Samuel Coy HAAGENSEN, Appellant, v. The STATE of Texas, Appellee.
No. 06-10-00198-CR.
Court of Appeals of Texas, Texarkana.
Decided June 10, 2011.
346 S.W.3d 758
Accordingly, even if it could be shown that 100% of Texas drivers routinely drive while distracted due to cell phone use, such fact would not prevent twelve jurors from reasonably and rationally concluding that no ordinary prudent person would drive while distracted due to cell phone use.
C. Conclusion
The majority imposes burdens upon the State not supported by law. Because the State presented abundant evidence that appellant‘s failure to perceive the substantial and unjustifiable risk created by her distracted driving—which led to her failure to maintain a proper lookout and making an unsafe lane change—constituted a gross deviation from the ordinary standard of care, I would affirm the conviction.
Judy Hodgkiss, The Moore Law Firm, LLP, Paris, for appellant.
Gary D. Young, Lamar County & Dist. Atty., Paris, for appellee.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
OPINION
Opinion by Justice MOSELEY.
The State charged Haagensen with delivery of methamphetamine based on the purchase by the confidential informant. The State alleged the transaction occurred in a drug-free zone because it occurred within 1,000 feet of a day-care center. See
Haagensen raises five issues on appeal. Haagensen argues the evidence is insufficient to support the jury‘s finding that the transaction occurred in a drug-free zone. In addition, Haagensen claims he received ineffective assistance of counsel and the jury‘s verdict is defective because it contained the wrong cause number.
The Evidence Is Sufficient to Support the Drug-Free Zone Enhancement
In his first and second issues, Haagensen argues that the evidence is insuffi-
In evaluating sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the drug-free-zone enhancement beyond a reasonable doubt. Brooks, 323 S.W.3d at 912 (citing Jackson, 443 U.S. at 319). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Id. at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).
Legal sufficiency of the evidence is measured by the elements of the enhancement as defined by a hypothetically-correct jury charge. Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000) (Malik applies to drug-free-zone enhance-
The State alleged “the above alleged offense was committed in, on, or within 1000 feet of a school, to-wit: Little Ark Preschool....” 3 Section 481.134 provides:
(d) An offense otherwise punishable under Section 481.112(b) ... is a felony of the third degree if it is shown on the trial of the offense that the offense was committed:
(1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school....
The question in this case is whether the definition of a “day-care center” is an element of the offense. Not all definitions constitute elements of an offense. In Gray v. State, the Texas Court of Criminal Appeals held that the definition of intoxicant is not an element of the offense of driving while intoxicated. 152 S.W.3d 125, 132 (Tex. Crim. App. 2004). The court reasoned the intoxicant did not describe the forbidden conduct, the required culpability, any required result, or the negation of an exception. Id.
A definition, though, can be an element of the offense. In Curry, the Texas Court of Criminal Appeals held the statutory alternatives contained in the definition of “abduction” were essential elements of the offense because the alternatives described the “mens rea” necessary to establish the offense. See Curry v. State, 30 S.W.3d 394, 403 (Tex. Crim. App. 2000) (State bound by the statutory alternative alleged). In Curry, the Texas Court of Criminal Appeals distinguished prior cases where the variance did not describe the forbidden conduct, the required culpability, any required result, or the negation of an exception. Id.
Recently, the Texas Court of Criminal Appeals has suggested in dictum that the definition of “owner” is an element of
The Texas Penal Code specifies that forbidden conduct, the required culpability, any required result, or the negation of an exception form elements of an offense. The Texas Penal Code defines an “Element of offense” as:
(A) the forbidden conduct;
(B) the required culpability;
(C) the required result; and
(D) the negation of any exception to the offense.
