Opinion issued July 14, 2016




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                               NO. 01-15-00012-CR
                          ———————————
                    ROCHAWN RAY DAVIS, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 405th District Court
                        Galveston County, Texas
                     Trial Court Case No. 14CR0800


                        MEMORANDUM OPINION

      A jury convicted appellant Rochawn Ray Davis of the state-jail felony

offense of possession of cocaine in an amount less than one gram. See TEX.

HEALTH & SAFETY CODE § 481.115(b); TEX. PENAL CODE § 12.35. The court found

two enhancement allegations true and sentenced Davis to 14 years in prison. See
TEX. PENAL CODE § 12.425(b). Davis raises three issues on appeal. He argues that

the trial court erred by denying his request for a presentence investigation prior to

sentencing, the evidence was insufficient to support the court’s finding that the

enhancement allegations were true, and his trial counsel rendered ineffective

assistance by failing to advise him of his right to elect court or jury sentencing.

      Finding no reversible error, we affirm.

                                     Background

      Galveston Police Officer G. Parris stopped Rochawn Davis for a routine

traffic violation. The officer noticed an open bottle of beer in the center console of

Davis’s pickup truck. With permission from Davis, Officer Parris poured out the

beer, observing that the bottle was nearly full and still cold. It was just after 8:00

pm on a Friday night, and Davis said that he was returning home from a long work

shift. When a bystander approached the truck, Officer Parris called for backup.

When Officers Martinez and Cantu arrived, Davis became visibly nervous. Officer

Parris requested and obtained consent to search the truck.

      Two beige colored rocks of crack cocaine, which were later determined to

weigh approximately 1.53 grams, were found in the center console cup holder. A

smaller crumb of crack cocaine, which was estimated to weigh much less than a

gram, was found on the driver’s seat.




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      Davis was arrested and charged with possession of cocaine in an amount

between one and four grams. The indictment included two enhancements, alleging

that Davis had been convicted twice previously of the felony offense of possession

of a controlled substance, the second conviction occurring after the first had

become final. At trial, there was some evidence that Davis had told the responding

police officers that the rocks of crack cocaine found in the center console belonged

to his uncle. The court submitted a charge on the lesser-included offense of

possession of less than a gram of cocaine based on the defensive theory that Davis

was not in possession of the rocks of cocaine found in the center console but only

of the crumb of cocaine found on the driver’s seat. The jury convicted Davis of this

lesser-included offense, which is a state-jail felony.

      Defense counsel then announced on the record that Davis had elected trial-

court sentencing. Observing that a sentence less than ten years was possible, he

requested that a presentence investigation report (PSI) be prepared before final

sentencing.

      The trial court heard punishment evidence, including seven prior criminal

judgments that were admitted without objection. These judgments showed a

pattern of criminal activity, spanning 20 years, beginning when Davis was 20 years

old, including 13 criminal convictions, among them possession of a controlled

substance, assault causing bodily injury, and evading arrest.



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      Galveston County Sheriff’s Deputy W. Kilburn testified that he is a forensic

investigator with expertise in fingerprint analysis. He testified that he took Davis’s

fingerprints that day, recorded them on a print card, and compared them to the

print cards that related to the judgments for the convictions alleged as

enhancements in the indictment. Deputy Kilburn testified that the fingerprints were

made by the same person.

      Davis presented mitigating evidence from his fiancée and sister, both of

whom asked the court for leniency. His fiancée testified that she depended on him

for financial support and physical assistance because she is physically disabled.

She also praised his influence on her teenaged daughter. Davis’s sister testified that

he helped care for their mother.

      After presenting its punishment evidence, defense counsel reiterated the

request for a PSI: “Subject to the PSI that we’ve requested we have no further

evidence to present to the Court at this time. So we rest subject to the PSI.” After a

discussion about eligibility for community supervision, the court realized that

Davis had not been formally arraigned on the enhancement allegations. The court

reopened the punishment hearing to allow the State to formally arraign Davis as to

the enhancement allegations. He pleaded not true to both. Defense counsel

specifically asked whether the court was denying the requested PSI. The trial court




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did not specifically rule on the motion for a PSI. Instead, the court invited both

parties to submit briefs as to Davis’s eligibility for community supervision.

      Approximately five weeks later, the trial court held a hearing for entry of

judgment and sentenced Davis to 14 years in prison. No mention was made of a

PSI; neither a PSI nor a waiver of a PSI appears in the record.

