State v. Provost

• Decision Date: 15 June 2006
• Docket Number: No. 14-05-00537-CR.,14-05-00537-CR.
• Citation: 205 S.W.3d 561
• Parties: The STATE of Texas, Appellant, v. Victor PROVOST, Appellee.
• Court: Texas Court of Appeals

205 S.W.3d 561

The STATE of Texas, Appellant, v. Victor PROVOST, Appellee.

No. 14-05-00537-CR.

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

June 15, 2006.

Rehearing Overruled August 10, 2006.

COPYRIGHT MATERIAL OMITTED

Joel H. Bennett, Galveston, for appellant.

Thomas W. McQuage, Galveston, for appellee.

Panel consists of Justices HUDSON, FOWLER, and SEYMORE.

OPINION

J. HARVEY HUDSON, Justice.

The State appeals the trial court's granting a motion for new trial and setting aside the conviction of Victor Provost, appellee, for possession of a controlled substance. We vacate the order granting the motion for new trial and remand the cause to the trial court to enter judgment of conviction in accordance with the jury's verdict.

BACKGROUND

Appellee entered a plea of "not guilty" to the offense of possession of a controlled substance and proceeded to a jury trial. During the cross-examination of one of the arresting officers, appellee's trial counsel sought to introduce the police report. The police report referred to appellee as "a documented and well know[n] member of the bloods gang and a drug dealer." In the following exchange among the trial judge, appellee's trial attorney, and the prosecutor, the prosecutor pointed out the statement in the police report to the trial judge and appellee's attorney:

MR. BURKS [appellee's attorney]: I would like to offer Defendant's exhibit 1.

(At the Bench, on the record:)

MS. CHESLEY [the prosecutor]: Your Honor, I have no objection to him admitting this but he needs to be fully aware that the [first] paragraph states that victim [sic] is a well known member of the bloods gang and a drug dealer.

MR. BURKS: I understand that, Your Honor. I'm offering it so obviously I understand.

THE COURT: Okay. Is this part of your strategy?

MR. BURKS: Yes.

THE COURT: Okay.

MS. CHESLEY: No objection.

The police report, in its entirety, was admitted into evidence. The jury found appellee guilty of possession of a controlled substance. Prior to the start of the sentencing phase of the trial, appellee filed a motion for instructed verdict, which the trial court denied. Appellee also filed a motion to reconsider the denial of his motion for a directed verdict, which the trial court also denied.

The trial court sentenced appellee to 10 years' incarceration in the Texas Department of Criminal Justice, Institutional Division. After sentencing, appellee filed a motion for new trial challenging the legal sufficiency of the evidence supporting his conviction. Appellant's motion for new trial also cited Article 38.17 of the Texas Code of Criminal Procedure, which requires the trial court to direct a verdict of acquittal when two witnesses are not called as required by law and when accomplice witnesses testimony must be corroborated by the circumstances. TEX.CODE CRIM. PROC. art. 38.17 (Vernon 2005).

On May 6, 2005, the trial court granted appellee's motion for new trial. When granting the motion, the trial court struck through the phrase in the order, "the Court finds the evidence insufficient to support the verdict." On May 25, 2005, the trial court also made the following findings of fact and conclusions of law explaining that its ruling was based on ineffective assistance of counsel for introducing the police report containing the statement referring to appellee as "a documented and well know[n] member of the bloods gang and a drug dealer":

I. FINDINGS OF FACT

1. The defendant, Victor Provost, was tried by a jury for the felony offense of possession of a controlled substance, namely, cocaine, in an amount of four grams or more but

less than 200 grams—with enhancement. The trial began on March 17, 2005.

2. The attorney representing the defendant, Gerald Burks offered the arresting officer's offense report into evidence as Defendant's Exhibit No. 1 during the guilt-innocence phase of the trial.

3. The State's attorney, Karen Chesley, asked the Court for a sidebar conference. At the bench, outside the hearing of the jury, Ms. Chesley stated that State had no objections but wanted to point out to the Court and to Mr. Burks that the offense report stated that the defendant is a well know member of the Bloods gang and a drug dealer.

4. Mr. Burks stated that he understood that and still wanted to introduce the offense report into evidence.

5. The Court asked Mr. Burks if this decision was part of this trial strategy.

6. Mr. Burks stated that it was.

7. Mr. Burks did nothing during the remainder of the trial to indicate that introducing the evidence of the defendant's being a known drug dealer and member of the Bloods gang was part of his trial strategy. He never referred to, alluded to or explained anything about that information to the jury.

