Daniel Lee Webb v. State

NUMBER 13-03-041-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DANIEL LEE WEBB, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 184th District Court of Harris County, Texas.

MEMORANDUM OPINION

Before Justices Castillo, Garza, and Wittig (1)

Memorandum Opinion by Justice Garza

Appellant, Daniel Lee Webb, was convicted of aggravated sexual assault and

appealed the conviction. Although his issues were overruled on appeal and his conviction

was affirmed, see Webb v. State , 995 S.W.2d 295 (Tex. App.--Houston [14th Dist.] 1999,

no pet.), appellant was later granted a retrial as a result of a post-conviction proceeding for

writ of habeas corpus. Upon retrial before a different judge, appellant was again convicted

of aggravated sexual assault. After a punishment hearing before the trial court, appellant

was sentenced to an even greater length of imprisonment. He now appeals by 14 issues.

We affirm.

I.

In his first issue, appellant contends that Judge Joan Huffman committed reversible

error in failing to recuse herself sua sponte from both phases of the retrial, which from this

point forward, we will simply refer to as "the trial." The record shows that Judge Huffman

recused herself sua sponte during the punishment phase of trial after giving the parties the

following explanation for her actions:

Based on some of the testimony from the last witness, for personal reasons,

I will recuse myself from this case at this time. I want to make clear for the

record that any issues or reasons that have caused me to recuse myself at

this time were - I had no knowledge of that - without getting into what they

are, I had no knowledge of those reasons until the witness began to testify.

So the entire trial that was conducted in the presence of the jury and any

testimony - any portions of the trial that I presided over, prior to the last

witness testifying, were all done without any knowledge of any of the issues

that have now caused me to recuse myself.

Although appellant contends that Judge Huffman should have recused herself

sooner than she did, he points to no motion for recusal or other objection to her

participation made prior to the time that she actually recused herself. See Tex. R. Civ. P.

18a; Tex. R. App. P. 33.1; Arnold v. State , 853 S.W.2d 543, 544 (Tex. Crim. App. 1993)

("[Rule] 18a applies to criminal cases . . . ."). Furthermore, Judge Huffman's explanation

of the circumstances of the recusal gives us no basis for concluding that she should have

recused herself sooner than she did.

The instant case differs from the precedent set by appellant's primary source of

authority, Martin v. State , 876 S.W.2d 396, 397 (Tex. App.--Fort Worth 1994, no pet.).

Unlike appellant, who never filed a motion for recusal, Martin filed motions for recusal and

mistrial upon learning of grounds for mandatory recusal, which should have been apparent

to the trial court from the outset of the proceedings. Id . Martin's motions were overruled,

and he subsequently appealed. Id . Noting that Martin could not have known the basis for

recusal prior to the deadline for complying with Rule 18a, the court of appeals concluded

that Martin had not waived his objections--as the State had argued--by making them upon

learning the grounds for recusal. Id . at 398.

Appellant's failure to file any motion for recusal challenging any of Judge Huffman's

participation in either phase of trial removes this case from the holding in Martin . There

being no additional support offered for appellant's first issue, it is overruled.

II.

In his second issue, appellant contends that Judge Jan Krocker, who presided over

the remainder of his trial, erred in denying his request for an evidentiary hearing on his

motion for new trial as it related to Judge Huffman's recusal. We disagree. The purpose

of a hearing on a motion for new trial is to allow the defendant to fully develop the issues

raised in the motion. Jordan v. State , 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). To

be entitled to a hearing on a motion for new trial, a defendant need only assert reasonable

grounds for relief which are not determinable from the record. Id. If the defendant's

motion and affidavit are sufficient to raise such grounds, a hearing on the motion is

mandatory. Id . If the trial court denies a hearing on the motion for new trial and the

defendant appeals from that denial, we review the trial court's decision for abuse of

discretion. Wallace v. State , 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).

Among other things, appellant's motion for new trial alleged that he and Judge

Huffman "had known each other prior to trial" and that they had a "personal relationship."

Based on these allegations, appellant's motion for new trial claimed that Judge Huffman

should have sua sponte recused herself from the entire trial, as the "personal relationship

. . . resulted in a conflict between the two and created a bias and prejudice from Judge

Huffman against the Appellant."

