The 10 WORST U.S. Prosecutors Named: Texas Leads List with Four
United States Attorney General, Alberto Gonzales, was selected as the worst prosecutor out of 10 in the nation in 2007 for his involvement in the firings of nine U.S. Attorneys and the politicization of the Justice Department. At a close second, Texas ex-prosecutor Terry D. McEachern, who is best known for seeking unlawful cocaine possession charges against the African-American community of Tulia, Texas, and withholding exculpatory evidence. Next selected, former North Carolina D.A. Michael Nifong, for the widely-publicized debacle in the rape prosecution of Duke Lacrosse players causing his disbarment for having engaged in dishonesty, fraud, and withholding exculpatory information.
While a prosecutor’s job is to seek justice, there have been numerous instances in U.S history where federal and state prosecutors have engaged in unethical conduct simply to secure a conviction where otherwise not possible if they had played “by the rules.” The “Ten Worst Prosecutors” list carefully researched and produced by the Bennett Law Firm (BLF) in Houston, Texas, features a handful of recent occurrences where federal and state prosecutors did not play “by the rules” with respect to evidence in criminal trials and ruined the lives of innocent people to further their own professional careers.
The BLF and the “Bad Prosecutor Blog” website (visit: http://bennettlawfirm. typepad.com/badprosecutors) chose to recognize the ten worst prosecutors in the United States in 2007 to bring about an open discussion of prevalent prosecutorial misconduct, and most importantly, to stress the importance of holding bad prosecutors accountable for their unlawful indiscretions. For over thirty years, the BLF has been involved in criminal, civil, and administrative investigation. BLF Attorney Robert S. “Bob” Bennett, a former federal prosecutor, has been qualified as an expert on prosecutorial abuse and prosecutorial recusal. Mr. Bennett has also published numerous articles and has given countless speeches on these topics.
Prosecutorial misconduct ranges from hiding, destroying, or tampering with evidence, case files or court records; failing to disclose exculpatory evidence; using false or misleading evidence during trial; to improper behavior during grand jury proceedings. The BLF’s “Ten Worst” list exposes the harsh reality that bad prosecutors are not always disciplined for such misconduct and, in most cases, continue practicing law without missing a beat. The BLF and the website strongly believe that the list will heighten public awareness and, in turn, help curb unjust prosecutions and deter future prosecutorial misconduct.
Other bad prosecutors selected for the BLF “Ten Worst” list include the likes of Louisiana Attorney General Charles Foti, Jr., Massachusetts Assistant U.S. Attorney Jeffrey Auerhahn, Georgia Prosecutor David McDade, Oklahoma D.A. Bill Peterson, L.A. City Attorney Rocky Delgadillo, and Texas licensed attorneys: Charles Sebesta and Randall W. Reynolds.
Foti’s persistence in attempting to prosecute a doctor and two nurses after hurricane Katrina and making extrajudicial statements surrounding their guilt have secured him a spot on the BLF’s “Ten Worst” list. Auerhahn’s blatant disregard for the constitutional rights of an innocent man which resulted in a 22 year sentence and 13 years behind bars before it was ever discovered has earned him a listing as well. McDade was selected for overzealously prosecuting a 17-year-old over oral sex with a consenting 15-year-old girl under an archaic loophole in Georgia law (which has now been abolished) and for distributing a video of the sexual encounter in violation of federal child pornography laws.
Texas prosecutor, Charles Sebesta, makes an appearance on the list for presenting false, misleading evidence and not disclosing an exculpatory confession during the murder prosecution of Anthony Graves which resulted in his conviction and being sent to death row for capital murder in 1994. Ward County D.A, Randall W. Reynolds, was selected for dragging his feet in response to reliable allegations of sexual abuse of inmates at the West Texas State School in Pyote, Texas, and delaying the prosecution of two accused prison guards for more than 2 years.
