Tong v. State

• Decision Date: 12 April 2000
• Citation: 25 S.W.3d 707
• Parties: (Tex.Crim.App. 2000) CHUONG DUONG TONG, Appellant v. THE STATE OF TEXAS NO. 73,058
• Court: Texas Court of Criminal Appeals

Page 707

25 S.W.3d 707 (Tex.Crim.App. 2000)

CHUONG DUONG TONG, Appellant v. THE STATE OF TEXAS

NO. 73,058

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

April 12, 2000

Opinion Denying Rehearing Sept. 20, 2000.

ON DIRECT APPEAL FROM HARRIS COUNTY

[Copyrighted Material Omitted]

O P I N I O N

MEYERS, J., delivered the opinion of the Court in which MCCORMICK, P.J., and KELLER, PRICE, HOLLAND, and KEASLER joined.

Appellant was convicted of capital murder in March, 1998. TEX. PENAL CODE ANN. 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 2(g).¹ Direct appeal to this Court is automatic. Art. 37.071 2(h). Appellant raises eighteen points of error, but does not challenge the sufficiency of the evidence to support either his conviction or his punishment. We affirm.

JURY SELECTION

In his first point of error, appellant complains that the trial judge abused his discretion by changing the method of jury selection in the middle of voir dire. Appellant asserts that this change prevented him from intelligently utilizing his peremptory challenges, thus denying him the effective assistance of counsel, due process of law, and due course of law.

According to appellant, the judge assured him at the beginning of trial that he "would be given as many peremptory challenges as he requested,"² and he relied on this promise in conducting his voir dire. However, appellant contends that, as they were nearing the end of voir dire, the trial judge abruptly returned to "the old-fashioned way," but refused to restore any of his strikes. Hence, appellant claims he went from a position of having unlimited strikes to a position of having no strikes, which harmed him by subsequently forcing him to accept an undesirable juror.

Appellant maintains that the trial court's decision to alter its voir dire procedure deprived appellant of due process of law, due course of law and the effective assistance of counsel.³ However, appellant fails to cite any relevant authority, from this jurisdiction or from any other, to support his constitutional claims. In fact, Appellant cites only one case which he maintains is favorable to his position. Specifically, he asserts that Sanne v. State, 609 S.W.2d 762, 767 (Tex. Crim. App. 1980), supports his constitutional claim. However, we can find nothing in Sanne that can be read to support appellant's argument. That case dealt with a facial constitutional challenge to the statutory requirement in death penalty cases that the parties exercise peremptory challenges after examination of individual venire persons, rather than being able to use peremptories after having seen the entire venire. Sanne neither deals with the same issue presented in the instant case, nor provides any relevant constitutional or statutory framework for evaluating his claim.

This is not to say that appellant may not make a novel argument for which there is no authority directly on point. However, in making such an argument, appellant must ground his contention in analogous case law or provide the Court with the relevant jurisprudential framework for evaluating his claim. In failing to provide any relevant authority suggesting how the judge's actions violated any of appellant's constitutional rights, we find the issue to be inadequately briefed. See TEX. R. APP. P. 38.1(h); see also McDuff v. State, 939 S.W.2d 607, 621 (Tex. Crim. App. 1997). Appellant's first point of error is overruled.

PUNISHMENT PHASE

In his fourth point of error, appellant charges that his capital punishment proceedings violated the Cruel and Unusual Punishment Clause under the Eighth and Fourteenth Amendments. Specifically, he notes that the trial court instructed the jury that it could not be influenced by "sympathy" when answering the special issues.⁴ Appellant maintains that this "anti-sympathy" charge misled jurors into thinking that it would be improper for them to consider sympathy based on mitigating evidence, which might ultimately have led them to conclude that a life sentence was more appropriate than death.