As noted above, appellant failed to raise any objection to Judge Huffman's

participation in the case until after trial, thus precluding any relief on his complaint. See

Tex. R. Civ. P. 18a; Tex. R. App. P. 33.1; Arnold , 853 S.W.2d at 544 . There were therefore

no fact issues to be resolved at the requested evidentiary hearing. Accordingly, Judge

Krocker did not abuse her discretion in denying the request for an evidentiary hearing. See

Wallace , 106 S.W.3d at 108 . Appellant's second issue is overruled.

III.

In his third issue, appellant contends that the trial court committed reversible error

by failing to grant a mistrial after being informed that four prosecutors had rifled through

appellant's belongings, including photographs and negatives, during a court recess when

appellant was detained in a holding cell. Appellant was a pro se defendant at the time of

the incident.

The trial court held an evidentiary hearing to investigate appellant's complaint of

prosecutorial misconduct. At the hearing, the State called the four prosecutors as

witnesses and examined them on their participation in the complained-of activity. Although

the prosecutors admitted viewing the photographs, they insisted that their acts were

unintentional and gave individual accounts and explanations for their conduct, including a

common mistaken belief that the photographs were marked as exhibits and were therefore

open to review.

After hearing the testimony, the trial court overruled appellant's motion for mistrial,

giving the following explanation for her decision:

The Court will make a finding that your [meaning appellant's] items were

spread out over about - that's probably about a 6 or 8 foot surface area.

The pictures were on the far perimeter of your area. From here they appear

that the ones in question had some type of stickers on it [sic], other than I

guess the one that [the first prosecutor] testified to with her explanation that

she put it down immediately.

And I'll say on the record that it's standard practice of the Court that exhibits

are marked and left among the courtrooms for those that have permission

to be inside that bar, are often perused during breaks. It's common practice

in Harris County criminal courtrooms.

In determining whether a mistrial was appropriate, we consider the (1) severity of

the misconduct (the magnitude of the prejudicial effect of the prosecutor's misconduct), (2)

measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the

judge), and (3) the certainty of conviction absent the misconduct (the strength of the

evidence supporting the conviction). Ramon v. State , 159 S.W.3d 927, 929 (Tex. Crim.

App. 2004). Prosecutorial misconduct reasonably reaches only that conduct which is

qualitatively more serious than simple error and connotes an intentional flouting of known

rules or laws. Ex parte Peterson , 117 S.W.3d 804 , 816 n. 55 (Tex. Crim. App. 2003). This

Court will not hesitate to reverse a judgment when the prosecutor engages in conduct

calculated to deny the accused a fair and impartial trial. See Johnson v. State , 604 S.W.2d

128, 135 (Tex. Crim. App. 1980).

The testimony from the four prosecutors tended to prove that the prosecutors did

not intentionally flout known rules or laws. See Ex parte Peterson , 117 S.W.3d at 816

n.55. It is apparent that, upon hearing the live testimony from those involved, the trial court

did not view their actions as intentional misconduct. Although obviously ill-advised and

unprofessional, it is our opinion that the prosecutors' actions fall short of conduct calculated

to deny the accused a fair and impartial trial. See Johnson , 604 S.W.2d at 135 . Without

condoning the conduct at issue, we hold that the trial court did not abuse its discretion in

denying appellant's request for a mistrial. See Ladd v. State , 3 S.W.3d 547, 567 (Tex.

Crim. App. 1999) (stating that abuse of discretion applies to review of denial request for

mistrial). We therefore overrule appellant's third issue.

IV.

In his fourth issue, appellant argues that the trial court committed reversible error

in denying his objections to the State's use of the term "rapist" to identify appellant during

its closing argument. To constitute proper jury argument, the argument must encompass

one of the following: (1) summation of the evidence presented at trial, (2) reasonable

deduction(s) drawn from that evidence, (3) answer(s) to the opposing counsel's argument,

or (4) a plea for law enforcement. McFarland v. State , 845 S.W.2d 824, 844 (Tex. Crim.

