Isreal Hudgins v. State

Opinion issued October 13, 2011.

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-10-00425-CR

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IsreAl Hudgins , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Case No. 1204840

MEMORANDUM OPINION

A jury convicted appellant, Isreal

Hudgins, of murder and assessed punishment at 75 years’ confinement . [1] In three issues, Hudgins contends that the application

portion of the trial court’s jury charge contains reversible error and that he

received ineffective assistance of counsel.

We affirm the trial court’s

judgment.

Background

The complainant, John Brown, was shot

and killed in his apartment in Houston, Texas.

Police officers responding to the shooting found the complainant’s apartment

in a state of disarray, and, scattered throughout the apartment, they

discovered more than 150 grams of crack cocaine and $8,000 in cash. Additional evidence was collected by police

at the apartment, including fingerprints, fired cartridge casings, and bullet

fragments.

As a result of the police investigation into the

complainant’s death, Hudgins became a murder suspect and was taken into

custody. He admitted in a recorded

statement that he and two accomplices, Irvin Williams and Darryl Pierre,

planned to rob the complainant. In that

statement, Hudgins claimed that he drove Williams and Pierre to the complainant’s

apartment and remained in the car while, armed with guns, they committed the

robbery. Hudgins heard three gunshots

before Williams and Pierre returned to the car, carrying an additional gun and

an unknown amount of cash. They told

Hudgins they shot the complainant. Hudgins

then drove Williams and Pierre away from the crime scene and received $800 in

payment.

Hudgins’s indictment alleged that he murdered the complainant

by intentionally or knowingly causing the complainant’s death or by committing

an act clearly dangerous to human life with the intent to seriously injury the

complainant. See Tex. Penal

Code Ann . § 19.02(b)(1),

(b)(2) (West 2011). The indictment did not charge Hudgins

with any offense other than murder; it omitted any mention of the potential

offenses of aggravated robbery, felony murder, and capital murder.

In voir dire and opening statements, the State presented its

theory of the case in a manner consistent with Hudgins’s own statement: Hudgins planned the robbery of the

complainant with Williams and Pierre, he knew Williams and Pierre had guns, he

waited in the car while Williams and Pierre went into the complainant’s

apartment, he heard three gunshots, he was told by Williams and Pierre that

they had shot the complainant, and then he and the other men split the cash

taken from the complainant’s apartment. At

trial, the State called numerous witnesses to establish Hudgins’s guilt. Among the witnesses called by the State was Kenneth

Broussard, an inmate incarcerated with Hudgins and Williams. Before trial, Broussard wrote the prosecutor

and offered information about an alleged jailhouse murder confession by Hudgins. When called at trial, however, Broussard stated

that he did not want to testify and could not remember whether Hudgins actually

admitted to entering the apartment and killing the complainant or whether he

had fabricated such a conversation with Hudgins. He eventually testified that he lied in his

correspondence with the prosecutor to curry favor in the defense of his own

unrelated robbery charge. To impeach

Broussard, the State called David Worley, an investigator with the prosecutor’s

office who interviewed Broussard.

Broussard told Worley that Hudgins admitted to having a plan to rob the

complainant and that Hudgins actually entered the complainant’s apartment and

shot him. Several other police officers

and investigators also testified about the investigation giving rise to the

murder charges against Hudgins.

At the close of evidence, the trial court and the parties

discussed the jury charge, which authorized the jury to convict Hudgins of

murder under any of these theories:

(1) Hudgins intentionally or knowingly caused the

death of the complainant by shooting him with a firearm;

(2) Williams and Pierre intentionally or knowingly

caused the death of the complainant and Hudgins, with the intent to promote or

aid the commission of the offense, solicited, encouraged, directed, aided, or

attempted to aid Williams and/or Pierre to commit the offense;

(3) Hudgins and

Williams and/or Pierre entered into an agreement to commit the felony offense

of aggravated robbery of the complainant, and, while in the course of

committing such aggravated robbery, Williams and/or Pierre intentionally or

knowingly caused the death of the complainant, and the murder was committed in

furtherance of the conspiracy and was an offense that Hudgins should have

anticipated as a result of carrying out the conspiracy;

(4) Hudgins

intended to cause serious bodily injury to the complainant and did cause the

death of the complainant by intentionally or knowingly committing an act

clearly dangerous to human life;