Appellant's assertion is contrary to the law. As we recently reiterated in Prystash v. State, 3 S.W.3d 522, 534-35 (Tex. Crim. App. 1999), evidence that relies on mere sympathy or emotional response is irrelevant to the jury's consideration of the deathworthiness of the defendant. See also Rhoades v. State, 934 S.W.2d 113, 126 (Tex. Crim. App. 1996) (finding photographs of defendant which depict cheerful early childhood irrelevant because such evidence has no relationship to defendant's conduct); Goff v. State, 931 S.W.2d 537, 555-56 (Tex. Crim. App. 1996) (homosexuality of victim, if unknown to defendant and unrelated to crime, irrelevant to jury's ability to consider and give mitigating effect to background or character of defendant). Indeed, we have held that anti-sympathy charges are appropriate in that they properly focus the jury's attention on those factors relating to the moral culpability of the defendant. See McFarland v. State, 928 S.W.2d 482, 522 (Tex. Crim. App. 1996). Nor do such charges unconstitutionally contradict mitigation instructions. See Fuentes v. State, 991 S.W.2d 267, 276-77 (Tex. Crim. App. 1999); Green v. State, 912 S.W.2d 189, 195 (Tex. Crim. App. 1995). Appellant's fourth point of error is overruled.

In his fifth point of error, appellant contends that the trial court erred by refusing to instruct the jury that they could not consider unadjudicated offenses unless the State proved beyond a reasonable doubt that appellant committed those acts. Such an instruction is not required when, as was done in the instant case, the special issues include an instruction on the State's burden of proof. Jackson v. State, 992 S.W.2d 469, 477 (Tex. Crim. App. 1999). Point of error five is overruled.

Appellant argues in his seventh point of error that the admission of unadjudicated extraneous offenses at punishment violated the Fourteenth Amendment. This Court has held on a number of occasions that Article 37.071, which controls the sentencing phase of a capital murder trial, allows the admission of unadjudicated extraneous offenses at punishment and that this practice does not violate Fourteenth Amendment. See, e.g., Cockrell v. State, 933 S.W.2d 73, 93-94 (Tex. Crim. App. 1996). Appellant recognizes this line of cases, but argues that they should be overturned. This we decline to do. Point of error seven is overruled.

In his fifteenth point of error, appellant argues that the Eighth Amendment erects a per se bar to victim character/impact evidence. Appellant recognizes that we have already addressed and rejected an identical argument in Mosley v. State, 983 S.W.2d 249, 261-265 (Tex. Crim. App. 1998), cert. denied, 119 S. Ct. 1466 (1999); see also Payne v. Tennessee, 501 U.S. 808, 825 (1991). We decline appellant's invitation to reconsider that decision. Point of error fifteen is overruled.

In his sixteenth point of error, appellant asserts that he is entitled to a new trial on punishment so that his defense counsel "may make the choice this Court declared available in Mosley v. State (decided after appellant's trial), that is, whether to waive the mitigation issue entirely as a means of preventing the introduction of any victim [character/impact] evidence." Appellant claims that the law that existed at the time of his trial prevented him from waiving the mitigation issue. He argues that had the law given him the opportunity that Mosley provides, he would have been able to prevent the State from introducing any victim impact evidence.

This Court's opinion in Mosley did not create, as appellant maintains, a new rule regarding waiver of the mitigation special issue. To date, this Court has not decided whether a capital defendant can waive that issue.⁵ Cf. Prystash v. State, 3 S.W.3d 522, 532 (Tex. Crim. App. 1999). The statement in Mosley that appellant claims created a "newly announced waiver choice" was not necessary to the holding in that case and is therefore dicta. It is true that the majority in Mosley suggested that a defendant could waive reliance upon and submission of the mitigation issue, thereby rendering victim impact and character evidence irrelevant and inadmissible. See Art. 37.071 2(e); Mosley, 983 S.W.2d at 264. However, this statement was made in connection with several points concerning victim impact evidence, and the holding under these points pertains to the admissibility of the victim impact evidence, not whether the special issue can be waived. Point of error sixteen is overruled.

EFFECTIVE ASSISTANCE OF COUNSEL

In seven separate points of error, appellant claims that his trial counsel rendered ineffective assistance under the state and federal constitutions. When confronted with an ineffective assistance of counsel claim from either stage of a capital trial, we apply the two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) (adopting Strickland as applicable standard under Texas Constitution).

Under the first prong of the Strickland test, an appellant must show that counsel's performance was "deficient." Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. To be successful in this regard, an appellant "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Under the second prong, an appellant must show that the deficient performance prejudiced the defense. Id. at 687. The appropriate standard for judging prejudice requires an appellant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the...