Also selected was prosecutor Bill Peterson for inspiring John Grisham to write a novel about his vigorous yet erroneous prosecution and conviction of Ron Williamson for capital murder in 1988 on weak physical evidence and jailhouse informants. Last, but certainly not least, the list includes the Harvard-educated L.A. City Attorney, Rocky Delgadillo, who is best known for prosecuting famed Paris Hilton and publicly admitting that he misused public resources by negligently allowing his accident-prone wife to use a city vehicle for personal errands resulting $1,200 of damage and then letting taxpayers foot the bill, all the while complaining about a two-tiered judicial system that gives “special treatment” to the privileged.
If you would like to obtain a copy of the BLF’s “Ten Worst Prosecutors” Article, please visit http://bennettlawfirm.typepad.com/badprosecutors or contact Scott Chauveaux at 713-225-6000; e-mail Schauveaux@bennettlawfirm.com. To contact BLF Attorney Bob Bennett, visit: www.bennettlawfirm.com or email Bbennett@bennettlawfirm.com.
Thursday, March 20, 2008
Friday, March 14, 2008
failure to object was “so outrageous that no competent attorney would have engaged in it.” but that would require "working harder"
NUMBER 13-02-218-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ALEJANDRO RODRIGUEZ MATA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 257th District Court of Hidalgo County, Texas.
O P I N I O N
Before Justices Yañez, Rodriguez and Baird Footnote
Opinion by Justice Baird
Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote
I. Self Defense and Defense of Third Person.
Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.
A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.
The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).
Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.
According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.
For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).
Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.
II. Ineffective Assistance of Counsel.
Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).
The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.
1.
The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”
We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.
2.
The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).
The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.
3.
The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.
4.
The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.
Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.
In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.
B. The Punishment Phase.
The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.
1. The Erroneous Instruction.
Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
See id. (emphasis added).
However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.
2. The Improper Argument.
After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:
The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.
For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.
So you know parole does exist in reality.
And so that will help you understand those issues.
(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.
The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).
Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.
Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).
Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).
Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.
In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.
Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.
Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.
In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.
The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).
_________________________
CHARLES BAIRD,
Justice
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 12th day of August, 2004.
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ALEJANDRO RODRIGUEZ MATA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 257th District Court of Hidalgo County, Texas.
O P I N I O N
Before Justices Yañez, Rodriguez and Baird Footnote
Opinion by Justice Baird
Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote
I. Self Defense and Defense of Third Person.
Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.
A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.
The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).
Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.
According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.
For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).
Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.
II. Ineffective Assistance of Counsel.
Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).
The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.
1.
The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”
We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.
2.
The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).
The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.
3.
The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.
4.
The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.
Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.
In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.
B. The Punishment Phase.
The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.
1. The Erroneous Instruction.
Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.
See id. (emphasis added).
However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.
2. The Improper Argument.
After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:
The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.
For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.
So you know parole does exist in reality.
And so that will help you understand those issues.
(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.
The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).
Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.
Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).
Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).
Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.
In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.
Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.
Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.
In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.
The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).
_________________________
CHARLES BAIRD,
Justice
Publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 12th day of August, 2004.
Thursday, January 24, 2008
Sec. 36.05. Tampering with Witness.
(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing;
(3) to elude legal process summoning him to testify or supply evidence;
(4) to absent himself from an official proceeding to which he has been legally summoned; or
(5) to abstain from, discontinue, or delay the prosecution of another.
(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a).
(c) It is a defense to prosecution under Subsection (a)(5) that the benefit received was:
(1) reasonable restitution for damages suffered by the complaining witness as a result of the offense; and
(2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state who represented the state in the case.
(d) An offense under this section is a state jail felony.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 721, Sec. 1, eff. Sept. 1, 1997.http://www.bakers-legal-pages.com/fastlaws/pc2004/00000216.htm
(a) A person commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:
(1) to testify falsely;
(2) to withhold any testimony, information, document, or thing;
(3) to elude legal process summoning him to testify or supply evidence;
(4) to absent himself from an official proceeding to which he has been legally summoned; or
(5) to abstain from, discontinue, or delay the prosecution of another.
(b) A witness or prospective witness in an official proceeding commits an offense if he knowingly solicits, accepts, or agrees to accept any benefit on the representation or understanding that he will do any of the things specified in Subsection (a).
(c) It is a defense to prosecution under Subsection (a)(5) that the benefit received was:
(1) reasonable restitution for damages suffered by the complaining witness as a result of the offense; and
(2) a result of an agreement negotiated with the assistance or acquiescence of an attorney for the state who represented the state in the case.