App. 1992) (citing Gaddis v. State , 753 S.W.2d 396, 398 (Tex. Crim. App. 1988)). In

examining challenges to jury argument, we consider the remark in the context in which it

appears. Gaddis , 753 S.W.2d at 398 . Counsel is allowed wide latitude without limitation

in drawing inferences from the evidence so long as the inferences drawn are reasonable,

fair, legitimate, and offered in good faith. Gaddis , 753 S.W.2d at 398 . Conversely, the jury

argument must be extreme or manifestly improper or inject new and harmful facts into

evidence to constitute reversible error. Id .

As noted above, appellant was tried and convicted for aggravated sexual assault.

We view the prosecution's references to appellant as a rapist in closing argument as

consistent with the State's position that appellant committed aggravated sexual assault.

Appellant's principal objection to the State's use of the word rapist is that it unfairly

suggested to the jury that appellant had been previously convicted of rape, which appellant

defines narrowly as forced vaginal intercourse. Because there were no allegations of

forced vaginal intercourse in the instant case, appellant contends that it was reversible

error for the trial court to allow the State to call him a rapist.

We disagree. The State's "rapist" statements were not made in a manner or context

that suggested a rape conviction in a prior proceeding. To the contrary, the "rapist"

statements arose directly from the acts established by the evidence at trial, which tended

to prove that appellant committed the offense of aggravated sexual assault. We view the

prosecution's "rapist" statements as within at least the first two categories of valid argument

enumerated above, summation of the evidence presented at trial and reasonable

deductions drawn from that evidence, respectively. See McFarland , 845 S.W.2d at 844 .

We also note that appellant has failed to provide any authority for disallowing use

of the term "rapist" to identify the perpetrator in a trial for aggravated sexual assault. See

Griffith v. State , 116 S.W.3d 782, 787 (Tex. Crim. App. 2003) ("As enacted in 1973, the

rape statutes prohibited conduct that is now prohibited by the sexual assault and

aggravated sexual assault statutes."). In our view, it would be an undue hardship for the

State to be categorically denied use of a word that so aptly describes the culpable criminal

conduct alleged in the indictment and sought to be established beyond a reasonable doubt

by evidence and live testimony at trial. Having no basis for imposing this restriction, we

hold that appellant has not demonstrated any improper jury argument. His fourth issue

is therefore overruled.

V.

In his fifth issue, appellant complains that the trial court erred in denying his motion

to quash the venire panel based on appellant's concern that some of the veniremen may

have overhead a conversation between appellant, the State, and the trial court involving

appellant's prior conviction.

Again, the trial court indulged appellant with an evidentiary hearing to investigate his

complaint. After allowing appellant to call three witnesses to support his assertion that the

veniremen could have overheard the conversation, the trial court denied appellant's motion

to dismiss the panel:

It continues to be the Court's opinion that there were very few people that

had entered the courtroom. They were not looking up here. The discussion

was clearly not about you. Your back was to them. [The prosecutor's] back

was to them. And it was not apparent to them what you were talking about.

They may have heard the word "conviction" - I doubt it - if they were even

paying attention. The deputy was immediately in front of them giving them

orders and directions. I do not believe there would be any taint or biases

toward you whatsoever. I'm convinced that the jurors had no knowledge or

information about what was going on in regards to you and / or a conviction.

We are in no position to review the trial court's firsthand account of the conversation

or to second-guess its opinion that the conversation could not have been overheard or

understood by any members of the venire panel. We would greatly exceed the purview of

our authority as an appellate court, if we were to encroach on the trial court's fact-finding

function by disbelieving its resolution of the dispute in favor of appellant's complaint.

Appellant's fifth issue is overruled.

VI.

In his sixth issue, appellant contends that the trial court erred in denying his request

for an evidentiary hearing on his motion for new trial as it related to grounds of ineffective

assistance of counsel. Appellant's pro se motion for new trial and affidavit claimed that

appellant was denied effective assistance of counsel because (1) counsel had a conflict

of interest since he was the subject of an ineffective assistance of counsel claim by

appellant in a post-conviction proceeding for writ of habeas corpus, (2) counsel was

unprepared to proceed on the punishment phase of trial since he had been appointed on

a Friday and sentencing began the next Monday, and (3) counsel misinformed appellant

regarding sentencing and probation.

