Sledge v. State
| Decision Date | 26 August 2021 |
| Docket Number | No. 05-19-01398-CR, No. 05-19-01485-CR, No. 05-19-01399-CR,05-19-01398-CR |
| Citation | 637 S.W.3d 770 |
| Parties | Donnell SLEDGE, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
637 S.W.3d 770
Donnell SLEDGE, Appellant
v.
The STATE of Texas, Appellee
No. 05-19-01398-CR
No. 05-19-01399-CR
No. 05-19-01485-CR
Court of Appeals of Texas, Dallas.
Opinion Filed August 26, 2021
Christie Merchant, Longview, for Appellant.
Donnell Sledge, Pro Se.
Jaclyn O'Connor Lambert, John Creuzot, Dallas, Jennifer Balido, for Appellee.
Before Justices Schenck, Reichek, and Carlyle
OPINION
Opinion by Justice Schenck
Donnell Sledge was tried before a jury and found guilty of possession with intent to deliver heroin, possession with intent to deliver cocaine, and unlawful possession of a firearm by a felon. The first two offenses were enhanced by his status as a habitual offender and the use of a firearm during a drug offense, while the third offense was enhanced only by his status as a habitual offender. He was sentenced to twenty-eight years’ confinement in each case, with the sentences to run concurrently. In four issues, appellant urges his trial counsel was ineffective, the jury instructions were erroneous, his court costs were improperly assessed in the judgments in trial cause numbers F17-56046 and F17-56048, and all three judgments fail to correctly reflect his jail credits. In a single cross-issue, the State requests modification of the judgments in F17-56047 and F17-56048. As modified, we affirm the trial court's judgments of conviction and reverse and remand for a new punishment hearing in all three cases.
BACKGROUND
On the evening of June 27, 2017, approximately ten to fifteen people, including appellant, were playing dice in a field near an apartment complex. Witnesses heard an argument between appellant and another participant, Demarcus Johnson. After the two men's argument appeared to have calmed down, Johnson's mother, Margaret Hamilton, walked toward the field, yelling, "I'm fittin’ to shut the block down." A few minutes later, Hamilton, Johnson, Hamilton's two other sons, and some of their friends all ran inside the apartment complex and into a unit before shutting the door. Witnesses sitting outside the apartment watched appellant arrive at a run, while brandishing a gun, and enter the same apartment. Appellant exited the apartment to demand of the witnesses there that they inform him of where Hamilton was. When he did not locate Hamilton, appellant left the apartment in a car driven by another individual.
Appellant then proceeded down the street to the apartment complex where Hamilton lived. Appellant approached four individuals sitting on a porch in front of Hamilton's apartment complex and asked where she was. When they did not respond, he walked past them and into the apartment complex where he fired shots into the hallway, kicked in the screen door to one unit, held his gun up to the head of the man who opened the door behind the screen, and demanded to know where Hamilton was. Appellant only left when he heard someone out in the hallway say that the police were on their way.
Police officers arrived in response to the reports of gun shots, spotted what was identified by a witness as appellant's vehicle, and initiated a traffic stop of the vehicle. The vehicle pulled into the parking lot of a convenience store. Appellant got out of the car and began walking towards the store. The police officers ordered the female driver of the vehicle to remain in the car and detained appellant in the parking lot. Officers who arrived after appellant had been detained directed the female driver to get out of the car and conducted a protective sweep of the vehicle for weapons, during which they found a pistol on the driver's side floorboard, and a bag containing several smaller bags of what appeared to be illicit drugs on the passenger's side. After confirming the substances
were narcotics, the police arrested appellant, searched him, seized more than $3,000 in cash, and placed him in the back of a squad car.
Appellant was charged by indictment with the offenses of possession with intent to deliver four grams or more but less than 200 grams of heroin, possession with intent to deliver four grams or more but less than 200 grams of cocaine, and unlawful possession of a firearm by a felon.1 The indictments also alleged that (1) appellant was a habitual offender and (2) he used or exhibited a deadly weapon during the commission of the drug offenses. Appellant pleaded "not guilty," and the cases proceeded to trial before a jury who found appellant guilty of all three offenses. In response to enhancement paragraphs in each case alleging appellant was a habitual offender and to the deadly-weapon paragraphs in the drug offenses, the jury found all "not true." Appellant requested a new trial in all three cases, which was granted without any specific grounds identified.
Appellant's cases proceeded to a second trial before a jury who found appellant guilty of all three offenses. After sentencing proceedings, the jury found the enhancement paragraphs true and sentenced appellant to 28 years’ confinement in each case, with the sentences to run concurrently.
DISCUSSION
I. Ineffective Assistance of Counsel
In his first issue, appellant challenges the effectiveness of his trial counsel's assistance, arguing his counsel erred by failing to object to the State's deadly weapon and habitual offender allegations at his second trial. He urges that his counsel should have asserted collateral estoppel or issue preclusion as a bar to these enhancements because the jury from appellant's first trial found them not true. The State responds the doctrine of collateral estoppel should not apply to the first jury's findings of not true at appellant's first trial, arguing appellant's first trial did not result in a final judgment because his conviction was reversed after the grant of new trial on unspecified grounds.
To obtain a reversal because of ineffective assistance, appellant must show: (1) that counsel's performance was so deficient that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) that there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Garza v. State , 213 S.W.3d 338, 347 (Tex. Crim. App. 2007).
There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson , 9 S.W.3d at 813. In most instances, a silent record that provides no explanation for counsel's actions or inactions will not overcome the strong presumption of reasonable assistance. Id. at 814. When the record clearly confirms that counsel could have deliberately selected a course of action prejudicing the defendant, speculation is unnecessary. See
Weeks v. State , 894 S.W.2d 390, 392 (Tex. App.—Dallas 1994, no writ). Conversely, where no conceivable trial strategy could justify counsel's actions, such as where the defendant is automatically entitled as a matter of law to an acquittal or to the denial of the enhancement of his offense, the question can be resolved as a matter of law. See Conrad v. State , 77 S.W.3d 424, 426 (Tex. App.—Fort Worth 2002, pet. ref'd).
The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. It is well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted of the crime charged. See Rollerson v. State , 227 S.W.3d 718, 729 (Tex. Crim. App. 2007).
No one would question that where the State has pursued an offense to a final judgment of acquittal, it may not initiate a new prosecution premised on the same factual theory though framed as a technically different charge. In Ashe v. Swenson , the Supreme Court recognized that the Fifth Amendment guarantee against double jeopardy embodies the principle of collateral estoppel. 397 U.S. 436, 446, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) ("whatever else that constitutional guarantee may embrace, it surely protects a man who has been acquitted from having to ‘run the gauntlet’ a second time").
Under the collateral-estoppel component of double jeopardy, the government may not litigate a specific elemental fact to a competent factfinder (judge or jury), receive an adverse finding, learn from its mistakes, hone its prosecutorial performance, and relitigate that same question of fact. Rollerson , 227 S.W.3d at 730. The collateral-estoppel question becomes more difficult where a jury renders either an inconsistent or incomplete verdict with the potential for factual overlap. In that situation, the defendant may argue that the affirmative answers in his or her favor should rationally compel...
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