(d) An offense under this section is a state jail felony.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 721, Sec. 1, eff. Sept. 1, 1997.http://www.bakers-legal-pages.com/fastlaws/pc2004/00000216.htm
Wednesday, January 16, 2008
Lazy and my Anders that this opinion is Just ..nope, Justice is for those that can afford it,
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NUMBER 13-05-004-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JULIE ANNE FLOWERS A/K/A
JULIE ANNE RICHARDSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas
MEMORANDUM OPINION ON REMAND
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant, Julie Anne Flowers a/k/a Julie Anne Richardson, was charged with twenty-two counts of forgery, a state jail felony. See Tex. Penal Code Ann. § 32.21(b), (d) (Vernon Supp. 2005). The jury returned a verdict of not guilty on counts 1, 2, and 5 through 22, and a verdict of guilty on counts 3 and 4, which charged forgery of a check in the amount of $253.08 made payable to Aaron's Rental. (1) See id. § 32.21(a)(1)(A)(i), (B). The trial court sentenced Flowers to one year confinement in a state jail facility, probated for a period of three years. It also assessed a $500.00 fine plus court costs and restitution in the amount of $253.08. By two points of error, Flowers challenges the legal and factual sufficiency of the evidence to support the verdict.
In our original opinion and judgment, we held that the evidence was legally sufficient but factually insufficient under the standards of review in effect at the time. Flowers v. State, No. 13-05-004-CR, 2006 Tex. App. LEXIS 4360 (Tex. App.--Corpus Christi May 18, 2006), rev'd and judgm't vacated, In re Flowers, PD-1298-06, 2007 Tex. Crim. App. LEXIS 41 (Tex. Crim. App. Jan. 10, 2007) (per curiam). On January 10, 2007, the Texas Court of Criminal Appeals vacated our opinion and judgment and remanded the case for reconsideration in light of its opinion in Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), which re-articulated the factual sufficiency standard of review. Id. at 415-17. Reconsidering the factual sufficiency point of error in light of Watson, we affirm the trial court's judgment.
I. Standard of Review
In a legal sufficiency review, we consider all of the evidence in the record in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The reviewing court considers all evidence admitted at trial, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). This standard applies regardless of whether the case is founded upon direct or circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.-Corpus Christi 1997, pet. ref'd).
When reviewing the factual sufficiency of the evidence we look at all evidence in a neutral light and will reverse only if (1) the evidence is so weak that the finding seems clearly wrong and manifestly unjust or (2) considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. This Court will not reverse the jury's verdict unless, we can say with some objective basis in the record, the great weight and preponderance of the evidence contradicts the verdict. Id. at 415.
We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.--Corpus Christi 2002, pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof." Malik, 953 S.W.2d at 240.
Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9.
II. Analysis
A. The Law
If a person forges a writing with intent to defraud or harm another, he commits an offense. Tex. Penal Code Ann. § 32.21(b) (Vernon Supp. 2005). Section 32.21 of the Texas Penal Code provides, in relevant part, that "forge" means "to make . . . or execute any writing so that it purports . . . to be the act of another who did not authorize that act." Id. § 32.21(a)(1)(A)(i). "Forge" also means to pass that writing. See id. § 32.21(a)(1)(B). Proof of intent to defraud is derivative of other elements; thus, in a forgery case, the culpable mental state of "intent to defraud or harm" can be inferred if the State proves that the defendant knew that the writing in question was forged. See Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (op. on reh'g) (en banc). Here, it is undisputed that Flowers executed the check at issue by signing Young's name to it and passing it to Aaron's Rental. The State's burden was therefore to prove that Flowers acted without Young's authorization. See id.
