personal knowledge is not required for reputation testimony. Jackson v. State, 628 S.W.2d 446, 450 (Tex. Crim. App. 1982)....SIVERAND V TEXAS BAIRD I

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."


Send this document to a colleague Close This Window












NUMBER 13-01-608-CR



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI B EDINBURG





CHRISTINE ANN SIVERAND, A/K/A

CHRISTINE ANN JAMES, Appellant,



v.



THE STATE OF TEXAS, Appellee.





On appeal from the County Court at Law

of San Patricio County, Texas





O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Baird[1]

Opinion by Justice Baird

Appellant was charged by information with the misdemeanor offense of criminal mischief. A jury convicted appellant of the charged offense and assessed punishment at 365 days confinement, probated for two years. We reverse.

I. Factual Summary.

The record reveals a four year feud between the complainant and appellant, two young women who at separate times had a relationship with the same man who later married appellant. In the early morning hours of November 3, 2000, the complainant entered the Millennium nightclub in Aransas Pass. Appellant was inside the club but later exited to the parking lot. The complainant asked her friend, Sabina Rodriguez, to follow appellant. Shortly after returning to the club, appellant and the complainant got into a physical confrontation. When the fight ended, the complainant and Sabina left in the complainant=s vehicle. As they drove away, Rodriguez said appellant Akeyed@ the complainant=s vehicle. Rodriguez testified she followed appellant into the parking lot and saw her Akeying@ the complainant=s vehicle and heard metal scraping. Photographs of the damage to the complainant=s vehicle were entered into evidence.

Norma Dixon, appellant=s sister-in-law, testified appellant left the club to make a telephone call to check on her children. Dixon further testified the complainant=s reputation for peacefulness and truthfulness was bad. Dixon also testified there were people other than appellant would want to damage the complainant=s vehicle.

Officer Fernando Lopez of the Aransas Pass Police Department testified he saw the complainant and Rodriguez following this altercation. The two women were at the police station Ahappy ... that they had got [appellant].@

Appellant=s husband testified he was the former boyfriend of the complainant. He stated the complainant=s vehicle had been keyed three years before the alleged incident.

Finally, appellant testified she left the nightclub to retrieve her cell phone and call the babysitter to check on her daughter. Appellant testified she had several encounters with the complainant in the past and had reported each incident to the police. She related a conversation in the parking lot with Rodriguez where she (appellant) denied damaging or even knowing which vehicle belonged to the complainant.

II. The State=s Failure to File Appellate Brief.

Appellant=s brief was filed on December 3, 2001. The State=s brief was due on or before January 2, 2002. Tex. R. App. P. 38.6(b). On March 25, 2002, after not receiving a brief from the State, we ordered the State to file a brief. On April 25, 2002, the State filed a motion for extension of time to file its brief. That motion was granted and the State was given until May 27, 2002, to file its brief. However no brief has been filed, and the State has not requested additional time to file a brief. The Texas Rules of Appellate Procedure require appellant to either file a brief or state that he no longer desires to prosecute the appeal. Tex. R. App. P. 38.8(b). However, there is no corresponding rule requiring the State to file a brief in response to appellant=s brief.[2]


The State=s failure to file a brief leaves this court with several options. We could accept appellant=s argument at face value and summarily reverse. This, we believe, would be unfair to the trial judge who, through no fault of his own, is left with no one to defend his ruling. On the other hand, we could abandon our roles as impartial jurists and become advocates for the State advancing arguments in order to affirm. Of course, such behavior is completely unacceptable for any number of reasons. First, our Code of Judicial Conduct requires that we act impartially. Second, the rules of appellate procedure require the parties to advance their own arguments. Tex. R. App. P. 38.1(h) and 38.2(a)(1). Finally, decisional authority prevents us from advancing arguments on behalf of either party. Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995) (AAppellant leaves us to find error and argue his case for him; this is inadequate briefing, and as such, it presents nothing for our review.@ citing Garcia v. State, 887 S.W.2d 862, 871 (Tex. Crim. App. 1994)); Anson v. State, 959 S.W.2d 203, 208 n.2 (Tex. Crim. App. 1997) (Baird and Overstreet, JJ., dissenting) (Appellate judges who resolve issues not raised by the parties are partisan advocates, not impartial jurists.). We believe the better option is to treat the State=s failure to file a brief as a confession of error. While the confession of error by the prosecutor in a criminal case is an important factor, it is not conclusive. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002). The appellate court must make an independent examination of the merits of the claim of error. Id. However, this examination must necessarily be limited to the arguments advanced in the trial court, otherwise, we run afoul of the prohibition of advancing argument on behalf of the parties.

