Opinion
No. 05-14-01244-CR
05-25-2016
JESSICA JACOLE HOLLOWAY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1341299-T
MEMORANDUM OPINION
Before Justices Bridges, Evans, and O'Neill
Opinion by Justice O'Neill
The Honorable Michael J. O'Neill, Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment. --------
Jessica Jacole Holloway was charged with the offense of aggravated assault with a deadly weapon. Appellant pleaded not guilty, and the jury found her guilty as charged. The jury assessed punishment at five years' confinement. The trial court suspended appellant's sentence and placed her on community supervision for five years. On appeal, appellant contends: (1) the evidence was insufficient to prove the box cutter was a deadly weapon; (2) the trial court erred in allowing prejudicial and impermissible jury argument; and (3) she was deprived of effective assistance of counsel. Because all dispositive issues are well-settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court's judgment.
I. BACKGROUND
At trial, Mary Edwards, a dispatcher for the Mesquite Police Department, testified that she received a 911 call reporting a domestic disturbance at 2812 Miller Place in Mesquite, Texas. Ryan Nelson, a patrol officer with the Mesquite Police Department, testified that he was dispatched to 2812 Miller Place. The dispatcher told Officer Nelson there was a disturbance between two people that possibly involved a knife. The dispatcher also told Nelson that one of the people involved in the disturbance might be in a blue Jeep Cherokee. Shortly after turning onto Miller Place, Officer Nelson saw a dark colored Jeep Cherokee pull away from the target address for the 911 call. Officer Nelson testified that he followed the Jeep as it made a right turn at the corner, and then another right turn into an alley. Officer Nelson activated his squad car lights but the Jeep did not stop. Instead, the Jeep continued down the alley, pulled into an open garage, and then came to a stop. Officer Nelson described this as "abnormal behavior" and evasive. Officer Nelson got out of his squad car and commanded appellant to show her hands. Appellant got out of the Jeep and was handcuffed.
Officer Nelson questioned appellant in front of his squad car with the in-car camera activated. When Officer Nelson asked appellant why her boyfriend had called 911, appellant told him that she had gone to a water park with her fiancé, Michael Keeton, and when they got home, they got into an argument about Keeton looking at other women. Officer Nelson asked appellant if there was a box cutter inside the vehicle. Appellant responded, "it might be," and she told Officer Nelson he could search the vehicle. Officer Nelson searched the Jeep and found a box cutter in the back seat of the vehicle wrapped in a rag or towel. The State offered the box cutter into evidence at trial. The State also played the video from the in-car camera of Officer Nelson's squad car.
At trial, the State played the 911 call to the jury. The jury heard a man claiming to be Michael Keeton tell the 911 dispatcher that his girlfriend was crazy and had cut him with a box cutter. Officer Nelson testified that when he spoke to Michael Keeton that evening, he saw cuts on Keeton's arms and observed that Keeton was bleeding. The State offered into evidence photographs of Keeton showing cuts on his arms. Keeton did not testify at trial.
The jury found appellant guilty of aggravated assault with a deadly weapon. The jury assessed punishment at five years' confinement. The trial court suspended appellant's sentence and placed appellant on community supervision for five years. This appeal followed.
II. DISCUSSION
A. DEADLY WEAPON
In her first issue on appeal, appellant contends the evidence is insufficient to show that the weapon used in the aggravated assault was a deadly weapon. We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624 (Tex. Crim. App. 2014). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Acosta, 429 S.W.3d at 624-25. We must defer to the jury's credibility and weight determinations because the jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
A person commits aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another or uses or exhibits a deadly weapon during the commission of the assault. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). A "deadly weapon" is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17)(B) (West Supp. 2015). Although a box cutter is not a deadly weapon per se, such a knife can be found to be a deadly weapon based on the nature of its use or intended use. See Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008); Robinson v. State, No. 05-01-00255-CR, 2002 WL 1380412, *2 (Tex. App.—Dallas June 27, 2002, pet. ref'd). In determining whether a knife is a deadly weapon, we may consider: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; and (4) testimony of the knife's life-threatening capabilities. See Thomas v. State, 821 S.W.2d 616, 619-20 (Tex. Crim. App. 1991).