      Davis filed a motion for new trial, arguing that his trial counsel rendered

ineffective assistance of counsel. Among other things, the motion alleged that trial

counsel failed to advise him that he had the right to elect judge or jury sentencing,

failed to elect to have the judge consider a PSI prior to rendering judgment, and

failed to inform him that he had the right to challenge the enhancement allegations.

The trial court held an evidentiary hearing at which both Davis and his trial

counsel, Mark Aronowitz testified. Aronowitz testified that he counseled Davis on

each of these matters. His strategy was to elect trial court-sentencing because he

expected that after convicting Davis on a lesser-included offense, learning of his

extensive criminal record would cause the jury to be unsympathetic, and he

anticipated that this would result in an especially harsh punishment. He testified

that Davis urged him to proceed to sentencing without the PSI because he was

becoming anxious waiting and wanted finality. He also candidly admitted that

Davis had been unhappy with his representation.




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      Davis testified that he followed his attorney’s advice regarding the PSI and

election of trial court sentencing, but he continued to assert that his attorney did not

explain his choices or any strategy to him. He testified that his counsel’s testimony

about his trial strategy was a lie.

      The motion for new trial was overruled by operation of law, and Davis

appealed.

                                       Analysis

      Davis challenges his sentence in three issues. In his first issue, he challenges

the trial court’s entry of his sentence without the benefit of a PSI. In his second

issue, he challenges the evidence to support the enhancement allegations, without

which the punishment range would have been lower. In his third issue, he asserts

that he received ineffective assistance of counsel because his attorney allegedly

failed to inform him that he had the right to elect to have the jury assess

punishment.

I.    Denial of presentence investigation report

      In his first issue, Davis argues that the court committed reversible error by

denying his request for a PSI. Specifically, he contends that the court erred by

failing to order a PSI because the statutory duty to do so is mandatory. The Code of

Criminal Procedure provides:

      Except as provided by Subsection (g), before the imposition of
      sentence by a judge in a felony case, . . . the judge shall direct a


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      supervision officer to report to the judge in writing on the
      circumstances of the offense with which the defendant is charged, the
      amount of restitution necessary to adequately compensate a victim of
      the offense, the criminal and social history of the defendant, and any
      other information relating to the defendant or the offense requested by
      the judge. It is not necessary that the report contain a sentencing
      recommendation, but the report must contain a proposed client
      supervision plan describing programs and sanctions that the
      community supervision and corrections department would provide the
      defendant if the judge suspended the imposition of the sentence or
      granted deferred adjudication.

TEX. CODE CRIM. PROC. art. 42.12, § 9(a). Subsection (g) provides an exception

from the requirement to prepare a PSI when punishment will be assessed by a jury,

the offense is capital murder, the only available punishment is imprisonment, or

the defendant has agreed to imprisonment under a plea bargain agreement which

the judge intends to follow. Id. art. 42.12, § 9(g).

      Davis was convicted of possession of less than a gram of cocaine, which is a

state-jail felony. None of the subsection (g) exceptions applied because Davis did

not elect jury sentencing, he was not convicted of capital murder, the punishment

range for a state-jail felony does not preclude community supervision, and there

was no plea bargain. As such, the Code of Criminal Procedure required a PSI. See

Whitelaw v. State, 29 S.W.3d 129, 132 (Tex. Crim. App. 2000).

      Based on Aronowitz’s testimony about conversations with his client, the

State argues that Davis waived the right to have a PSI prepared. Defense counsel

requested a PSI after the jury returned its guilty verdict and before the punishment



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hearing began. At the conclusion of the punishment hearing, defense counsel again

asked for a PSI, and after a discussion about whether Davis was eligible for

community supervision, defense counsel specifically asked whether the court was

denying the requested PSI. The trial court did not specifically grant or deny the

request for a PSI. Approximately five weeks later, the court held a hearing on entry

of judgment and, without a PSI, sentenced Davis to 14 years in prison.

      In Jimenez v. State, 446 S.W.3d 544 (Tex. App.—Houston [1st Dist.] 2014,

no pet.), this court held that a trial court implicitly denied a request for a PSI by

holding a punishment hearing without first obtaining a PSI. Jimenez, 446 S.W.3d

at 550. In this case, the trial court both received evidence relevant to punishment

and entered judgment without obtaining a PSI. We conclude that the trial court

implicitly denied Davis’s request for a PSI.

      Failure to order a PSI is statutory error, and we apply the harm analysis for

non-constitutional error. See TEX. CODE CRIM. PROC. art. 42.12, § 9(a); TEX. R.

