Khanjani v. State

Full title: JOHN NAMY KHANJANI, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Aug 21, 2007

No. 14-06-00690-CR (Tex. App. Aug. 21, 2007)

Opinion

No. 14-06-00690-CR

Opinion filed August 21, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 1056902.

Panel consists of Justices ANDERSON, FOWLER, and FROST.

MEMORANDUM OPINION

JOHN S. ANDERSON, Justice.

Appellant, John Namy Khanjani, was found guilty by a jury of aggravated assault. The trial court assessed punishment at fourteen years' confinement in the Texas Department of Criminal Justice, Institutional Division. In three issues, appellant argues he should be granted a new trial because the State failed to disclose allegedly exculpatory evidence, the State presented false testimony at trial, and appellant received ineffective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Complainant, Salem Tannous, was the owner and operator of Smoke Heaven, a business located on Hillcroft Street in Houston. Smoke Heaven sold smoking accessories, tobacco, and a variety of other products. The complainant's cousin, Raad, was an employee of Smoke Heaven. Appellant and his girlfriend, Laura Wyche, lived in Southwest Houston and visited Smoke Heaven on numerous occasions during the summer of 2005. Sometime during July of 2005, appellant and Wyche visited Smoke Heaven and Wyche inquired about getting a job there. Raad began flirting with Wyche and asked her for her telephone number. Wyche told appellant that Raad made her uncomfortable, and appellant became angry. Thereafter, Wyche and appellant had an argument in front of Smoke Haven. The complainant intervened and threatened to call the police. At approximately 11:50 p.m. on August 7, 2005, appellant entered Smoke Heaven carrying a pistol and wearing a mask. Appellant ran to the back of the store and confronted the complainant. Appellant grabbed the complainant and stated, "You guys, motherf___, you f___ing with my girlfriend." The two men struggled and appellant shot the complainant three times. When appellant attempted to flee, the complainant chased appellant and tackled him inside the store. Surveillance video from Smoke Heaven, which was admitted into evidence at trial, shows that the complainant removed, or partially removed, appellant's mask during the struggle. Appellant was indicted for aggravated robbery and pleaded "not guilty." The jury found appellant guilty of the lesser offense of aggravated assault, and the trial court sentenced appellant to fourteen years' confinement. Appellant filed a motion for new trial, which was denied. This appeal followed.

DISCUSSION

I. Standard of Review

All of the issues raised in this appeal were asserted by appellant in his motion for new trial. We review a trial court's denial of a motion for new trial under an abuse-of-discretion standard. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006). A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id.

II. The State Did Not Present False Testimony At Trial

In his second issue, appellant argues the State violated his right to due process by presenting false testimony at trial. Appellant contends the State presented Wyche's false testimony that she was at work at the time of the offense and could not have been with appellant. The State argues, and we agree, that appellant has failed to satisfy his burden of establishing that Wyche's testimony was false. The knowing use of false testimony by the State requires reversal when there is a reasonable likelihood that the false testimony could have affected the judgment of the jury. Ramirez v. State, 96 S.W.3d 386, 396 (Tex.App.-Austin 2002, pet. ref'd). Initially, the defendant must show that the testimony at issue is sufficiently false and misleading to give the trier of fact a false impression. Id. at 394B95. Here, appellant contends Wyche's trial testimony regarding her whereabouts at the time of the offense is false because it conflicts with her grand jury testimony and additional evidence introduced at the hearing on appellant's motion for new trial. Before the grand jury, Wyche testified she typically worked on Sunday nights, but was uncertain whether she worked on Sunday August 7, 2005, the night of the offense. Regarding her whereabouts on the night of the offense, Wyche testified, "I don't know. Most likely I was at work B I mean B I can find out for sure, you know, and I have to talk to my boss though." Wyche testified she worked at Great Caruso, and sometimes appellant came to her place of work and watched the show. When asked if appellant was at Great Caruso on the night of the offense, Wyche testified, "I don't know if he was B I mean, it B I mean, it's a possibility." At appellant's trial, Wyche gave the following testimony regarding her whereabouts at the time of the offense:

[State's counsel]: On that night that the robbery took place, on August 7th, were you with the defendant, John Khanjani?

[Wyche]: No, sir.