B. Testimony and Evidence Admitted at Trial
At trial, Flowers, who was hired as a bookkeeper but who also assumed other responsibilities at Young's bed and breakfast inn, admitted signing Young's name to check number 10530 dated January 12, 2004, that was made payable to Aaron's Rental for a payment on her big-screen television rental contract agreement. She also admitted passing the check to Aaron's Rental. Flowers testified, however, that she had Young's permission to sign and pass the check. Flowers testified that Young borrowed her television in order to honor a coupon being used by clients of the bed and breakfast inn. She explained that in mid-December/January, she and Young discussed reservations and the need for a big screen television. Flowers had a big screen television and was a payment behind on its rental. Flowers testified that "[Young] agreed to make the payment on . . . the big screen TV, and [Flowers] would make up the difference but [Young] would pay the entire amount, and that's exactly what happened . . . ." Flowers testified that they "had discussed it several times before." Additionally, Flowers's February 15, 2004 pay stub reflected a $120.36 deduction from her paycheck. This amount was approximately half of the $253.08 paid to Aaron's Rental.
Testifying at trial, Young agreed that he was aware Flowers was going to sign a check for the rental of a big screen television and that Flowers did so at his direction to ensure that his clients would have a television available to them during their stay at the bed and breakfast inn. Young testified that "[Flowers], at that point was more or less running what was going on" and he "trusted [his] business to [Flowers] to watch over these type of things." Young stated that he assumed Flowers had rented a television as they had done that in the past. He admitted that Flowers may have told him that they could use hers, "but in the confusion of everything, [he didn't] really remember." He may have known that they were going to use Flowers's television, but not that they were going to rent a television set for $250. Young testified that he thought the rental was for one night, not for a whole week. Flowers told him she would bring a big screen television, and Young assumed she was going to rent one for thirty or forty dollars a night. Young testified that he did not authorize Flowers to write a check for her account balance on the television.
Colby Urbanovsky, a former employee of the bed and breakfast inn, testified that he and another co-worker picked up a big screen television from Flowers's house and delivered it to the main house at the bed and breakfast inn. The television was there for about two weeks, even though the coupon used by the clients was for one weekend. Urbanovsky also testified that he believed Young knew the television had been brought from Flowers's house because Aaron's Rental did not deliver it.
Regarding the signing of business checks, Young testified that he would give Flowers permission to sign his name on certain checks, but then he would tell her not to sign any other checks. There is also testimony that on a number of occasions, after Flowers had signed his name on checks to vendors, Young authorized those acts as to regular vendors. Aaron's Rental, however, was not one of those vendors. Additionally, Young authorized Flowers to sign his name on a $3,100.00 check made payable to Flowers to be used to buy a new car. (2) Nonetheless, Young testified that he never gave Flowers carte blanche to sign checks. He testified that he told her, "Julie, do not - [y]ou know, if you're going to - [i]f you're in an emergency and you're going to sign one, you must call me and we must talk it over, and I must approve it on an individual basis." Flowers testified that Young did not tell her not to write anymore checks, although he would say not to sign any more of a specific type of check until they talked about it. Finally, Urbanovsky testified that, on occasion, he heard Young tell Flowers to sign a check because he was not there to do so. He also heard Young tell Flowers not to sign any more checks and if she had to, to call him. In addition, other employees testified that, some time after March 2004, they heard Young tell Flowers not to sign any more checks.
C. Legal Sufficiency
By her first point of error, Flowers contends that the evidence is legally insufficient to sustain her conviction for forgery. She asserts that no rational trier of fact could have found beyond a reasonable doubt (1) that claimant, Luther Young, III, had not authorized her to sign his name to a business check made payable to Aaron's Rental and (2) that Flowers passed a check with intent to defraud or harm Young. (3)
Considering all of the above evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Young did not authorize Flowers to sign his name and pass check number 10530. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95.
Young testified that although he authorized Flowers to sign his name on certain checks, he did not authorize a payment towards her Aaron's Rental account balance. Moreover, Aaron's Rental was not one of his regular vendors for which he would authorize her to sign checks. He assumed that Flowers, who performed numerous tasks in addition to the bookkeeping at the bed and breakfast inn, had rented a television as they had done in the past, for perhaps thirty or forty dollars a night. Although Flowers testified that Young agreed to make her payment to Aaron's Rental, questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact, and the jury could have given more credibility and weight to Young's testimony. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7.