III. Character Evidence.

Appellant=s sole point of error contends the trial judge erred in excluding the testimony of Aisha Anderson, the third witness called to testify for appellant. Anderson testified she lived in Nueces County. The alleged offense occurred in San Patricio County. Anderson testified she did not know the complainant personally, but was familiar with her reputation in the community where the complainant resided or was well known. The State objected to Anderson=s testimony on two bases: (a) she was not established in or connected to the community because she was a resident of Nueces County; and, (b) because her testimony was based upon hearsay. Regarding the State=s Acommunity@ argument, defense counsel stated:

Your Honor, I=m trying to show that this witness and the complaining witness and other young people her age are all members of a subculture . . . of people who attend the same nightclubs . . . in Aransas Pass and in Corpus Christi and that this witness, through her friendships with other people in . . . the nightclub attending young people community, had heard of and knew of the reputation of the complaining witness.



Counsel further argued that even though the complainant did not reside or work in Nueces County, the complainant did Aengage in recreational activities in that community.@ The trial judge sustained the State=s objection and Anderson was not permitted to testify. The trial judge explained his ruling as follows:

I=m going to sustain the State=s objection and basically instruct you at this time that unless you can show that [Anderson] has knowledge of the reputation either in the community where [the complainant] lives or works, not where she quote, unquote, goes over some place to do partying or whatever like that, that you cannot use that as character evidence in this case.



For the reasons stated in part II of this opinion, our review of this point of error is limited to three narrow issues. The threshold question is whether character evidence related to a complainant is admissible. That question must be answered in the affirmative because Rules 404(a)(2) and 608(a) of the Texas Rules of Evidence authorize this type of evidence.[3]

The second question is whether Anderson=s testimony was properly excluded by the hearsay rule. The answer is clearly no. Rule 803(21) of the Texas Rules of Evidence specifically provides that reputation testimony of a person=s character among associates or in the community is not excluded by the hearsay rule. This is true because A[r]eputation testimony is necessarily based on hearsay, but is admitted as an exception to the hearsay rule.@ Moore v. State, 663 S.W.2d 497, 500 (Tex. App.BDallas 1983, no pet.).[4]

Finally, we turn to the question of whether a character witness is required to reside or work in the same Acommunity@ as the one about whom the testimony is related. This question must also be answered in the negative. Jordan v. State, 290 S.W.2d 666, 667 (Tex. Crim. App. 1956) (testimony of person who knew defendant's reputation in Dallas was admissible even though they did not know reputation in Richardson where defendant lived)). The Court of Criminal Appeals has adopted a liberal definition of Acommunity@ for reputation purposes. Moore, 663 S.W.2d at 501. In Arocha v. State, the Court held: AA person's community is not limited to the locale where the case is tried nor his residence at the date the offense was committed.@ 495 S.W.2d 957, 958 (Tex. Crim. App. 1973) (permissible to question character witness about offense committed in Houston although defendant was resident of Austin) (emphasis added); Ayers v. State, 162 Tex. Crim. 586, 288 S.W.2d 511 (Tex. Crim. App. 1956) (permissible to question Texas witness about offense in New York).

For these reasons, we hold the trial judge abused his discretion in excluding the testimony of Anderson.

IV. Harm Analysis.

Our holding that the trial judge erred does not end our inquiry. We must now determine whether the error requires reversal. Rule 44.2(b) of the Texas Rules of Appellate Procedure prescribes the harm analysis for the erroneous exclusion of evidence. Tex. R. App. P. 44.2(b). Under that rule, error not affecting a substantial right must be disregarded. A substantial right is violated when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776 (1946)). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). However, if the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury's verdict. Webb, 36 S.W.3d at 182. In this context, neither party has the burden of proof under rule 44.2(b). Id. Rather, the appellate court will examine the record for purposes of determining harm. Id. Therefore, the fact that the State failed to file a brief does not affect our consideration of the issue of harm.