We overrule appellant's sixth issue because the record shows that the trial court did

hold a hearing on the ineffective assistance of counsel claims alleged in appellant's pro se

motion for new trial. Although a hearing was held, the trial court did not allow appellant to

present live testimony. Instead, it allowed appellant to offer evidence in affidavit form,

which appellant did and thereby developed and substantiated his ground for new trial. See

Jordan , 883 S.W.2d at 665 . Appellant has not shown this was an abuse of discretion.

See Tex. R. App. P. 21.7 ("The court may receive evidence by affidavit or otherwise.");

McIntire v. State , 698 S.W.2d 652, 658 (Tex. Crim. App. 1985).

VII.

In his seventh issue, appellant contends that the trial court erred by sentencing him

on re-trial to a lengthier prison term than what he was assessed in his first trial. See North

Carolina v. Pearce , 395 U.S. 711, 725-26 (1969) (indicating that a presumption of judicial

vindictiveness applies even where different sentencing judges are involved, thus barring

an increase in sentence on retrial). We disagree. The United States Supreme Court has

clarified that the Pearce presumption is inapplicable and the due process clause is not

violated where different "sentencers" assess varying "sentences" and the trial judge at the

second trial provided an on-the-record logical, non-vindictive reason for the greater

punishment. See Tex. v. McCullough , 475 U.S. 134 , 140 n.3 (1986); Jackson v. State , 766

S.W.2d 518, 520 (Tex. Crim. App. 1988).

Appellant's prior sentence was imposed by a different judge. Thus, we have a

situation where different "sentencers" have assessed varying "sentences." See

McCullough , 475 U.S. at 140 n.3. The judge who imposed the second sentence also

articulated her non-vindictive reasons for considering the full range of punishment:I'm going to find that the evidence presented in the re-trial at the punishment

phase is significantly different from the evidence presented at the original

trial in this case; and therefore, it would be my view that the Court has, for its

consideration, the entire range of five years to life in prison. Plus, a fine up

to $10,000.

I'm going to go ahead and make that finding now so when you make your

argument as to the appropriate sentence, that ruling will already be in place

so you know to argue between five and life and not 5 and 30 [the previous

sentence], because I think it is clear from this record there is a substantial

difference in the evidence presented and I find it to be entirely proper under

Texas law for me to consider things which occurred after the last trial. I think

the law is pretty clear.

Appellant acknowledges these statements, but he insists that they constitute "no

reason" for the increase in his prison term. Although we might agree that, in the above

statements, the trial court focused on the possible sentencing range rather than on a

specific proposed sentence, we nevertheless disagree with appellant's ultimate averment

of impropriety. The trial court acknowledged the previous sentence of 30 years and

informed counsel that she would be considering the full range of punishment allowed by

law for the specific reason that "there is a substantial difference in the evidence presented."

Even if the Pearce presumption of vindictiveness were applicable, which it is not, it would

have been effectively rebutted. See id . at 140 ("The presumption is also inapplicable

because different sentencers assessed the varying sentences . . . .").

Appellant's seventh issue is overruled.

VIII.

In his eighth issue, appellant argues that his constitutional rights were violated

because he was "effectively without counsel" during the time to file a motion for new trial.

The record shows that appellant timely filed a pro se motion for new trial, even though the

trial court had previously appointed an attorney to represent him during the time for filing

a motion for new trial. Appellant's court-appointed counsel appeared before the court two

days after appellant's pro-se motion was file-stamped by the clerk of the court. At that

time, counsel presented appellant's pro-se motion to the court and described the difficulties

he had encountered in contacting appellant and filing his own motion for new trial. The

court granted counsel leave to file a supplemental motion for new trial, and the record

shows that counsel filed the supplemental motion for new trial within the time allowed by

the court.

Although the court of criminal appeals has held that a defendant is entitled to

counsel at a hearing on a motion for a new trial, Trevino v. State , 565 S.W.2d 938, 940

(Tex. Crim. App. 1978), it has yet to address the issue of whether a defendant is entitled

to counsel during the time limit for filing a motion for new trial to assist the defendant in

preparing the motion, Smith v. State , 17 S.W.3d 660 , 663 n.3 (Tex. Crim. App. 2000).