Concluding that the jury could have found Young did not authorize the check at issue in this case, the jury was entitled to infer that Flowers possessed the culpable mental state of "intent to defraud or harm." See Huntley, 4 S.W.3d at 814. Accordingly, we hold that the evidence was legally sufficient to support the jury's verdict as to counts three and four of the indictment. Flowers's first point of error is overruled.
D. Factual Sufficiency
In her second point of error, Flowers complains that the evidence is factually insufficient to sustain her conviction for forgery. More specifically, Flowers complains that the evidence is factually insufficient to establish the "not authorized" element of the offense. We disagree.
In our original opinion in this appeal, our factual sufficiency review was largely guided by the following standard articulated by the court of criminal appeals in Zuniga v. State:
When reviewing a challenge to the factual sufficiency of the evidence to support the jury's finding, we must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in its finding beyond a reasonable doubt. We may find the evidence to be factually insufficient in the following ways: (1) if the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt, then we must find the evidence insufficient; or (2) if, when we weigh the evidence supporting and contravening the finding, we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient.
Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004), overruled by Watson, 204 S.W.3d at 417. In Watson, the court of criminal appeals stated the following:
Any holding that a criminal appellate court can reverse and remand for a new trial even when the evidence "preponderates" in favor of a conviction is inconsistent with that historically required high level of skepticism.
. . . We therefore disavow such language in Zuniga and reiterate that it is not enough that the appellate court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. An appellate court judge cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. . . . We have always held that an appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.
Watson, 204 S.W.3d at 417. Therefore, we must now apply the standard articulated in Watson to Flowers's factual sufficiency challenge.
Flowers argues that there was evidence that (1) Young allowed Flowers to handle business regarding the bed and breakfast inn, (2) Young gave Flowers prior authorization to sign checks, including this check, (3) Young directed her to get a television to honor a coupon, (4) Flowers acquired a big screen television for the bed and breakfast inn, (5) Young was aware that Flowers's television was to be used and was, in fact, used for his clients' stay at the bed and breakfast inn, and (6) Young took a deduction from Flowers's paycheck which equaled approximately half of the monthly rental amount paid to Aaron's Rentals for the television.
Young testified that although he gave Flowers permission to sign his name on certain checks, he told her several times not to sign his name on any checks without his prior authorization. Young testified that he told Flowers, "If you're in an emergency and you're going to sign one [a check], you must call me and we must talk it over, and I must approve it on an individual basis." Moreover, when the State asked Young, "Did you ever authorize Julie Richardson [Flowers] to write a check for the [Aaron Rentals'] account balance for this T.V.?" Young answered, "Absolutely not." Kirk Scott, a former employee of the bed and breakfast inn, testified that he overheard Young tell Flowers he did not want her signing his name on any checks. Leticia G. Ramirez, an employee of Young, testified she heard Young "tell Julli [sic] not to sign any more checks." Ramirez reiterated during re-cross examination that she heard Young tell Flowers, "Do not sign any checks."
As the sole judge of the credibility of the witnesses and the weight to be given their testimony, the jury was free to believe that Young did not authorize Flowers to sign his name to the check to pay her account balance with Aaron's Rentals. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7. Therefore, after reviewing all of the evidence in a neutral light, we conclude that the evidence is not so weak that it seems clearly wrong and manifestly unjust, and after considering the conflicting evidence, the finding is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d 404, 414-15. We overrule Flowers's second point of error.
IV. Conclusion
Finding no error, we affirm the trial court's judgment. NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion on Remand delivered
and filed this 10th day of January, 2008.
1.
In relevant part, Charge 3 of the indictment read as follows:
[D]efendant . . . on or about January 12, 2004, in, KLEBERG County, Texas, did then and there, with intent to defraud or harm another, make a writing so it purported to be the act of Luther Young, III, who did not authorize the act, and said writing was a check of the tenor following: #10530 payable to Aaron's Rental for $253.08 on 1/12/04, . . .
Charge 4 identified the elements identified in Charge 3 and added that Flowers passed "to Aaron's Rental a forged writing, knowing such writing to be forged."
2. Flowers told Young she was expecting a check from her insurance company which she would use to repay him. At the time of trial, Flowers had not repaid the loan.