[State's counsel]: So, you cannot be an alibi witness for him; you do not know where he was, right?

[Wyche]: Correct.

[State's counsel]: Were you typically with him on most nights during that period?

[Wyche]: Um, well, yeah. Yes, I guess you could say that, because I worked late.

[State's counsel]: Where were you working at that time?

[Wyche]: Great Caruso.

[State's counsel]: Isn't it fair to say also that a lot of these things are cloudy for you because it was an uncomfortable period in your life?

[Wyche]: Yes, sir.

At the hearing on his motion for new trial, appellant introduced into evidence Wyche's timecard from Great Caruso. The timecard indicates that Wyche worked from 4:41 p.m. to 8:51 p.m. on August 7, 2005. Based on the evidence described above, appellant claims the State presented Wyche's "false testimony that appellant could not have been with her at the time of the offense because she was at work at the Great Caruso." The record does not support appellant's contention. First, Wyche did not explicitly testify at trial that she was working on August 7 at the time the offense occurred. Taken in context, Wyche's trial testimony is ambiguous and could be interpreted as meaning (1) she was employed by Great Caruso on the date of the offense, (2) she was employed by Great Caruso "during that period," or (3) she was physically present at work on the date of the offense. Moreover, Wyche's grand jury testimony regarding her whereabouts on the night of the offense does not necessarily conflict with her testimony at trial. Wyche testified before the grand jury that she did not recall whether she was working on the night of the offense, and it was "a possibility" that appellant was at the Great Caruso that evening. In support of his argument, appellant cites Yates v. State, 171 S.W.3d 215 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). In Yates, an expert witness gave false testimony regarding the existence of a television show having a plot similar to the acts of a criminal defendant. Id. at 221. After the jury returned a guilty verdict, the expert witness acknowledged that his testimony was factually incorrect, and the parties stipulated that no such television show was ever produced. Id. at 219B20. Unlike the defendant in Yates, appellant has failed to establish that the State presented false testimony at trial. See id; see also Ramirez, 96 S.W.3d at 395 (finding alleged victim falsely testified she was not looking for money and had not entered into a contract "to get money" where evidence showed the alleged victim had a written contract with an attorney to bring a civil lawsuit seeking damages). Accordingly, appellant's second issue is overruled. III. The State Did Not Suppress Exculpatory Evidence In his first issue, appellant argues the State's failure to disclose the grand jury testimony of Laura Wyche denied appellant due process of law and a fair trial. In his motion for new trial and appellate brief, appellant claims Wyche's grand jury testimony is exculpatory because it is inconsistent with her testimony at trial and, therefore, could have been used for impeachment. Prior to trial, appellant's trial counsel requested that the prosecutor permit him to read Wyche's grand jury testimony, and the prosecutor refused. Citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), appellant argues the State's failure to disclose Wyche's grand jury testimony violated his right to due process. In Brady v. Maryland, the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused violates due process, irrespective of the good faith or bad faith of the prosecution. Id., 373 U.S. at 87, 83 S.Ct. at 1196B97. To demonstrate reversible error for violation of Brady rights, a defendant must show (1) the State failed to disclose evidence, regardless of the prosecutor's good faith or bad faith; (2) the withheld evidence is favorable to the defendant; and (3) the withheld evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Strickler v. Greene, 527 U.S. 263, 281B82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999); Harm v. State, 183 S.W.3d 403, 406 ((Tex.Crim.App. 2006). In this case, appellant has failed to satisfy the third prong of the Brady test. Appellant argues that Wyche's grand jury testimony is material because it could have been used to impeach her trial testimony that appellant looked like the assailant depicted in the surveillance video. Wyche testified at trial that the individual depicted in State's Exhibit 21, a still photograph extracted from the surveillance video, "looks like" appellant. In her grand jury testimony, Wyche testified that she watched the surveillance video once and the video was blurry. When asked if the individual depicted in the video resembled appellant, Wyche testified, "I feel bad saying yes or no because the video was so blurry. I didn't get a good look." Wyche also testified to the grand jury that the individual depicted in the surveillance video appeared to be a different height and weight than appellant and had a different hair line. In her trial testimony, Wyche acknowledged that she had given conflicting statements and would like to change portions of her grand jury testimony. Our review of the record shows that Wyche never positively identified appellant as the assailant. Rather, Wyche testified that the individual shown in State's Exhibit 21 "looks like" appellant. The jury could have made the same determination based on their comparison of the photographic evidence to the appellant at trial. The surveillance video from Smoke Heaven was admitted into evidence and published to the jury, and appellant was present in the courtroom during trial. Further, the complainant testified at trial and positively identified appellant as the man who assaulted him. Appellant further argues that Wyche's grand jury testimony is material under the third prong of Brady because of inconsistencies between her grand jury testimony and trial testimony regarding a prior altercation she had with appellant in front of Smoke Haven, and whether appellant purchased a body cleanser (detoxification) product from Smoke Heaven. Although the grand jury testimony of Wyche may have aided appellant in impeaching Wyche's testimony at trial, the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. Hampton v. State, 86 S.W.3d 603, 612B13 (Tex.Crim.App. 2002). To establish materiality under the third prong of Brady, appellant bears the burden of showing that, in light of all the evidence, it is reasonably probable that the outcome of the trial would have been different had the prosecutor made a timely disclosure. Id. Based on our review of Wyche's grand jury testimony and testimony at trial, we hold appellant has failed to meet his burden under the third prong of Brady. Accordingly, appellant's first issue is overruled.