Here, Officer Nelson testified that he considered the box cutter to be a deadly weapon. The jury saw the police in-car video of Officer Nelson searching appellant's Jeep and finding the box cutter in the back seat. The State introduced the box cutter into evidence. The jury was able to view the box cutter and make determinations as to its size and shape. And the jury saw photographs of the bleeding cut on Keeton's arm. In deciding if a weapon is deadly, the jury is free to consider all of the facts of the case, including the nature, location, and severity of the wounds inflicted or words spoken by the appellant. See Tisdale v. State, 686 S.W.2d 110, 111 (Tex. App. Crim. 1984). Based on this record, we conclude the evidence is sufficient for a reasonable juror to conclude appellant used the box cutter in a manner capable of causing death or serious bodily injury and the box cutter, as used, was a deadly weapon. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B); see also Winfrey, 393 S.W.3d at 768. We overrule appellant's first issue. B. JURY ARGUMENT
In her second issue, appellant contends the trial court erred in overruling her objection to the State's prejudicial and impermissible jury argument. Specifically, appellant complains that the State appeared to suggest that complainant did not testify at trial because he was afraid of appellant. We review a trial court's ruling on an objection to improper jury argument for abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). Proper jury argument generally falls within one of four areas: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to opposing counsel's argument, and (4) plea for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011). In examining challenges to jury argument, we consider the remark in the context in which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). When an argument exceeds the permissible bounds of these approved areas, it is reversible error only when an analysis of the record as a whole shows the argument is extreme or manifestly improper, is violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); see also Hawkins v. State, 135 S.W.3d 72, 79 (Tex. Crim. App. 2004).
During the State's rebuttal to defense counsel's closing argument to the jury, the following exchange took place:
STATE: Whenever I stand up in front of you, I say I represent Dallas County and I represent the State of Texas. I don't represent Michael Keeton. I stand before you, and I represent what is right. I represent the charges that are brought here. And what you should want in your justice system is to say just because the victim doesn't care, just because the victim doesn't want to come, maybe the victim is afraid of the person that -The trial court overruled the objection. Appellant argues the State's explanation for the unavailability of the witness was not permissible and was prejudicial. Appellant contends the State's suggestion that the victim was afraid of appellant was not a reasonable deduction from the evidence. a summation of the evidence, an answer to argument of opposing counsel, or a plea for law enforcement.
DEFENSE COUNSEL: Your Honor, I will object to the argument of the State. That's outside the evidence. There's absolutely no evidence reflecting that the defendant - or the complainant is afraid of the defendant. I object to that as prejudicial to the jury.
In response, the State argues that a prosecutor may permissibly respond to one of defense counsel's pervasive defensive theories. The State contends that one of defense counsel's primary trial tactics was to question why the State would prosecute a case despite the complainant's refusal to testify. During trial, the only witness called by defense counsel was Jacqueline McCoy, a senior investigator for the Dallas County District Attorney's Office, who testified that as the investigator in this case, it was her job to locate the complainant and witnesses. McCoy described her unsuccessful attempts to contact Keeton. During defense counsel's closing argument, he questioned, "[w]hy isn't the complainant here?" Defense counsel suggested the jury could make a reasonable deduction from the evidence that complainant did not want to testify at trial because he did not want to tell a lie under oath. Defense counsel then argued appellant was being deprived of her right to confront her accuser. Finally, defense counsel told the jury they did not have any evidence against his client because complainant did not "have the guts, the integrity, the honor to come in this courtroom and tell you what happened."
Based on this record, we conclude the State's argument was an answer to rebut defense counsel's argument that the complainant was not present at trial because he did not want to lie under oath. The State's argument falls within one of the areas of proper jury argument. See Freeman, 340 S.W.3d at 727. The trial court did not err in overruling appellant's objection to the prosecutor's argument. We overrule appellant's second issue. C. INEFFECTIVE ASSISTANCE OF COUNSEL
In her third issue, appellant asserts she was deprived of effective assistance of counsel at trial due to multiple and cumulative errors made by her trial counsel. She maintains that trial counsel's representation prejudiced the defense and fell below an objective standard of reasonableness under prevailing professional norms. To prevail on a claim of ineffective assistance of counsel, an appellant must meet the two-pronged test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by Texas two years later in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92; Villa v. State, 417 S.W.3d 455, 462-63 (Tex. Crim. App. 2013). Appellant bears the burden of proving her claims by a preponderance of the evidence. Lopez, 343 S.W.3d at 142. It is not enough to merely show, through the benefit of hindsight, that trial counsel's actions were questionable. Id. at 142-43.