3. Flowers also generally contends that the evidence is legally insufficient because the State failed to prove that this check was signed and passed in Kleberg County, Texas, as alleged in the indictment. However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1(h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (en banc).
NUMBER 13-05-004-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JULIE ANNE FLOWERS A/K/A
JULIE ANNE RICHARDSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas
MEMORANDUM OPINION ON REMAND
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant, Julie Anne Flowers a/k/a Julie Anne Richardson, was charged with twenty-two counts of forgery, a state jail felony. See Tex. Penal Code Ann. § 32.21(b), (d) (Vernon Supp. 2005). The jury returned a verdict of not guilty on counts 1, 2, and 5 through 22, and a verdict of guilty on counts 3 and 4, which charged forgery of a check in the amount of $253.08 made payable to Aaron's Rental. (1) See id. § 32.21(a)(1)(A)(i), (B). The trial court sentenced Flowers to one year confinement in a state jail facility, probated for a period of three years. It also assessed a $500.00 fine plus court costs and restitution in the amount of $253.08. By two points of error, Flowers challenges the legal and factual sufficiency of the evidence to support the verdict.
In our original opinion and judgment, we held that the evidence was legally sufficient but factually insufficient under the standards of review in effect at the time. Flowers v. State, No. 13-05-004-CR, 2006 Tex. App. LEXIS 4360 (Tex. App.--Corpus Christi May 18, 2006), rev'd and judgm't vacated, In re Flowers, PD-1298-06, 2007 Tex. Crim. App. LEXIS 41 (Tex. Crim. App. Jan. 10, 2007) (per curiam). On January 10, 2007, the Texas Court of Criminal Appeals vacated our opinion and judgment and remanded the case for reconsideration in light of its opinion in Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), which re-articulated the factual sufficiency standard of review. Id. at 415-17. Reconsidering the factual sufficiency point of error in light of Watson, we affirm the trial court's judgment.
I. Standard of Review
In a legal sufficiency review, we consider all of the evidence in the record in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The reviewing court considers all evidence admitted at trial, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). This standard applies regardless of whether the case is founded upon direct or circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.-Corpus Christi 1997, pet. ref'd).
When reviewing the factual sufficiency of the evidence we look at all evidence in a neutral light and will reverse only if (1) the evidence is so weak that the finding seems clearly wrong and manifestly unjust or (2) considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. This Court will not reverse the jury's verdict unless, we can say with some objective basis in the record, the great weight and preponderance of the evidence contradicts the verdict. Id. at 415.
We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.--Corpus Christi 2002, pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof." Malik, 953 S.W.2d at 240.
Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9.
II. Analysis
A. The Law
If a person forges a writing with intent to defraud or harm another, he commits an offense. Tex. Penal Code Ann. § 32.21(b) (Vernon Supp. 2005). Section 32.21 of the Texas Penal Code provides, in relevant part, that "forge" means "to make . . . or execute any writing so that it purports . . . to be the act of another who did not authorize that act." Id. § 32.21(a)(1)(A)(i). "Forge" also means to pass that writing. See id. § 32.21(a)(1)(B). Proof of intent to defraud is derivative of other elements; thus, in a forgery case, the culpable mental state of "intent to defraud or harm" can be inferred if the State proves that the defendant knew that the writing in question was forged. See Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (op. on reh'g) (en banc). Here, it is undisputed that Flowers executed the check at issue by signing Young's name to it and passing it to Aaron's Rental. The State's burden was therefore to prove that Flowers acted without Young's authorization. See id.
B. Testimony and Evidence Admitted at Trial
At trial, Flowers, who was hired as a bookkeeper but who also assumed other responsibilities at Young's bed and breakfast inn, admitted signing Young's name to check number 10530 dated January 12, 2004, that was made payable to Aaron's Rental for a payment on her big-screen television rental contract agreement. She also admitted passing the check to Aaron's Rental. Flowers testified, however, that she had Young's permission to sign and pass the check. Flowers testified that Young borrowed her television in order to honor a coupon being used by clients of the bed and breakfast inn. She explained that in mid-December/January, she and Young discussed reservations and the need for a big screen television. Flowers had a big screen television and was a payment behind on its rental. Flowers testified that "[Young] agreed to make the payment on . . . the big screen TV, and [Flowers] would make up the difference but [Young] would pay the entire amount, and that's exactly what happened . . . ." Flowers testified that they "had discussed it several times before." Additionally, Flowers's February 15, 2004 pay stub reflected a $120.36 deduction from her paycheck. This amount was approximately half of the $253.08 paid to Aaron's Rental.
