnesses observed appellant approach the seven-year-old complainant and her young siblings. They saw appellant reach under complainant's dress and touch her on the thigh, near her buttocks. Both witnesses also observed that appellant had an erection that was evident through his trousers. They saw that as complainant walked by, appellant leaned his hips toward her and bumped her shoulder area with his genitals. After discovering appellant masturbating in a dressing room a few minutes later, Torres detained appellant and contacted the police. Appellant was arrested and charged with indecency with a child. Ten days before trial, the State filed its intent to seek enhanced punishment using appellant's third DWI conviction as a prior felony enhancement. After a jury found appellant guilty, he elected to have the jury assess his punishment and testified to the court that he understood the State intended to ask for enhanced punishment based on a third DWI conviction. The jury found the enhancement true and assessed punishment within the enhanced range. This appeal followed.
In his first four issues, Appellant argues that (1) his prior conviction should be treated as a misdemeanor, not a felony; (2) use of the enhancement violated appellant's due process rights; (3) the State introduced the enhancement without leave of the court; and (4) the punishment trial was a nullity, or alternatively, the punishment charge was void because appellant did not plead to the enhancement.
The law in Texas is well-settled that a prerequisite to presenting a complaint on appeal is a timely, specific objection at trial. Tex. R. App. P. 33.1(a); Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999); see Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998); Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994); Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988). The failure to object can waive even an error involving constitutional rights. Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); cf. Cole v. State, 931 S.W.2d 578, 580 (Tex. App.-Dallas 1995, pet. ref'd) ().
Here, the record shows that appellant failed to object to the sentence enhancement before the trial court. Ten days before trial, appellant received the State's written notice that it intended to introduce evidence of his felony conviction in order to seek an enhanced sentence. He did not object. Nor did appellant object at the guilt/innocence phase of trial when the State mentioned the enhancement during voir dire. Appellant did not object during the sentencing phase when the trial court admitted the evidence, nor when the State discussed the enhancement in closing argument. Without a specific objection, a trial court has no opportunity to correct any error. See Tex. R. App. P. 33.1(a)(1); Limon v. State, 838 S.W.2d 767, 769 (Tex. App.-Corpus Christi 1993, pet ref'd).
As to appellant's complaint that he entered no plea to the enhancement, the record shows that at the outset of trial, appellant was aware the State intended to prove his prior felony conviction in order to seek an enhanced sentence. Upon announcing ready for trial, appellant identified himself as the same person charged and stipulated that he understood the charges and intended to plead not guilty. Appellant also waived further formal arraignment, thereby waiving any complaint that he entered no plea to the enhancement. See Richardson v. State, 508 S.W.2d 380, 381 (Tex. Crim. App. 1974). Therefore, we conclude appellant has not preserved any issue for appeal on these points. Accordingly, we resolve appellant's issues one, two, three, and four against him.
In issue five, appellant argues that he received ineffective assistance of counsel because trial counsel failed to make the objections necessary to preserve error for his first four issues respecting enhancement.
To prevail on an ineffective assistance of counsel claim, appellant must show: (1) counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that a different outcome would have resulted but for counsel's error. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In cases where appellant claims an objection was necessary, appellant must identify the specific objection that counsel should have made and provide authority in support of his argument that the objection would have been meritorious. Ryan v. State, 937 S.W.2d 93, 98 (Tex. App.-Beaumont 1996, writ ref'd). It is appellant's burden to prove, by a preponderance of the evidence, there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When facing a silent record as to defense counsel's strategy, the court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. See Jackson, 877 S.W.2d at 771. Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814.
Appellant did not file a motion for new trial on ineffective assistance of counsel grounds. Thus, the record provides no explanation of the reasoning behind counsel's decisions not to object. Appellant concludes, without citing support in the record, that no trial strategy could justify trial counsel's failure to attack the enhancement paragraph.
Appellant first argues that counsel's performance was ineffective for failing to object to the State's classification, and use, of appellant's third DWI conviction as a felony. The record shows that appellant did not dispute the authenticity of his third DWI conviction. Rather, appellant argues that because his third DWI offense occurred before the Legislature designated the offense as a third degree felony, this offense should be classified as a misdemeanor and may not be used for sentence enhancement. However, the Texas Penal Code classifies offenses outside the code as "felony of the third degree" if imprisonment in a penitentiary is a possible punishment. Tex. Pen. Code Ann. § 12.41 (Vernon 2003). The relevant statute clearly contemplated penitentiary imprisonment as an option for appellant's 1993 third DWI conviction. Act of May 27, 1983, 68th Leg., R.S., ch. 303 § 3(e)(2), 1983 Tex. Gen. Laws 1568, 1576. Therefore, appellant has failed to meet his burden of proving that there was no plausible professional reason for failing to object.
Next, appellant argues counsel's performance was ineffective for failing to object to the State offering an enhancement paragraph without leave of the court. Appellant cites no case law, nor have we found any, showing that the State was required to obtain leave of the court before introducing the enhancement. An enhancement paragraph need not be alleged in the indictment, but the State must plead the enhancement in some form. See Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); Riney v. State, 60 S.W.3d 386, 388 (Tex. App.-Dallas 2001, no pet.). The State did so by filing its "Notice of Intent to Sentence Defendant Under the Habitual Offender Provision of TPC 12.42(b)" ten days before trial. Thus, appellant has failed to prove by a preponderance of the evidence that counsel had no plausible professional basis for failing object to the enhancement paragraph.
As to appellant's arguments concerning due process and failure to plead to the enhancement, the record shows appellant had ten days' written notice that the State planned to introduce a sentence enhancement based on felony DWI. When announcing ready for trial, appellant identified himself as the same person charged, stipulated that he...
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