APP. P. 44.2(b). Neither Davis nor the State has the burden on the question of

harm; instead, we review the record as a whole to determine if there was any harm,

disregarding any error that does not affect substantial rights. See Johnson v. State,

43 S.W.3d 1, 5 (Tex. Crim. App. 2001); TEX. R. APP. P. 44.2(b).

      In his brief, Davis contends that he was harmed simply because he was

denied a full punishment hearing. Nothing in the record identifies any mitigation



                                          8
evidence that could have been presented in a PSI. Davis’s motion for new trial

affidavit did not present new mitigating facts or identify new witnesses. Nor did

his testimony from the hearing on his motion for new trial. At the hearing on the

motion for new trial, defense counsel testified: “All the evidence that would have

been in a presentence report was given by testimony in the punishment hearing.”

For example, in the original punishment hearing, the court learned of Davis’s

extensive criminal history, his recent work history, and the supportive role he

played in his family.

      To show harm, Davis was required to show that his substantial rights were

affected by the error committed by the trial court. No such harm has been shown in

this case, when there has been no showing that the lack of a PSI could have had

any influence on the trial court’s sentence. The record does not show that the lack

of a PSI affected Davis’s substantial rights. Accordingly, we overrule this issue.

II.   Sufficiency of the evidence to support enhancements

      In his second issue, Davis argues that there is “no evidence” that he is the

same person who was convicted in the prior felonies relied upon as enhancements

for the charged offense.

      “To establish that a defendant has been convicted of a prior offense, the

State must prove beyond a reasonable doubt that (1) a prior conviction exists, and

(2) the defendant is linked to that conviction.” Flowers v. State, 220 S.W.3d 919,



                                          9
921–22 (Tex. Crim. App. 2007). No particular manner of proof or specific words

are required to establish either element. Id. at 922. “Just as there is more than one

way to skin a cat, there is more than one way to prove a prior conviction.” Id.

      When reviewing the legal sufficiency of the punishment-phase evidence, we

view the evidence in the light most favorable to the outcome and determine

whether any rational trier of fact could have believed beyond a reasonable doubt

that Davis was the person who committed the two prior offenses alleged in the

indictment. See Williams v. State, 273 S.W.3d 200, 213 (Tex. Crim. App. 2008);

see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). The

trier of fact is the sole judge of the weight and credibility of the evidence. See

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). “We do not resolve

any conflict of fact, weigh any evidence, or evaluate the credibility of any

witnesses, as this is the function of the trier of fact.” Wiley v. State, 388 S.W.3d

807, 813 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d); see Dewberry v. State,

4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

      Deputy Kilburn testified at trial that he took Davis’s fingerprints on a card

that same day, and the card was introduced into evidence as Exhibit 13. In

addition, judgments from the two prior convictions alleged in the indictment were

introduced into evidence without objection as Exhibits 14 and 15. He testified that

he compared the fingerprints on the judgments to the fingerprints on the print



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cards, and they matched. In his brief, Davis quoted the entirety of the Deputy

Kilburn’s testimony regarding the fingerprint comparisons, and we reprint it here:

      Q.    Now, did you compare those fingerprints with any judgment?

      A.    Yes, sir, I did.

      Q.    And when you compared those fingerprints, did you match the
            fingerprints from the print card to the judgment?

      A.    Yes, sir.

      Q.    And were they identical—were the fingerprints on the
            judgments identical to the fingerprint on the print card?

      A.    In my experience I would say that they were both made by the
            same source.

      Q.    I’m going to show you what has been marked as State’s Exhibit
            14 and 15. Do you recognize these documents?

      A.    Yes, sir.

      Q.    And are these the same documents in which you compared to
            the known fingerprints earlier today?

      A.    Yes, sir.

      Q.    Do they fairly and accurately represent the same print cards that
            you used to make that comparison?

      A.    Can I flip through them real quick?

      Q.    Yes.

      A.    Yes, sir.

      Q.    And have they been altered in any way?

      A.    No, sir.


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Davis’s appellate argument on this point concludes:

       The evidentiary problem for the State is that the only question asked
       to connect the two documents (S. Ex. 14 & 15) to the known print
       card (S. Ex. 13) beyond a reasonable doubt is the last question and it
       is posed as a foundation question. By asking, “do they fairly and
       accurately represent the same print cards,” the State has not offered
       any credible evidence that the prints from Appellant match the prior
       judgments.