Testifying at trial, Young agreed that he was aware Flowers was going to sign a check for the rental of a big screen television and that Flowers did so at his direction to ensure that his clients would have a television available to them during their stay at the bed and breakfast inn. Young testified that "[Flowers], at that point was more or less running what was going on" and he "trusted [his] business to [Flowers] to watch over these type of things." Young stated that he assumed Flowers had rented a television as they had done that in the past. He admitted that Flowers may have told him that they could use hers, "but in the confusion of everything, [he didn't] really remember." He may have known that they were going to use Flowers's television, but not that they were going to rent a television set for $250. Young testified that he thought the rental was for one night, not for a whole week. Flowers told him she would bring a big screen television, and Young assumed she was going to rent one for thirty or forty dollars a night. Young testified that he did not authorize Flowers to write a check for her account balance on the television.
Colby Urbanovsky, a former employee of the bed and breakfast inn, testified that he and another co-worker picked up a big screen television from Flowers's house and delivered it to the main house at the bed and breakfast inn. The television was there for about two weeks, even though the coupon used by the clients was for one weekend. Urbanovsky also testified that he believed Young knew the television had been brought from Flowers's house because Aaron's Rental did not deliver it.
Regarding the signing of business checks, Young testified that he would give Flowers permission to sign his name on certain checks, but then he would tell her not to sign any other checks. There is also testimony that on a number of occasions, after Flowers had signed his name on checks to vendors, Young authorized those acts as to regular vendors. Aaron's Rental, however, was not one of those vendors. Additionally, Young authorized Flowers to sign his name on a $3,100.00 check made payable to Flowers to be used to buy a new car. (2) Nonetheless, Young testified that he never gave Flowers carte blanche to sign checks. He testified that he told her, "Julie, do not - [y]ou know, if you're going to - [i]f you're in an emergency and you're going to sign one, you must call me and we must talk it over, and I must approve it on an individual basis." Flowers testified that Young did not tell her not to write anymore checks, although he would say not to sign any more of a specific type of check until they talked about it. Finally, Urbanovsky testified that, on occasion, he heard Young tell Flowers to sign a check because he was not there to do so. He also heard Young tell Flowers not to sign any more checks and if she had to, to call him. In addition, other employees testified that, some time after March 2004, they heard Young tell Flowers not to sign any more checks.
C. Legal Sufficiency
By her first point of error, Flowers contends that the evidence is legally insufficient to sustain her conviction for forgery. She asserts that no rational trier of fact could have found beyond a reasonable doubt (1) that claimant, Luther Young, III, had not authorized her to sign his name to a business check made payable to Aaron's Rental and (2) that Flowers passed a check with intent to defraud or harm Young. (3)
Considering all of the above evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Young did not authorize Flowers to sign his name and pass check number 10530. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95.
Young testified that although he authorized Flowers to sign his name on certain checks, he did not authorize a payment towards her Aaron's Rental account balance. Moreover, Aaron's Rental was not one of his regular vendors for which he would authorize her to sign checks. He assumed that Flowers, who performed numerous tasks in addition to the bookkeeping at the bed and breakfast inn, had rented a television as they had done in the past, for perhaps thirty or forty dollars a night. Although Flowers testified that Young agreed to make her payment to Aaron's Rental, questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact, and the jury could have given more credibility and weight to Young's testimony. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7.
Concluding that the jury could have found Young did not authorize the check at issue in this case, the jury was entitled to infer that Flowers possessed the culpable mental state of "intent to defraud or harm." See Huntley, 4 S.W.3d at 814. Accordingly, we hold that the evidence was legally sufficient to support the jury's verdict as to counts three and four of the indictment. Flowers's first point of error is overruled.