(5) Williams

and/or Pierre intended to cause serious bodily injury to the complainant and

did cause the death of the complainant by intentionally or knowingly committing

an act clearly dangerous to human life, and Hudgins, with the intent to promote

or assist the commission of the offense, solicited, encouraged, directed, aided

or attempted to aid Williams and Pierre to commit the offense; or

(6) Hudgins and Williams and/or Pierre entered

into an agreement to commit the felony offense of aggravated robbery of the

complainant, and, while in the course of committing such aggravated robbery,

Williams and/or Pierre intended to cause seriously bodily injury to the

complainant and did cause the death of the complainant by intentionally or

knowingly committing an act clearly dangerous to human life, and the murder was

committed in furtherance of the conspiracy and was an offense that Hudgins

should have anticipated as a result of carrying out the conspiracy.

Hudgins objected to the trial court’s jury charge on several

grounds. His trial counsel objected that

language in the abstract portions of the charge concerning conspiracy would

“obfuscate the issues for the jury and in itself [would] also constitute a

comment on the weight of the evidence [and] allow the jury to convict [Hudgins]

on the theory of . . . conspiracy to commit murder” and that there was no

evidence that Hudgins was “guilty of any conspiracy to commit murder even

though it might be argued that ample evidence has been submitted to support the

charge of aggravated robbery.” Trial

counsel also requested the omission of the application paragraphs and other

portions of the charge addressing a conspiracy between Hudgins, Williams, and

Pierre for the same reasons. He further

objected that there was no evidence to support a submission inquiring whether

Hudgins had intentionally or knowingly caused the complainant’s death. Finally, trial counsel requested a submission

on the lesser offense of aggravated robbery.

His objections and requests, however, were overruled or denied.

Jury Charge

In two issues, Hudgins contends that his conviction should be

reversed because the charge submitted to the jury violated his due process

rights by erroneously allowing the jury to find Hudgins guilty of murder based

on conduct not statutorily defined as murder or alleged in the indictment. Specifically, in his first issue, Hudgins

argues that the trial court erred by instructing the jury, in the third

application paragraph, that it could find him guilty based on conduct amounting

to capital murder, rather than the charged offense of murder. In his second

issue, Hudgins argues that the trial court erred by authorizing the jury, in

the third and sixth application paragraphs, to convict him of the unindicted

offense of felony murder.

The trial court’s charge must fully instruct the jury on the law

applicable to the case and apply that law to the facts adduced at trial. See Tex. Code Crim. Proc. Ann . art. 36.14

(West 2007); see also Gray v. State ,

152 S.W.3d 125, 127 (Tex. Crim. App. 2004).

To determine whether the trial court’s charge contains reversible error,

we first decide whether error exists. Middleton v. State , 125 S.W.3d 450, 453

(Tex. Crim. App. 2003). If we conclude

that it does, we examine whether the error harmed the defendant. Id. ;

see Tex.

Code Crim. Proc. Ann . art. 36.19 (West 2006) (“ Whenever it appears by the record in any criminal action upon

appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18

has been disregarded, the judgment shall not be reversed unless the error

appearing from the record was calculated to injure the rights of defendant, or

unless it appears from the record that the defendant has not had a fair and

impartial trial.”).

I. Capital Murder Submission

Hudgins first argues that the trial court’s jury charge

contains reversible error because it instructed the jury that it could find him

guilty based on conduct amounting to capital murder, rather than the indicted

offense of murder. [2] Hudgins asserts that this error deprived him

of his due process right to notice of the charges against him and the

opportunity to prepare a defense. The

State responds that any error in the submission of a capital murder charge is

harmless because capital murder includes additional elements of proof that

murder does not, thereby increasing the State’s burden and benefitting Hudgins.

Under the Texas Penal Code, one commits the offense of murder

if he:

(1)

intentionally or

knowingly causes the death of an individual;

(2)

intends to cause

serious bodily injury and commits an act clearly dangerous to human life that

causes the death of an individual; or

(3)

commits or

attempts to commit a felony, other than manslaughter, and in the course of and

in furtherance of the commission or attempt, . . . he commits or attempts to

commit an act clearly dangerous to human life that causes the death of an

individual.