IV. Appellant Did Not Receive Ineffective Assistance of Counsel

In his third issue, appellant contends he received ineffective assistance of counsel at trial. In reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel's representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). There is a strong presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813. When the record is silent as to the reasons for counsel's conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court. Stults, 23 S.W.3d at 208. Absent specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant makes two arguments in support of his claim of ineffective assistance of counsel. First, appellant argues his trial counsel rendered ineffective assistance by failing to impeach Wyche with her grand jury testimony and timecard from work. Appellant claims his trial counsel should have obtained this evidence and used it to impeach Wyche's testimony at trial regarding her identification of appellant as the individual depicted in the surveillance video, Wyche's whereabouts at the time of the offense, a prior altercation between Wyche and appellant, and appellant's purchase of a body cleanser (detoxification) product from Smoke Heaven. In an affidavit attached to appellant's motion for new trial, appellant's trial counsel testified that had the State disclosed Wyche's grand jury testimony, he would have used it to impeach Wyche's testimony at trial. In his second argument, appellant claims his trial counsel rendered ineffective assistance by failing to object to two questions asked by the prosecutor to Detective Colleen Guidry, a witness for the State. Guidry testified she placed appellant's driver's license photograph in a photospread and showed it to the complainant, who immediately identified appellant as the assailant. The prosecutor asked, "Did you believe him?" Guidry responded, "Yes." The prosecutor then asked Guidry to explain the facts and circumstances corroborating the complainant's identification of appellant. Guidry responded that appellant was linked to the crime by evidence that he and Wyche had previously been in Smoke Heaven, Wyche complained to appellant about a problem with the complainant's cousin, and appellant had thick eyebrows and a receding hair line like the individual depicted in the surveillance video. Appellant's trial counsel did not object. Appellant's second claim of ineffective assistance was not developed in his motion for new trial. Assuming without deciding that appellant's trial counsel's performance was deficient, appellant has failed to show a reasonable probability that, but for his counsel's deficient performance, the result of the trial would have been different. See Mallett, 65 S.W.3d at 62B63. As discussed in our analysis of appellant's first and second issues, the impeachment value of Wyche's grand jury testimony, if any, is not substantial. The complainant testified he had seen appellant in Smoke Heaven on prior occasions and was certain that appellant was the individual who assaulted him. The surveillance video and still photographs from Smoke Heaven corroborated the complainant's testimony and provided independent evidence from which the jury could identify appellant as the assailant. The jury heard testimony that appellant was aware that the complainant's cousin had recently flirted with Wyche and asked her for her telephone number. The jury also heard the complainant's testimony that during the assault, the assailant stated, "You guys . . . you f — ing with my girlfriend." Based on our review of the record as a whole, we find that appellant has failed to show a reasonable probability that but for the alleged deficiencies of his trial counsel, the result of the trial would have been different. Appellant's third issue is overruled.

CONCLUSION

Having overruled each of appellant's issues, we affirm the judgment of the trial court.