In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). This alleged offense represents the culmination of a four year feud between the complainant and appellant. These two young women had been involved in numerous altercations, both physical and verbal. The State=s theory of prosecution was that appellant was still angry over the complainant=s past relationship with appellant=s husband. The only witness to the alleged offense was Rodriguez, a close friend and ally of the complainant. We do not find this to be overwhelming evidence of guilt. Motilla, supra. Appellant=s defensive theories were that she was either being framed by the complainant, or that someone else had damaged the complainant=s vehicle. Officer Lopez supported the first theory by testifying the complainant and Rodriguez were Ahappy . . . that they had got [appellant].@ Appellant=s husband supported the second theory by testifying the complainant=s vehicle had been keyed three years before. Both defensive theories were supported by the character testimony of Dixon that the complainant=s reputation for being peaceful and truthful was bad. Similarly, the testimony of Anderson would have advanced both defensive theories.

In light of particular facts of this case and the long-standing animosity between the parties, we cannot say the error had no influence or only a slight influence on the verdict. Therefore, we must treat the error as harmful. Accordingly, we sustain appellant=s sole point of error.

The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.





CHARLES F. BAIRD

Justice





Publish.

Tex. R. App. P. 47.3.



Opinion delivered and filed this the

10th day of October, 2002.

[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

[2] When the State prosecutes an appeal pursuant to article 44.01 of the Code of Criminal Procedure but does not file a brief, appellate courts hold the State's failure to file a brief constitutes abandonment of the appeal. State v. Palacios, 968 S.W.2d 467, 468 (Tex. App.BFort Worth 1998, no pet.); State v. Crawford, 807 S.W.2d 892, 893 (Tex. App.BHouston [1st Dist.] 1991, no pet.); State v. Sanchez, 764 S.W.2d 920, 921 (Tex. App.BAustin 1989, no pet.).

[3] As noted in part I, supra, Dixon testified the complainant=s reputation for peacefulness and truthfulness was bad.

[4] On several occasions, the State argued Anderson=s testimony must be based upon personal knowledge. The trial judge seemed to accept this argument. But personal knowledge is not required for reputation testimony. Jackson v. State, 628 S.W.2d 446, 450 (Tex. Crim. App. 1982). Instead, such testimony may be based either on (1) discussions between the witness and others about the defendant; or (2) information overheard by the witness during conversations by others who discussed the defendant's reputation. Id.

opinion without reading the record and lies by a judge ~opinion contradiction to reporters record

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee.

Send this document to a colleague Close This Window

--------------------------------------------------------------------------------
















NUMBER 13-02-033-CR





COURT OF APPEALS





THIRTEENTH DISTRICT OF TEXAS





CORPUS CHRISTI - EDINBURG






--------------------------------------------------------------------------------


LEEANN HALEY, Appellant,



v.




THE STATE OF TEXAS, Appellee.






--------------------------------------------------------------------------------


On appeal from the 105th District Court

of Kleberg County, Texas.






--------------------------------------------------------------------------------


MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Baird (1)



Appellant was charged by indictment with the state jail felony offense of tampering with a governmental record. A jury convicted appellant of a lesser included misdemeanor offense and assessed punishment at 180 days confinement in the Kleberg County jail, probated for a period of two years. See Tex. Pen. Code Ann. § 37.10(c)(1) (Vernon Supp. 2006). This appeal follows an earlier abatement of these proceedings wherein we ordered the trial judge to appoint new counsel and permit appellant to file a motion for new trial. Currently, appellant raises three points of error. We affirm the judgment of the trial court.

I. Procedural Posture.

The State has not filed a reply brief. Under Texas Rule of Appellate Procedure 38.3, the State's reply brief is not required before we may consider and decide this appeal. See Tex. R. App. P. 38.3. When confronted with this situation, we treat the State's failure to file a brief as a confession of error. Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.-Corpus Christi 2002, no pet.). Pursuant to Siverand, we will make an independent examination of the merits of appellant's points of error and any opposing arguments are limited to those advanced by the State in the trial court. Id.