Assuming this right to counsel exists, a claim on direct appeal of denial of counsel should

be entertained and sustained only if supported by the record. Oldham v. State , 977

S.W.2d 354, 360 (Tex. Crim. App. 1998). Because appellant's claim is not supported by

the record, which affirmatively demonstrates that he had counsel who did not abandon him,

we have no basis for sustaining it.

In overruling appellant's eighth issue, we emphasize the difference between a claim

of having no counsel, see id ., and a claim of receiving ineffective assistance of counsel,

see Strickland v. State , 466 U.S. 668, 688-93 (1984). Being in the former category, and

not the latter, appellant's eighth issue is overruled as unsupported by the record.

IX. - X.

In his ninth and tenth issues, appellant argues that the trial court committed

reversible error by discharging appellant's "standby counsel." The reporter's record shows

the following exchange:

The State: Judge, can we determine whether or not - - make it clear on

the record that the . . . [appellant] has also unequivocally

waived his standby counsel, although he doesn't have a right

to standby counsel. He has said, I do not want standby

counsel; and that is still his position.

The Court: That's what he has told me before. Is that correct, Mr. Webb?

Appellant: Yes, Your Honor.

The Court: All right. He's told me he didn't want standby counsel. He

asked me to get rid of . . . [standby counsel], which I did. I

honored his request, because he didn't like . . . [standby

counsel] the way things were going down. Correct Mr. Webb?

Appellant: Absolutely.

On this record, there are no arguable grounds for questioning the trial court's actions

in removing and discharging appellant's standby counsel. See Tucker v. State , 771

S.W.2d 523, 534 (Tex. Crim. App. 1988) ("[T]he accused cannot first invite error and then

complain about it on appeal."). Appellant's ninth and tenth issues are overruled.

XI., XII., & XIV.

In his eleventh, twelfth, and fourteenth issues, appellant contends that he received

ineffective assistance of counsel at trial. See Strickland , 466 U.S. at 686 ; U.S. Const.

amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977).

Under the Strickland standard articulated by the United States Supreme Court, a defendant

must demonstrate the coalescence of two conditions to prevail on an ineffectiveness claim:

(1) counsel's performance was deficient because it fell below an objective standard of

reasonableness; and (2) a reasonable probability exists that, but for counsel's deficient

performance, the result of the proceeding would have differed. Strickland , 466 U.S. at

686 .

Appellant identifies three instances of allegedly deficient performance by his court-appointed counsel: (1) counsel's advice, based on his interpretation of Pearce , to allow

the court rather than a jury to determine punishment; (2) counsel's failure to cross-examine

Michael Taylor, a witness for the State; (2) and (3) counsel's failure to interview and

subpoena other specified witnesses.

At the outset, we note that the above points must be addressed somewhat

differently, as the trial court received evidence on the first point but not on the others.

Appellant has the burden of showing that the allegations of ineffectiveness are firmly

founded in the record and that the record affirmatively demonstrates the alleged

ineffectiveness. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The two-pronged test articulated in Strickland is a benchmark for gauging the overarching and

determinative question of whether counsel's conduct so undermined the proper functioning

of the adversarial process that the trial cannot be relied on as having produced a reliable

result. McFarland , 845 S.W.2d at 843 .

Where, as in appellant's second and third points, there is no indication of counsel's

reasons or strategy for the complained-of assistance, we occupy an extremely limited

position to critique counsel's performance. Mindful that our judicial review must be highly

deferential to trial counsel and that we must avoid the deleterious effects of hindsight, see

Thompson , 9 S.W.3d at 813 , we will not find counsel's assistance to be ineffective by

speculating as to his reasons for the complained-of assistance, see Gamble v. State , 916

S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Because appellant has not

rebutted the strong presumption that counsel's conduct fell within the wide range of

reasonable professional assistance by producing evidence of counsel's reasons or strategy

for the complained-of activity, we overrule his ineffectiveness claim as it relates to points

two and three above, which are, respectively, issues eleven and fourteen on appeal. See

Strickland , 466 U.S. at 668 ; Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App.

1994).