Tex. Penal Code Ann . § 19.02(b). The

offense of murder is elevated to the offense of capital murder if the person

commits the murder, as defined by section 19.02(b)(1), in the course of

committing a felony (such as robbery). See Tex.

Penal Code Ann . § 19.03(2) (West 2011).

Hudgins was charged with murder under

sections 19.02(b)(1) and (b)(2); as previously

noted, the indictment made no mention of felony murder, capital murder,

aggravated robbery, or any other potential offenses. At the conclusion of the case, the jury was

authorized by the trial court’s charge to convict Hudgins of murder under six

alternative theories. The third

application paragraph instructed the jury:

If you find from the

evidence beyond a reasonable doubt that the defendant, Isreal Hudgins, and

Irvin Williams and/or Darryl Pierre entered into an agreement to commit the

felony offense of aggravated robbery of [the complainant], and pursuant to that

agreement, if any, they did carry out their conspiracy and that in Harris

County, Texas, on or about the 9th day of March, 2008, while in the course of

committing such aggravated robbery of [the complainant], Irvin Williams and/or

Darryl Pierre intentionally or knowingly caused the death of [the complainant]

by shooting [him] with a deadly weapon, namely a firearm, and the murder of [the

complainant] was committed in the furtherance of the conspiracy and was an

offense that the defendant should have anticipated as a result of carrying out

the conspiracy.

Because

this paragraph authorized a guilty finding if the jury concluded the murder was

committed while in the course of an aggravated robbery, the State agrees that it

erroneously described the unindicted offense of capital murder. See Tex Penal Code Ann. §19.03(2) ( West

2011) (explaining that capital murder is murder as defined by section 19.01(b)(1)

and intentionally committed in the course of committing robbery); Howard v. State , 650 S.W.2d 460, 464

(Tex. App.—Houston [14th Dist.] 1982), aff’d ,

667 S.W.2d 524 (Tex. Crim. App. 1984) (holding that “if

one intentionally or knowingly causes the death of

an individual in the course of committing or attempting to commit aggravated robbery , he

is guilty of capital murder just as if such killing

occurred while in the course of committing or attempting to commit robbery”); see also Montoya v. State , 810 S.W.2d 160 , 164 - 65 (Tex. Crim. App. 1989) (discussing

similar language used in capital murder jury charge) . Assuming error per the State’s agreement, we

consider whether the

submission of an unindicted offense is reversible error.

Neither the United States Supreme

Court nor the Texas Court of Criminal Appeals has yet described the erroneous

submission of an unindicted offense as an error for which reversal is

automatic. See United States v. Gonzalez-Lopez , 548 U.S. 140 ,

148–49, 126 S. Ct. 2557, 2564 (2006); see also Daniels v. State , 754 S.W.2d

214, 222 (Tex. Crim. App. 1988) (observing that jury-charge errors do not

result in automatic reversal). Thus, w e must review the trial court’s error

for harmlessness. See Trejo v. State , 280 S.W.3d 258, 261 (Tex. Crim. App.

2009). The standard for assessing harm

from jury-charge errors depends on whether the defendant objected to the charge

at trial. Jimenez v. State , 32 S.W.3d 233, 237 (Tex. Crim. App. 2007). Although Hudgins objected to the charge on various other grounds,

he failed to object that the charge included a capital murder submission. When a defendant fails to make a proper objection to the submission

of an unindicted offense, we will reverse only if the error is fundamental or so

egregiously harmful that the defendant has not had a “fair and impartial

trial.” Almanza v. State , 686

S.W.2d 157, 171 (Tex. Crim. App. 1984); see

Trejo , 280 S.W.3d at 261 . Errors that result in egregious harm are those that affect the very basis of

the case, deprive the defendant of a valuable right, vitally affect a defensive

theory, or make the case for conviction or punishment clearly and significantly

more persuasive. Almanza , 686 S.W.2d at 171 . Under an egregious harm analysis, we examine “the entire jury charge, the

state of the evidence, including the contested issues and weight of the

probative evidence, the arguments of counsel, and any other relevant

information revealed by the record of the trial as a whole.” Warner

v. State , 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).

Applying the above standard to this case, we conclude that

no egregious harm accrued to Hudgins as a result of the error in the jury charge. The charge first explained that Hudgins was

charged with murder and then went on to give the abstract law regarding the

offense of murder in accordance with sections 19.02(b)(1) and 19.02(b)(2) of

the Penal Code. See Tex. Penal Code Ann .