The State notes Haagensen has not provided any cases which have reversed a drug-free-zone finding based on the definition of a school. The State further asserts it has been unable to find any cases in its own research. The State, though, has not provided this Court with any cases—and we have not discovered any in our own research—that hold the State is not required to prove a day-care center qualifies as a school under
We conclude the definition of a “day-care center” contained in
In the alternative, Haagensen argues the State failed to prove the offense occurred within 1,000 feet of the day-care center. Haagensen argues the record only establishes the offense occurred in the yard of some unidentified house on East Price Street. Foreman testified the transaction occurred in the yard of the house to the east of the third house on East Price Street. Foreman estimated the location was approximately 950 feet from the property line of the day-care center‘s parking lot and testified it was “well within” the 1,000-foot circle of the day-care center.6 Officer Foreman testified he based his measurements from the parking lot of the day-care center. Haagensen argues this parking lot actually belongs to a neighboring church and is not leased to, owned, or rented by the day-care. Haagensen has
The Record Does Not Establish Haagensen Received Ineffective Assistance of Counsel
Haagensen, in his third and fourth issues, claims he received ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth Amendments. See
We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To prevail on his claim, Haagensen must show (1) his appointed trial counsel‘s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel‘s errors, the result would have been different. See Strickland, 466 U.S. at 687-88. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “It is well-settled that any claim of ineffective assistance must be firmly founded in the record.” Flowers v. State, 133 S.W.3d 853, 857 (Tex. App.—Beaumont 2004, no pet.); see Thompson, 9 S.W.3d at 813.
Haagensen argues his trial counsel was deficient because he failed to object to hearsay and evidence of extraneous bad acts and unadjudicated offenses. The State introduced evidence concerning evidence used to obtain the search warrant; evidence obtained as a result of the search warrant, including baggies, scales, syringes, pipes, and a spoon with white residue; testimony concerning Haagensen‘s prior arrests; and drug ledgers which listed names and numbers of persons whom a
The question is whether failure to object to these alleged bad acts constitutes ineffective assistance of counsel. Extraneous offenses are inherently prejudicial, and when counsel fails to object to numerous extraneous and prejudicial matters, counsel may be ineffective. Brown v. State, 974 S.W.2d 289, 293 (Tex. App.—San Antonio 1998, pet. ref‘d). An accused must be tried only for the offense charged; “[t]he accused may not be tried for a collateral crime or for being a criminal generally.” Jackson v. State, 320 S.W.3d 873, 882 (Tex. App.—Texarkana 2010, pet. ref‘d). While much of the evidence may have been admissible, some of the evidence was clearly not admissible.
We note that trial counsel may have elected not to object based on trial strategy. “The review of defense counsel‘s representation is highly deferential and presumes that counsel‘s actions fell within a wide range of reasonable professional assistance.” Mallett, 65 S.W.3d at 63. Much, although not all, of the evidence complained of would have been within the trial court‘s discretion to admit. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (appellant must demonstrate that if counsel had objected on indicated grounds, trial court would have erred in overruling objection). We note trial counsel‘s reasons do not appear in the record. Trial counsel‘s strategy in not objecting may have been an effort to build rapport with the jury and prevent the jury from concluding he was attempting to hide information from them. Counsel also may have not objected because an objection would have emphasized the evidence. “If counsel‘s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel‘s decisions and deny relief on an ineffective assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). Because trial counsel‘s failure to object may have been based on trial strategy, we are unable to conclude counsel‘s actions fell outside the wide range of reasonable professional assistance.
Further, even if trial counsel was deficient for failing to object, Haagensen has not met the second prong of Strickland. Haagensen argues he has demonstrated prejudice because “the jury was inundated with details concerning the process for obtaining a search warrant” and the jury was informed a judge had found sufficient evidence to conclude probable cause existed for the issuance of a search warrant. Haagensen argues this was “done under the guise of educating the jury” and “was used to lead the jury to the conclusion that the judge already knew Appellant was a known drug dealer and the judge already believed him to be guilty.” Haagensen claims he was tried for being a criminal generally and the jury could have concluded the confidential informant lied.