Review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Villa, 417 S.W.3d at 463; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). In order for an appellate court to find that counsel was ineffective, counsel's alleged deficiency must be affirmatively demonstrated in the record. Lopez, 343 S.W.3d at 142; Brennan v. State, 334 S.W.3d 64, 71 (Tex. App.—Dallas 2009, no pet.). The defendant must produce record evidence sufficient to overcome the presumption that, under the circumstances, the challenged action was sound trial strategy. Strickland, 466 U.S. at 689; Villa, 417 S.W.3d at 463.
Although appellant filed a motion for new trial, her motion did not raise the issue of ineffective assistance of trial counsel. There was no hearing on the motion for new trial, and it was overruled by operation of law. Consequently, there is no record of a hearing at which appellant's trial counsel was afforded the opportunity to explain his actions or trial strategy. When no evidentiary record is developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). "Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance." Brennan, 334 S.W.3d at 71.
Appellant argues that errors made by her trial counsel had the cumulative effect of fatally infecting the trial to such an extent that the trial was fundamentally unfair. The doctrine of cumulative error provides that the cumulative effect of several errors can, in the aggregate, constitute reversible error, even though no single instance of error would. See United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004); Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010). Non-errors, however, do not produce harm in their cumulative effect. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); see also Turner v. State, 87 S.W.3d 111, 118 (Tex. Crim. App. 2002).
Appellant contends trial counsel was ineffective during the plea negotiation and pretrial proceedings by not putting her in a position to make an informed decision whether to accept the plea bargain offer or to proceed to trial. However, defense counsel made a record outlining the advice he provided to appellant regarding her options for accepting the plea offer or proceeding to trial. Appellant also complains that after defense counsel told her he felt comfortable going to trial, he did not have a theory of defense or call any witnesses other than the State's investigator. However, "failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony." Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). The record does not reflect that appellant made such a showing.
Appellant contends trial counsel's performance fell below the objective standard of reasonableness because he did not file a motion to suppress the police car video and the box cutter. Appellant argues that because she was in custody, her statement giving consent to search the vehicle, her statements about the underlying offense, and the box cutter should not have been admitted. There is nothing in the record to indicate why trial counsel did not file a motion to suppress. Nevertheless, the State responds that the reasonableness of defense counsel's decision not to file a motion to suppress is supported by the record since appellant was temporarily detained—not in custody—when she made the statements in question.
Appellant also contends trial counsel failed to object to improper jury argument by the prosecutor. First, she complains that trial counsel should have objected when the prosecutor stated "I represent what is right." Appellant contends the prosecutor impugned the defense attorney's character by bolstering her own, and struck at the defendant over the shoulders of defense counsel, causing the jury to infer that defense counsel represents what is wrong. Second, appellant complains that trial counsel should have objected to the prosecutor's comment on her post-arrest silence. Appellant specifically complains about the following statement by the prosecutor:
STATE: That's not something that we have to prove is exactly what occurred prior to the offense taking place. You know it wasn't self-defense because she never once said that he attacked her. Never once did she claim that.Appellant argues that this statement was a comment by the prosecutor regarding appellant's failure to testify at trial. The State contends the prosecutor's argument does not clearly or directly refer to appellant's failure to testify but instead, refers to appellant's statements that were recorded in the police car video. The record does not reflect trial counsel's reason for not objecting to the prosecutor's argument.
Because appellant did not assert any of these allegations in the motion for new trial, the record contains no evidence as to any possible strategies employed by appellant's trial counsel regarding these claims. "We cannot speculate beyond the record provided and must presume the actions taken by trial counsel were part of a strategic plan for representing his client." Brennan, 334 S.W.3d at 74. Given the present record, appellant has not shown that trial counsel's performance fell below an objective standard of reasonableness. See Lopez, 343 S.W.3d at 143. Because appellant has failed to meet her burden on the first prong of Strickland, we need not consider the requirements of the second prong. We overrule appellant's third issue.
III. CONCLUSION
Having overruled all of appellant's issues, we affirm the trial court's judgment.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE, ASSIGNED Do Not Publish
TEX. R. APP. P. 47 141244F.U05
JUDGMENT
On Appeal from the 283rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1341299-T.
Opinion delivered by Justice O'Neill. Justices Bridges and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 25th day of May, 2016.