§ 19.02(b)(1) (defining murder as “intentionally or knowingly caus[ing] the

death of an individual”), (b)(2) (defining murder as “intend[ing] to cause

serious bodily injury and intentionally or knowingly committing an act clearly

dangerous to human life that cause[d] the death of an individual”). But, consistent with a charge for capital

murder, the third application paragraph erroneously instructs the jury that it

can only find Hudgins guilty of murder if it finds that the murder was

committed while in the course of committing an aggravated robbery. The charge thus required the State to prove

not only all of the elements of murder as alleged in the indictment, but also additional

elements establishing the commission of an aggravated robbery. This error increased the State’s burden; it

did not relieve the State of proving any element of the indicted offense of

murder. A jury charge error that

increases the State’s burden by requiring the State to prove additional

elements does not egregiously harm Hudgins; it benefits him. See

Watson v. State , 693 S.W.2d 938 , 941 - 42 (Tex. Crim. App. 1985).

The record also does not demonstrate that Hudgins was

deprived of notice of the charges against him or was inadequately prepared to

defend against the State’s factual theory that he, Williams, and Pierre planned

to rob the complainant and that the murder of the complainant occurred during

that aggravated robbery. The record

reflects that Hudgins knew that such would be the State’s theory; that theory,

after all, was consistent with his own recorded account of the events giving

rise to the complainant’s death. Most

importantly, however, the jury did not actually convict Hudgins of capital

murder, making this case distinct from those acknowledging fundamental error in

the submission of an unindicted offense. See,

e.g., Woodard v. State , 322 S.W.3d 648 , 658 - 59 (Tex. Crim. App. 2010) (noting that

unobjected-to and unwaived submission of unindicted offense in jury charge

followed by conviction of that offense meets egregious harm standard); Almanza , 686 S.W.2d at 173 (noting that “due

process would be violated per se by

convicting a person for murder when he had been indicted for a totally

different offense such as robbery”). The

jury returned a verdict that Hudgins was guilty of murder, not capital murder,

and the trial court rendered judgment in accordance with the jury’s verdict.

Accordingly, we overrule Hudgins’s first issue.

II. Felony Murder Submission

Hudgins next argues that he was

denied due process of law because the third and sixth application paragraphs erroneously

authorized the jury to find him guilty of a conspiracy to commit felony murder

even though felony murder was not alleged in the indictment. We disagree.

The third and sixth application paragraphs, respectively,

authorized a conviction if the jury found:

Hudgins and Williams and/or Pierre entered into an

agreement to commit the felony offense of aggravated robbery of [the

complainant], and pursuant to that agreement, . . . they did carry out their

conspiracy and . . . Irvin Williams and/or Pierre intentionally or knowingly

caused the death of [the complainant] by shooting [him] with a deadly weapon,

namely a firearm, and the murder of [the complainant] was committed in

furtherance of the conspiracy and was an offense that [Hudgins] should have

anticipated as a result of carrying out the conspiracy; or

…

Hudgins and Williams and/or Pierre entered into an

agreement to commit the felony offense of aggravated robbery of [the

complainant], and pursuant to that agreement, . . . they did carry out their

conspiracy and . . . Irvin Williams and/or Pierre intended to cause serious

bodily injury to [the complainant], and did cause the death of [the

complainant] by intentionally or knowingly committing an act clearly dangerous

to human life, namely, by shooting [him] with a deadly weapon, namely a

firearm, and the murder of [the complainant] was committed in furtherance of

the conspiracy and was an offense that the defendant should have anticipated as

a result of carrying out the conspiracy. . . .

Neither

of these paragraphs instructed the jury to consider whether Hudgins was guilty

of the unindicted offense of felony murder as defined by the Penal Code. See Tex. Penal

Code Ann. §19.02 ( b)(3)

(providing that person commits felony murder if he “commits or attempts to

commit a felony, other than manslaughter, and in the course of and in

furtherance of the commission or attempt, or in immediate flight from the

commission or attempt, he commits or attempts to commit an act clearly

dangerous to human life that causes the death of an individual”). Rather, these paragraphs combined underlying

theories of murder with an alternative “party liability” charge under section

7.02(b) of the Penal Code. See Tex.

Penal Code Ann. §7.02 ( b) (West 2011).