D. Factual Sufficiency
In her second point of error, Flowers complains that the evidence is factually insufficient to sustain her conviction for forgery. More specifically, Flowers complains that the evidence is factually insufficient to establish the "not authorized" element of the offense. We disagree.
In our original opinion in this appeal, our factual sufficiency review was largely guided by the following standard articulated by the court of criminal appeals in Zuniga v. State:
When reviewing a challenge to the factual sufficiency of the evidence to support the jury's finding, we must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in its finding beyond a reasonable doubt. We may find the evidence to be factually insufficient in the following ways: (1) if the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt, then we must find the evidence insufficient; or (2) if, when we weigh the evidence supporting and contravening the finding, we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient.
Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004), overruled by Watson, 204 S.W.3d at 417. In Watson, the court of criminal appeals stated the following:
Any holding that a criminal appellate court can reverse and remand for a new trial even when the evidence "preponderates" in favor of a conviction is inconsistent with that historically required high level of skepticism.
. . . We therefore disavow such language in Zuniga and reiterate that it is not enough that the appellate court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. An appellate court judge cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. . . . We have always held that an appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.
Watson, 204 S.W.3d at 417. Therefore, we must now apply the standard articulated in Watson to Flowers's factual sufficiency challenge.
Flowers argues that there was evidence that (1) Young allowed Flowers to handle business regarding the bed and breakfast inn, (2) Young gave Flowers prior authorization to sign checks, including this check, (3) Young directed her to get a television to honor a coupon, (4) Flowers acquired a big screen television for the bed and breakfast inn, (5) Young was aware that Flowers's television was to be used and was, in fact, used for his clients' stay at the bed and breakfast inn, and (6) Young took a deduction from Flowers's paycheck which equaled approximately half of the monthly rental amount paid to Aaron's Rentals for the television.
Young testified that although he gave Flowers permission to sign his name on certain checks, he told her several times not to sign his name on any checks without his prior authorization. Young testified that he told Flowers, "If you're in an emergency and you're going to sign one [a check], you must call me and we must talk it over, and I must approve it on an individual basis." Moreover, when the State asked Young, "Did you ever authorize Julie Richardson [Flowers] to write a check for the [Aaron Rentals'] account balance for this T.V.?" Young answered, "Absolutely not." Kirk Scott, a former employee of the bed and breakfast inn, testified that he overheard Young tell Flowers he did not want her signing his name on any checks. Leticia G. Ramirez, an employee of Young, testified she heard Young "tell Julli [sic] not to sign any more checks." Ramirez reiterated during re-cross examination that she heard Young tell Flowers, "Do not sign any checks."
As the sole judge of the credibility of the witnesses and the weight to be given their testimony, the jury was free to believe that Young did not authorize Flowers to sign his name to the check to pay her account balance with Aaron's Rentals. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7. Therefore, after reviewing all of the evidence in a neutral light, we conclude that the evidence is not so weak that it seems clearly wrong and manifestly unjust, and after considering the conflicting evidence, the finding is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d 404, 414-15. We overrule Flowers's second point of error.
IV. Conclusion
Finding no error, we affirm the trial court's judgment. NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion on Remand delivered
and filed this 10th day of January, 2008.
1.
In relevant part, Charge 3 of the indictment read as follows:
[D]efendant . . . on or about January 12, 2004, in, KLEBERG County, Texas, did then and there, with intent to defraud or harm another, make a writing so it purported to be the act of Luther Young, III, who did not authorize the act, and said writing was a check of the tenor following: #10530 payable to Aaron's Rental for $253.08 on 1/12/04, . . .
Charge 4 identified the elements identified in Charge 3 and added that Flowers passed "to Aaron's Rental a forged writing, knowing such writing to be forged."
2. Flowers told Young she was expecting a check from her insurance company which she would use to repay him. At the time of trial, Flowers had not repaid the loan.
3. Flowers also generally contends that the evidence is legally insufficient because the State failed to prove that this check was signed and passed in Kleberg County, Texas, as alleged in the indictment. However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1(h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (en banc).
Saturday, November 17, 2007
Had this idiot read the transcript ~ he would have known there were 9 strikes available
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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).
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).
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