8. The jury returned a verdict of guilty for Mr. Provost on March 18, 2005.

9. On May 5, 2005 the Court granted the defendant's Motion for New Trial.

II. CONCLUSIONS OF LAW

1. The evidence of the Defendant's being a known drug dealer and member of the Bloods gang was extremely prejudicial. That prejudice far outweighed any probative value.

2. The defense attorney, Gerald Burks, was ineffective in his representation of Mr. Provost by introducing to the jury the information that his client, Victor Provost, was a known drug dealer and member of the Bloods gang during the guilt-innocence phase of the trial.

TRIAL COURT'S JURISDICTION IN GRANTING A MOTION FOR NEW TRIAL

In its first issue, the State contends that because the ground on which the trial court granted the motion for new trial, i.e., ineffective assistance of counsel, was not raised in appellee's motion, the trial court was without authority to order a new trial. Appellee responds by arguing that the State's position is at odds with jurisprudence that preserves the defendant's right to counsel "from implied waiver by procedural default." Appellee further claims the State's contention that the trial court lacked authority to grant a new trial on a ground not raised in the motion for new trial fails to consider the trial court's independent duty to ensure the defendant's constitutional right to counsel by ordering a new trial when justice has not been done.

While appellant's general suppositions are true, they have no relevance to the point at issue.¹ We recognize that a defendant may raise ineffective assistance of counsel in a motion for new trial even though it is not a ground specifically enumerated in Rule 21.3 of the Rules of Appellate Procedure.² State v. Gonzalez, 855 S.W.2d 692, 694 (Tex.Crim.App.1993) (citing Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App.1993)). Similarly, the trial court may grant a motion for new trial in the interest of justice even though it is not one of the grounds for granting a new trial specifically enumerated in rule 21.3. Id.

However, appellee's argument that the trial court can grant a motion for new trial in the interest of justice does not advance his case here because a defendant must allege sufficient grounds (even if they are not enumerated in rule 21.3) to apprise the trial judge and the State as to why he believes himself entitled to a new trial. Id. at 694-95.³ Moreover, it is well settled that a motion for new trial in a criminal case may be granted only on the defendant's timely motion—the trial court has no authority to grant a new trial on its own motion. Ex parte Ybarra, 629 S.W.2d 943, 945 (Tex.Crim.App.1982); Zaragosa v. State, 588 S.W.2d 322, 326-27 (Tex.Crim. App.1979).

Here, appellee did not raise ineffective assistance of counsel in his motion for new trial. Thus, the trial court lacked authority to order a new trial on ineffective assistance of counsel. Moreover, because the trial court had no authority to grant a new trial on a ground not raised by the defendant in his motion, its findings of fact and conclusions of law setting forth the ineffective assistance ground are not relevant.

Nevertheless, we will uphold the trial court's judgment if any appropriate ground exists to support it. State v. Belcher, 183 S.W.3d 443, 447 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Thus, we must still address the grounds raised in appellee's motion for new trial even though it is apparent the trial court did not grant a new trial on those grounds.

MOTION FOR NEW TRIAL STANDARD OF REVIEW

The granting of a motion for new trial is a matter within the trial court's discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App.1995). The reviewing court does not substitute its judgment for that of the trial court, but, instead, decides whether the trial court's decision was arbitrary or unreasonable. Id. We will reverse only when the trial court's decision was clearly wrong and outside the zone of reasonable disagreement. Gonzalez, 855 S.W.2d at 694 n. 4. The ruling of the trial court is presumed correct and the burden rests on the State to establish the contrary. Kelley, 20 S.W.3d at 150-51 (citing Lee v. State, 167 Tex. Crim. 608, 322 S.W.2d 260, 262 (1958)).

LEGAL SUFFICIENCY OF THE EVIDENCE

Appellee argues we should apply a factual sufficiency standard of review. Appellee, however, did not assert factual insufficiency, but, instead, legal insufficiency. Thus, we will address the legal sufficiency ground as asserted in appellee's motion for new trial. When deciding a motion for new trial challenging the legal sufficiency of the evidence, the trial court applies the appellate legal sufficiency standard of review. State v. Mercier, 164 S.W.3d 799, 813 (Tex.App.-Corpus Christi 2005, pet. ref'd); State v. Savage, 905 S.W.2d 272, 274 (Tex.App.-San Antonio 1995), aff'd, 933 S.W.2d 497 (Tex.Crim. App.1996). Thus, the trial court, viewing the evidence in the light most favorable to the verdict, must determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Lewis, 151 S.W.3d 213, 220 (Tex.App.-Tyler 2004, pet. ref'd); State v. Daniels, 761 S.W.2d 42, 45 (Te...