Party liability contemplates that conspirators to a felony are

criminally responsible for felonies committed by other conspirators in

furtherance of the conspiracy if the other felonies should have been

anticipated. See id. ; see also Woodard ,

322 S.W.3d at 649 . The language used in

the third and sixth application paragraphs tracks the language used in section

7.02(b) providing that:

If, in the attempt to carry out a conspiracy to commit

one felony, another felony is committed by one of the conspirators, all

conspirators are guilty of the felony actually committed, though having no

intent to commit it, if the offense was committed in furtherance of the

unlawful purpose and was one that should have been anticipated as a result of

the carrying out of the conspiracy.

Tex. Penal Code Ann. §7.02 ( b).

“It is well accepted that the law of parties may be applied to a case

even though no such allegation is contained in the indictment.” Montoya ,

810 S.W.2d at 165 ; see Marble v. State ,

85 S.W.3d 287, 287 (Tex. Crim. App. 2002).

Accordingly, we overrule Hudgins’s

second issue.

Ineffective

Assistance of Counsel

In his third issue, Hudgins argues

that his trial counsel was ineffective because he failed to request that the trial

court instruct the jury that evidence presented by the State to impeach

Broussard was not substantive evidence of guilt.

To

establish ineffective assistance of counsel, Hudgins must show, by a

preponderance of the evidence, (1) that his counsel’s representation fell below

the objective standard of reasonableness under prevailing professional norms,

and (2) a reasonable probability that, but for his counsel’s deficient

representation, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668 , 687 - 88, 104 S. Ct. 2052, 2064 (1984); Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App.

2002). Appellate review of counsel’s

representation is highly deferential; we presume counsel’s decisions fell

within the wide range of reasonable and professional assistance. Bone , 77 S.W.3d at 833 ; Mallet v. State , 65 S.W.3d

59 , 63 (Tex. Crim. App. 2001); Tong v. State , 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). To rebut the

presumption of reasonable assistance, allegations of ineffectiveness must be

firmly founded in the record. Thompson v. State , 9

S.W.3d 808, 813 (Tex. Crim. App. 1999) . The record is best developed by collateral attack, such

as a motion for new trial. Jackson v. State , 973 S.W.2d 954, 957

(Tex. Crim. App. 1998). An appellate court may not reverse a

conviction for ineffective assistance of counsel when counsel’s acts or

omissions may have been based on sound trial strategy and the record contains

no specific explanation for counsel’s decisions. Bone , 77 S.W.3d at 830 .

The record does not

reflect a specific reason why Hudgins’s counsel did not request a limiting

instruction during the State’s presentation of impeachment evidence. According to Hudgins, we should conclude that

this failure was an oversight, and not strategic, because counsel noted during

the charge conference that neither Broussard’s testimony nor the State’s

impeachment evidence was evidence of guilt.

But, Hudgins did not file a motion for new trial alleging ineffective

assistance of counsel, so no evidence explaining counsel’s trial strategy was

developed. Cf. Ex Parte Varelas , 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (concluding

that counsel’s performance was deficient based on post-conviction affidavit

from counsel clarifying that challenged omission was not result of trial

strategy). Courts have recognized as reasonable

strategy the decision not to request a limiting instruction in order to avoid

reminding the jury of incriminating evidence.

See, e.g. , Garcia v. State , 887 S.W.2d 862, 881

(Tex. Crim. App. 1994); Beheler v. State ,

3 S.W.3d 182, 186 (Tex. App.—Fort Worth 1999, no pet.). Absent record evidence regarding counsel’s

strategy, we cannot speculate as to whether a valid strategy existed, and thus Hudgins

cannot rebut the strong presumption of reasonable assistance.

Accordingly, we overrule Hudgins’s third issue.

Conclusion

We

hold that there is no reversible error in the trial court’s jury charge. We also hold that Hudgins was not denied

effective assistance of counsel. We

affirm the judgment of the trial court.

Harvey

Brown

Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. Tex. R. App. P . 47.2(b).

[1] See Tex. Penal Code Ann. §19.02(b) (West 2011).

[2]

Although the trial court’s error

in submitting a capital murder submission is challenged as a part of his first

issue presented, Hudgins does not discuss this issue first in the argument

section of his brief. We follow the

order listed in his issues presented, and address the capital murder submission

first.