We treat appellant's first point, or twelfth issue on appeal, differently because

appellant included it in his motion for new trial and was able to submit supporting evidence

at a hearing on this particular ground for his ineffectiveness claim. Thus, we have for our

review and consideration a record of evidence tending to prove the facts surrounding

appellant's decision to have the trial court determine his sentence.

As noted above, appellant filed a pro se motion for new trial, in which he argued,

among other things, that he received ineffective assistance of counsel because counsel

had misguided him into having the trial court assess punishment. Appellant argued that,

had this advice not been given, he "would have remained with the jury for sentencing."

The trial court held a hearing on the motion for new trial, at which time, appellant

and the State offered competing affidavits regarding appellant's decision to allow the trial

court to assess punishment. Appellant's affidavit included allegations consistent with his

twelfth issue. The State offered an affidavit by appellant's appointed-counsel, in which

counsel agreed with appellant's statement of his legal advice regarding Pearce , but

counsel's affidavit also noted that appellant "was so confident that the case would be

reversed on appeal that he really didn't care what he was sentenced to" and that he "was

scared by the fact that the jury had reached their guilty verdict so quickly." Based on this

evidence, the trial court overruled appellant's ground for new trial.

We overrule the issue on appeal, holding that, as an ineffectiveness claim,

appellant's twelfth issue is defective in that it fails to establish by a preponderance of the

evidence that the result in the proceeding would have been different in the absence of the

allegedly deficient performance of counsel. See Strickland , 466 U.S. at 686 . In light of the

evidence adduced at the hearing on the motion for new trial, we can only speculate as to

whether appellant would have elected for the jury to determine his punishment if counsel

had given a different opinion as to the applicability of the Pearce presumption. Similarly,

any conclusion that, based on the facts of the case, the outcome of the proceeding would

have been different because a jury's sentence would have been more favorable to

appellant than that of the trial court would capitalize upon an anti-jurist bias to which this

Court is obviously unsympathetic. We will not presume that the trial court was unduly

harsh in sentencing appellant solely for the sake of satisfying the otherwise unanswered

second prong of the Strickland test.

Appellant's eleventh, twelfth, and fourteenth issues are therefore overruled.

XIII.

In his thirteenth issue, appellant argues that the trial court erred by refusing to allow

his appointed counsel ten days to prepare for the punishment phase of trial. See Tex.

Code Crim. Proc. Ann. art. 1.051(e) (Vernon Supp. 2004-05). As noted above, appellant

was pro se during the guilt-innocence phase of trial. After the punishment phase of trial

commenced and the State had begun examining its first witness, appellant complained that

he was "not prepared for this witness" and withdrew his waiver of the right to counsel. The

trial court stopped the proceeding and appointed counsel for appellant: "It's clear to the

Court that adequate notice was given on this extraneous offense for punishment purposes.

And it's clear to the Court that you're manipulating the Court, Mr. Webb, which is clearly

what you want to do. Everybody in this Court room knows it, and now you know it."

Court-appointed counsel, the same attorney whose allegedly ineffective assistance

is the subject of appellant's eleventh, twelfth, and fourteenth issues, appeared in behalf of

appellant at the punishment phase of the trial, which commenced anew on the following

Monday. Counsel did not make any requests for additional time to prepare for the

punishment phase.

These facts do not establish an abuse of discretion. See id . 1.051(h) ("If the

defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed

counsel 10 days to prepare."); Cole v. State , 929 S.W.2d 102, 103 (Tex. App.--Beaumont

1996, pet. ref'd) ("[A]n attorney who is appointed to represent a defendant who has

withdrawn a previous waiver of counsel is not automatically entitled to ten days to prepare

for trial."). Having failed to address the trial court's discretion in this regard, appellant has

also failed to present a viable basis for sustaining his thirteenth issue. It is therefore

overruled.

Conclusion

The judgment of the trial court is affirmed.

_________________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 7th day of December, 2006.

1.

1. Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas

pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon Supp. 2004).

2.

2. Michael Taylor, a "contractor" with the Bureau of Alcohol, Tobacco, and Firearms, testified that he had

investigated the bombing of a large nightclub in 1981 and that appellant was one of the seven conspirators.

Defense counsel apparently did not cross examine Taylor. The court noted that it would consider the

testimony for purposes of sentencing.