Storr v. State

• Decision Date: 22 January 2004
• Docket Number: No. 14-02-01018-CR.,14-02-01018-CR.
• Parties: Ellsworth Swaindell STORR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

126 S.W.3d 647

Ellsworth Swaindell STORR, Appellant, v. The STATE of Texas, Appellee.

No. 14-02-01018-CR.

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

January 22, 2004.

Larry Urquhart, Brenham, for appellant.

Debra S. Mergel, Hempstead, for appellee.

Panel consists of Justices LESLIE BROCK YATES, HUDSON, and KEM THOMPSON FROST.

MAJORITY OPINION

LESLIE BROCK YATES, Justice.

Appellant Ellsworth Swaindell Storr challenges his sentence for aggravated kidnapping, arguing he received ineffective assistance of counsel at the punishment phase of trial. Appellant asks this court to reverse the trial court's judgment as to punishment and to remand this case to the trial court for another punishment proceeding. Because appellant received ineffective assistance of counsel at the punishment phase, we reverse and remand for a new punishment hearing. We also grant appellant's request that the trial court's judgment, which incorrectly states the appellant's plea to the indictment was "guilty," be reformed to correctly state the appellant's plea to the indictment was "not guilty."

Relevant Factual Background

Appellant and a companion kidnapped and robbed the complainant, a college student. The complainant left his car running and entered a post office on the edge of the university campus. Once he was inside the post office, a masked man held a gun to the complainant's head, demanded his wallet, and then ordered him to return to the complainant's car. After the complainant followed the order and returned to his car, he found another masked man in the driver's seat. After forcing him into the car, the robbers drove the complainant to a dark, isolated area, and threatened to kill him.

When another vehicle approached, appellant and his companion forced the complainant into the trunk of the car. While driving with the complainant in the trunk, a police officer stopped the car for a traffic violation. The complainant did not alert the police officer to his presence because the robbers told him through the back seat of the car that they would shoot him if he made any noise during the traffic stop. Thus, the complainant remained silent, and shortly thereafter, the car began moving again. The robbers stopped the car in another isolated area and released the complainant from the trunk of the car. At that point, the two robbers had removed their masks. They ordered the complainant to get into the driver's seat and to drive back to the post office where they had abducted him. The robbers got out of the complainant's car at the post office and walked away from the vehicle. Although the robbers had ordered the complainant to remove his shoes earlier in the evening, they left his shoes in the vehicle and took $20 from the complainant's wallet, leaving the wallet in the vehicle.

The complainant then drove to his dormitory. The complainant told his roommate what had happened to him, but his roommate responded he was going to sleep. The complainant did not call anyone to report what had happened because he saw, through his window, the two robbers outside of his dormitory, sitting on a bench near a basketball court. The next day, the complainant notified his mother and the police of the events of the night before.

At trial, the complainant identified appellant as the robber who demanded his wallet inside the post office. A jury found appellant guilty of aggravated kidnapping, and assessed punishment at 35 years' confinement and imposed a $10,000 fine.

Issue Presented

In his sole issue, appellant argues his trial counsel rendered ineffective assistance at the punishment phase of trial because he did not obtain a jury instruction on voluntary release in a safe place under section 20.04(d) of the Texas Penal Code. See Tex. Pen.Code Ann. § 20.04(d) (Vernon Supp.2000).

Analysis

Section 20.04 of the Texas Penal Code defines the elements of the offense of aggravated kidnapping and specifies that an offense under section 20.04 is a felony of the first degree. Section 20.04 further provides, however, that if, at the punishment stage, a defendant raises the issue of voluntary release of the victim and proves it by a preponderance of the evidence, the offense is a felony of the second degree. In its entirety, section 20.04(d) of the Texas Penal Code states:

(d) At the punishment stage of a trial, the defendant may raise the issue as to whether he voluntarily released the victim in a safe place. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.

TEX. PEN.CODE ANN. § 20.04(d).¹ This provision allows a defendant who has been convicted of aggravated kidnapping to mitigate punishment, if he can prove by a preponderance of the evidence that he voluntarily released the victim in a safe place. See Posey v. State, 966 S.W.2d 57, 62-63 (Tex.Crim.App.1998). The determination of "safe place" includes consideration of factors such as (1) remoteness of the location, (2) proximity of authorities or persons who could aid or assist, (3) the time of day, (4) climatic conditions, (5) condition of the victim, (6) character of the location or surrounding neighborhood, and (7) the victim's familiarity with the location or surrounding neighborhood. Lavarry v. State, 936 S.W.2d 690, 696 (Tex.App.-Dallas 1996, pet. dism'd). The Court of Criminal Appeals recently adopted a narrow interpretation of the term "voluntary"—as used in section 20.04(d)—"such as the absence of `rescue by the police [or others] or escape by the [kidnap] victim.'" Brown v. State, 98 S.W.3d 180, 188 (Tex.Crim.App.2003) (quoting Comments to Model Penal Code, § 212.1, at 223-34).

A first degree felony is punishable by life imprisonment or a term of imprisonment of 5 to 99 years. See Tex. Pen.Code Ann. § 12.32(a) (Vernon Supp.2000). A second degree felony is punishable by a term of imprisonment of 2 to 20 years. See id. § 12.33(a). An individual convicted of a first or second degree felony may also be punished by a fine not to exceed $10,000, in addition to imprisonment. See id. §§ 12.32(b), 12.33(b). Notwithstanding the punishment ranges applicable to first and second degree felonies, if a jury assesses punishment at a term of imprisonment not exceeding 10 years, and the defendant has not previously been convicted of a felony in Texas or any other state, the jury may recommend that the defendant be placed on community supervision instead of serving the prison sentence. See Tex.Code Crim. Proc. Ann. art. 42.12, § 4(a)-(e) (Vernon Supp.2003). If the jury recommends community supervision under this provision, the trial court must sentence the defendant accordingly. See id. In this case, because of the absence of an affirmative finding of safe release, appellant was convicted of a first degree felony, which is punishable by life imprisonment or a term of imprisonment of 5 to 99 years. Appellant was sentenced to 35 years' imprisonment, 15 years more than the maximum imprisonment range for a second degree felony.

Appellant maintains his trial counsel rendered ineffective assistance at the punishment phase of trial because counsel did not obtain a jury instruction on mitigation of punishment under section 20.04(d) of the Penal Code. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex.Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App.1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the result of the proceeding would have been different but for trial counsel's deficient performance.² Strickland, 466 U.S. at 688-92, 104 S.Ct. 2052. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim. App.1998).

A single error of omission can constitute ineffective assistance of counsel. See Howard v. State, 972 S.W.2d 121, 129 (Tex. App.-Austin 1998, no pet.). In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Ordinarily, appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did. See id.

The Court of Criminal Appeals has often repeated the refrain that, in the absence of a record explaining why trial counsel took or failed to take certain actions reviewing courts most likely cannot conclude that an appellant has established his or her trial counsel's performance fell below an objective standard of reasonableness. See, e.g., Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App.2003); see also Bone v. State, 77 S.W.3d 828, 830 (Tex.Crim.App.2003) ("We are once again asked whether an appellate court may reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based on tactical decisions, but the record contains no specific explanation for counsel's decisions. Once again we answer that question `no'.") (emphasis added); Mallett v. State, 65 S.W.3d 59, 63-64 (Tex.Crim.App. 2001) ("When the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable.") (emphasis added). There is a well-founded concern underlying that rule—most often, the record on...