II. Ineffective Assistance of Counsel.

Each point of error is centered around the trial judge's denial of appellant's motion for new trial, which raised two claims of ineffective assistance of counsel. The first point of error alleges the trial judge erred in denying the motion, and the second and third points of error raise the claims raised in the motion for new trial. As these points of error are intertwined, they will be considered jointly.

A. Authority.

The Sixth Amendment to the United States Constitution guarantees the accused the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, an appellant must prove (1) that counsel's representation or advice fell below objective standards of reasonableness; and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Id. at 688-92. The defendant 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). Claims of ineffective assistance of counsel "must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Generally, when the record is silent as to counsel's motivations for tactical decisions, an appellant cannot overcome the "strong presumption that counsel's conduct was reasonable." Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

When claims of ineffective assistance of counsel are raised on appeal following the denial of a motion for new trial, we analyze the contentions as a challenge to the denial of that motion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). In such circumstances, we review the Strickland test through an abuse of discretion standard and reverse only if the denial of the motion for new trial was arbitrary or unreasonable, viewing the evidence in the light most favorable to that ruling. Id. at 208 (holding appropriate standard of review for ineffective assistance claim in motion for new trial is abuse of discretion).

B. Failure to Secure the Testimony of Mary Cano.

The second point of error contends counsel was ineffective in failing to call Mary Cano as a witness for appellant. Appellant's defensive theory at trial was that she did not knowingly make a false entry, namely that her husband was not employed, in a government record. This was the culpable mental state required to convict appellant of the lesser included offense. Appellant's theory was that Cano, with the Texas Workforce Commission, told appellant and her husband that her husband's position as a substitute school teacher was not considered employment. We reject this claim for two reasons.

First, as noted above, appellant has the burden of providing this Court with a record that "affirmatively demonstrate[s] the alleged ineffectiveness." Thompson, 9 S.W.3d at 813. Therefore, in the context of this ineffective assistance of counsel claim, the record must demonstrate what the testimony of Cano would have been. However, Cano did not testify at the motion for new trial hearing. At that hearing, the following exchange occurred:

MFNT COUNSEL (2): Can you say with any certainty what Ms. Cano's testimony would have been? (3)




APPELLANT: No, I don't know for sure what it would have been.




MFNT COUNSEL: Do you think if she had been brought in to testify that could have possibly changed the outcome of your trial?

APPELLANT: Yes.




MFNT COUNSEL: You think that possibly her testimony would have boosted your credibility with the jury.




APPELLANT: Yes.




At the conclusion of the hearing, defense counsel stated in her argument:




Your Honor, it appears that [appellant's] only viable defense was to have Mary Cano, this material witness, called, and although we cannot say with any certainty what she would have testified to, there is no evidence presented to you as to what, you know, that she would not have supported [appellant's] position . . . .




When considering claims of ineffective assistance of counsel, appellate courts are not permitted to speculate about what evidence was not presented. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Because the record does not affirmatively reflect what the testimony of Cano would have been, we hold appellant has failed in her burden of providing a record which "affirmatively demonstrate[s] the alleged ineffectiveness." Thompson, 9 S.W.3d at 813.

Second, even if we found the failure to secure the testimony of Cano to be deficient conduct on the part of trial counsel, we would then address Strickland's second prong and determine if the result of appellant's trial would have been different with Cano's testimony. In this analysis, we note that the essence of Cano's testimony was before the jury. Appellant's husband testified as follows:

Q. Did you tell the people at the Workforce that you were substitute teaching?




A. Yes, sir. I told Mary Cano. I called her by phone and I communicated to her that I didn't need to go to this workshop because I was substitute teaching.




Q. Did the Texas Workforce know you were substitute teaching?




A. Yes.




Q. Did they still insist on you coming to their workshops?




A. Yes, sir.




Q. What was their rationale for insisting that you come to the workshops?




A. She told me, Mary Cano told me she did not consider substitute teaching employment, that the Texas Workforce does not consider substitute teaching as employment.