       Although Davis frames this issue as a lack of evidence to support the

enhancements, the argument identifies a conflict of fact or inconsistency in the

evidence that lies wholly within the province of the trier of fact to resolve. Deputy

Kilburn’s testimony showed that he took Davis’s fingerprints on the day of trial,

compared them to the fingerprints associated with his two prior convictions, and

found that all three sets of fingerprints were “made by the same source.” The trial

court as factfinder was entitled to believe Deputy Kilburn’s testimony if it found

him to be credible.

       We hold that the evidence is legally sufficient to support the trial court’s

findings that the enhancement allegations were true, and we overrule this issue.

III.   Ineffective assistance of counsel

       In his third issue, Davis argues that he received ineffective assistance of

counsel because his attorney allegedly did not tell him that he had a right to elect

jury sentencing. Because Davis first raised the issue of ineffective assistance of

counsel in a motion for new trial, we must determine whether the trial court abused



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its discretion by denying the motion for new trial. See Riley v. State, 378 S.W.3d

453, 457 (Tex. Crim. App. 2012). At a hearing on a motion for new trial, the trial

court is the sole judge of witness credibility. Acosta v. State, 411 S.W.3d 76, 90

(Tex. App.—Houston [1st Dist.] 2013, no pet.). We defer to the trial court on

factual matters, viewing the evidence in the light most favorable to the court’s

ruling, which we will reverse only if it was arbitrary, clearly erroneous, or not

supported by any reasonable view of the record. Riley, 378 S.W.3d at 457.

      To prevail on a claim of ineffective assistance of counsel, an appellant must

demonstrate by a preponderance of the evidence that (1) his trial counsel made

errors so serious that he was not functioning as counsel under the Constitution and

(2) a reasonable probability exists that, but for trial counsel’s deficient

performance, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Bone

v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

      At the hearing on the motion for new trial, Davis and his trial counsel gave

conflicting testimony about the election for trial court sentencing. Davis testified

that he never discussed with his attorney whether to elect jury or trial court

sentencing. He did not recall hearing his attorney announce in open court that he

had elected trial court sentencing. He testified that he did not know that he had to

make the election before trial. But then Davis interjected:



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      This is not my first time in jail. . . . It’s common knowledge in the
      jailhouse that juries will not normally—unless it’s a violent crime—
      give out more time than a judge. . . . I didn’t know that I had to pick
      one before the jury started. I thought that after the jury came back, I
      got to pick jury or judge.

      Aronowitz testified that there was no written election for trial court

sentencing, but he specifically remembered conferring with Davis at a pretrial

hearing when the trial court directed him to do so and state the election on the

record. He testified that he specifically recalled informing Davis of his right to

have the jury assess his punishment. He recommended not to have the jury assess

punishment, and Davis accepted that recommendation. Aronowitz testified that he

considered Davis’s extensive criminal history in making this recommendation.

Davis, who was in his mid-forties, had 13 prior criminal convictions spanning 20

years, including three felonies.

      Aronowitz considered three possible outcomes from the guilt-or-innocence

phase. If the jury found Davis not guilty, the punishment election was irrelevant. If

the jury found him guilty of the offense as charged in the indictment, the risk was

that the jury also would find the enhancement allegations true, increasing the

punishment range to 25 years to life in prison. Aronowitz believed that faced with

a lengthy criminal history, which essentially showed convictions in every year in

which Davis was not already in prison, the jury would assess a harsh punishment.

A third possible outcome was that the jury would find Davis guilty of the lesser-



                                         14
included offense, possession of the smaller amount of cocaine, as the jury actually

did. In that circumstance, Aronowitz was concerned that he and Davis would lose

credibility with the jury upon the admission of Davis’s lengthy criminal history. If

the jury felt tricked, it might be inclined to assess a harsh penalty. On the other

hand, Aronowitz also believed that the charged offense would be seen as “a run-of-

the-mill drug case” by the trial court, unlikely to draw an unusually stiff

punishment.

      Davis raised this complaint of ineffective assistance of counsel in the trial

court by way of his motion for new trial. The trial court was the sole judge of the

credibility of the witnesses and as such was tasked with resolving the directly

conflicting testimony on the fact question of whether Aronowitz advised Davis

about his right to elect to have the jury assess punishment. See Acosta, 411 S.W.3d

at 90. It was within its discretion to accept Aronowitz’s testimony and reject the

contrary testimony offered by Davis. Accepting Aronowitz’s testimony as true

would negate a finding of ineffective assistance of counsel on the matter of

whether he advised Davis regarding the punishment election. As such, we conclude

that the court did not abuse its discretion by allowing the motion for new trial to be

denied by operation of law. We overrule Davis’s third issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Higley, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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