We disagree there is a reasonable probability that a different result would have occurred. Even though there is a theoretical possibility the jury could have disbelieved the confidential informant, Haagensen has not demonstrated a reasonable possibility that the jury would have disbelieved the confidential informant.8 The State introduced evidence that the confidential informant had been searched prior to the transaction, the confidential informant had methamphetamine in his possession after the transaction, methamphetamine was found in the car being driven by Haagensen, and the money provided to the confidential informant had been found in a jacket on which Haagensen had been sitting. The State also introduced an audio recording of the transaction. The record before us does not demonstrate that Haagensen‘s trial counsel rendered ineffective assistance.
In his fifth issue, Haagensen contends his conviction must be reversed because the jury‘s verdict form specified an incorrect cause number. This case is an appeal from cause number 23608 in the trial court. The indictment, court‘s charge, and judgment all specify cause number 23608. The jury‘s verdict form, though, specified cause number 22949.9 Haagensen has not directed this Court to the place in the record where he objected in the trial court to the error.
As a general rule, in order to preserve a complaint for review on appeal, the claimed error must have been presented in the trial court, thereby providing the trial court the opportunity to correct any error during the course of the trial. See
Haagensen has not presented any argument or authority that the error complained of is absolute error or waivable only error. The Beaumont Court of Appeals has held the error complained of—an incorrect cause number—can be forfeited if not objected to. See Metcalfe v. State, No. 09-08-00256-CR, 2009 WL 2617644, at *2, 2009 Tex. App. LEXIS 6720, at *4-5 (Tex. App.—Beaumont Aug. 26, 2009, pet. ref‘d) (mem. op., not designated for publication) (failure to object to incorrect cause number forfeited error).10 We agree with the Beaumont court. By failing to object to the error in the trial court, any error has been forfeited. Nothing is preserved for appellate review. We overrule Haagensen‘s fifth point of error.
Conclusion
The evidence is sufficient to support the jury‘s finding that the offense occurred in a drug-free zone. We conclude the record does not establish that Haagensen received ineffective assistance of counsel. Any error in the cause number contained in the verdict form has not been preserved for appellate review. We affirm.
Dissenting Opinion by Justice CARTER.
JACK CARTER, Justice, dissenting.
The Legislature has determined that the penalty for some drug-related offenses are enhanced if the offense occurs in a “drug-free zone.”
The category that the State alleged applied to this case is found in Section 481.134(d). In those instances, state jail felony offenses are punishable as third degree felonies if the offense occurs: (1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school. “School” is defined in the same statute: (5) “School” means a “private or public elementary or secondary school or a day-care center, as defined by Section 42.002, Human Resources Code.”
Stated plainly, the State did not prove Little Ark Learning Center met all the requirements for a day-care center. A “‘Day-care center’ means a child-care facility....”
I will be the first to acknowledge that the requirements for this proof are detailed and particularized. See Jones v. State, 300 S.W.3d 93, 99 (Tex. App.—Texarkana 2009, no pet.) (jury finding drug offense occurred within 1,000 feet of playground, as defined by law, did not constitute determination offense occurred within drug-free zone under statute applicable at relevant time). For whatever reason, the Legislature only intended to include day-care facilities licensed by the State agency charged with overseeing the centers. But these specific definitions and restrictions were mandated by the Legislature, and we cannot discard the necessity for that requisite proof. The majority opinion finds that most of the evidence needed was provided (Little Ark Learning Center served more than twelve children under age fourteen for less than twenty-four hours a day) and approves the failure to produce evidence that the facility was licensed with the observation that it is unlikely the church would operate without a license. It very well may be true that the day-care center is properly licensed, but we have no evidence of that and we cannot substitute our suppositions and speculation for evidence. Further, the majority opinion shifts the burden of proof by stating, “Absent testimony to the contrary, we will not assume that the First United Methodist Church was illegally operating
I agree with the majority opinion that the State is required to prove the center was licensed, certified, or registered; since no such evidence is in the record, the State has failed to meet its burden of proof.
I respectfully dissent.
JACK CARTER
JUSTICE