Q. Is that because of the uncertainty of whether or not you are going to work?




A. She said, "you never know. They might not never call you again."




During appellant's direct examination, the following exchange occurred:




Q. Can you explain to the jury why [you filled out the form indicating your husband was not employed]?




A. Well, afer my husband had gotten a job, after the 13th we received a letter to go to the Texas Workforce meeting. Well, I called Mary Cano and I told her, I said, "My husband doesn't need to go to the meeting because he's substitute teaching," and well, first she says, she says -- I said, "my husband is working." She goes, "Well, what is he doing?" I said, "He's substitute teaching," and she goes, "[Appellant], the Texas Workforce does not consider substitute teaching as employment," ... (4)




In light of the foregoing testimony, we hold there is no showing that the result of appellant's trial would have been different but for trial counsel's failure to secure the testimony of Mary Cano. Therefore, the second prong of Strickland has not been satisfied. Strickland, 466 U.S. at 688-92.

For both of these reasons, the trial judge's denial of the motion for new trial on the basis of not securing the testimony of Mary Cano did not constitute an abuse of discretion. Accordingly, the second point of error is overruled.

C. Failure to Peremptorily Strike Veniremember Marilyn Lewis Ruff.

The second point of error contends trial counsel was ineffective for not peremptorily striking the second veniremember, Marilyn Lewis Ruff, who ultimately served as the foreperson of the jury. During voir dire, Ruff, a teacher's aide, was questioned by both the State and the defense on whether she knew appellant's husband, and whether she knew Chandra Lewis, a witness for the State. After this questioning, Ruff stated that her knowledge of either appellant's husband or Lewis would not affect her or prevent her from being impartial.

At the motion for new trial hearing, appellant testified that she expressed her concerns about Ruff to trial counsel and instructed counsel to peremptorily strike Ruff. To convey this, appellant "scratched out Ruff's name" and said, "I [don't] want her on my jury." However, trial counsel did not strike Ruff and she ultimately served as foreperson of appellant's jury.

We read this point of error as raising three separate arguments. First, appellant argues: "[appellant expressed her concern about Ms. Ruff's prejudice to counsel and counsel did nothing, failing to question Ms. Ruff about whether she had any bias or prejudice that would prevent her from being able to be a fair and impartial juror in this case . . . ." This argument is not supported by the record. As noted above, trial counsel individually questioned Ruff about whether she knew appellant's husband and, if so, whether that would affect her impartiality. Ruff answered in the negative.

Second, appellant argues "it was not reasonable under prevailing professional norms that counsel fail to use a peremptory strike against [Ruff] when counsel had strikes available." This argument is not supported by the record. The record reflects that counsel exercised his ten peremptory strikes and, therefore, did not have an available strike for Ruff.

Third, appellant argues that she scratched Ruff's "name off counsel's list of potential jurors indicating to counsel that she did not want Ms. Ruff to serve on her jury." However, we reviewed the original strike list in this case and Ruff's name is not scratched off nor are there marks indicating someone erased marks through Ruff's name. Consequently, this argument is not supported by the record.

Having rejected these three arguments, we overrule the third point of error.

D. Erroneous Denial of the Motion for New Trial.

The first point of error contends the trial judge erred in denying appellant's motion for new trial. In support of her argument, appellant relies upon the arguments advanced in sections B and C, supra. However, for the reasons noted above, those arguments are without merit. Therefore, the trial judge did not abuse his discretion in denying the motion for new trial. Accordingly, the first point of error is overruled.

The judgment of the trial court is affirmed.




CHARLES F. BAIRD

Justice






Do Not Publish.

Tex. R. App. P. 47.3.




Opinion delivered and filed this

the 22nd day of November, 2006.

1. Former Texas Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005).

2. This indicates appellant's counsel at the motion for new trial hearing, who was not appellant's counsel at trial.

3. All emphasis supplied by author unless otherwise indicated.

4. Only at this point did the State lodge a hearsay objection and that objection was sustained by the trial judge. However, the State did not make a motion to strike or request an instruction to disregard the testimony. Therefore, appellant's testimony prior to the State's objection is not denied probative value. Tex. R. Evid. 802 (inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay).

t' lana: I'm taking over so watch me shine..........

t' lana: I'm taking over so watch me shine..........