Nos. 14-07-00684-CR, 14-07-00685-CR.
Opinion filed October 30, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 180th District Court Harris County, Texas, Trial Court Cause No. 1074371 1074372.
Panel consists of Justices ANDERSON, FROST, and Senior Justice HUDSON.
Senior Justice J. Harvey Hudson sitting by assignment.
JOHN S. ANDERSON, Justice.
Appellant Cedric Knox was found guilty by a jury of intentionally or knowingly causing bodily injury to a child and of assault of a family member. See Tex. Penal Code Ann. §§ 22.01(a)(1), (b)(2), 22.04(a)(3) (Vernon Supp. 2008). The jury sentenced appellant to two concurrent five-year terms in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant contends: (1) the evidence is factually insufficient to support his conviction for assault of a family member; (2) he was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments; and (3) the trial court erred when it failed to appoint counsel during the time to file a motion for new trial. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 24, 2006, Officer G. Patton received a call from dispatch to an apartment complex in Houston, Texas. He arrived within minutes to find Kenyate Polk, appellant's girlfriend, and the couple's five-year-old son, Sharkene, walking quickly toward the entrance gate. According to Officer Patton's testimony, appellant was walking about two or three feet behind them. Officer Patton testified that appellant appeared "kind of aggressive," angry, sweaty, and smelled of alcohol. He stated that Kenyate Polk had a bruise on her right eye, she was crying, and her clothes were dirty and disheveled. He asked her what happened and, according to his testimony, she stated, "My boyfriend beat me up" and pointed to appellant. When questioned further by Officer Patton, Polk told him appellant hit her with a closed fist. Officer Patton then placed appellant in the patrol car and continued to speak with Polk. He observed Sharkene had dried blood on his bottom lip; the State introduced photographs of the boy taken by Houston Police Department officers at the scene. According to Officer Patton, Polk stated that she saw appellant hit Sharkene in the mouth with a closed fist. No photographs were taken of Polk's injuries. Appellant testified that he and Polk argued about his inability to drive the family somewhere after consuming alcohol. He denied striking Polk and stated that Sharkene's injuries were the result of horseplay. During the guilt-innocence phase, appellant stipulated to his prior conviction for assault against Polk. The State questioned him further about the details of this conviction, and about his prior conviction for assaulting another woman. The trial court signed the judgment for each cause number on June 20, 2007. On the preprinted forms for the notices of appeal, appellant's trial counsel checked the box that he moved to withdraw and dated the document June 28, 2007. Appellant signed the documents before a notary on July 6, 2007. The notices were not filed with the district court until July 16, 2007. In the documents, appellant stated he was indigent and requested the trial court appoint appellate counsel immediately, order a free record for him, and set bail. Also on July 16, 2007, appellant filed two pro se documents for each cause number: a notice of appeal and a motion to obtain transcript records. The trial court set bail on August 15, 2007; the portion of the order setting forth the ruling on trial counsel's motion to withdraw is blank. In a separate order on the same date, the trial court found appellant indigent and appointed appellate counsel. Appellant filed a Motion for Abatement and Remand for Out-of-Time Motion for New Trial with this court on January 30, 2008, contending trial counsel never advised him of the thirty-day deadline for filing a motion for new trial and appellate counsel was not appointed until after the deadline had passed. The motion was denied on February 14, 2008. II. DISCUSSION
A. Factual Sufficiency
In his first issue, appellant contends the evidence is factually insufficient to support his conviction for assault of a family member. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (Vernon Supp. 2008). Specifically, appellant argues the evidence is weak and includes only "unsubstantiated circumstantial and hearsay evidence." Before we address factual sufficiency, we note appellant has failed to bring a challenge to the legal sufficiency of the evidence. Thus, he has conceded the evidence is legally sufficient to permit a rational jury to find the essential elements of the offense. See Clewis v. State, 922 S.W.2d 126, 134-36 (Tex.Crim.App. 2006) (holding factual-sufficiency review begins with presumption the evidence supporting the jury's verdict is legally sufficient). If the evidence were not legally sufficient, this court would not reach a factual-sufficiency point of error, having acquitted the defendant. See Watson v. State, 204 S.W.3d 404, 415-16 (Tex.Crim.App. 2006). Under a factual-sufficiency review, a verdict will not be set aside unless (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. See Grotti v. State, ___ S.W.3d ___, 2008 WL 2512832, at *7 (Tex.Crim.App. June 25, 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). Under the first prong, an appellate court cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because it would have voted to acquit had it been on the jury. Watson, 204 S.W.3d at 417. Instead, a reviewing court's authority to disagree with the jury's credibility determination is appropriate only when the record clearly indicates it is necessary to correct a manifest injustice. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Similarly, under the second prong, a reviewing court cannot declare that conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Watson, 204 S.W.3d at 417. Before finding that evidence is insufficient to support the verdict under the second prong, a reviewing court must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence, albeit legally sufficient, contradicts the jury's verdict. Id. Unlike a legal-sufficiency review under which the evidence is viewed in the light most favorable to the prosecution, a factual-sufficiency review requires the court to view all of the evidence in a neutral light. See id. at 415. With these principles in mind, we turn to the record before us. A person commits assault of a family member when the person intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse. Tex. Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2008). Appellant argues the only evidence in support of his conviction is Officer Patton's testimony that he saw a bruise on Kenyate Polk's eye and that she told him her "boyfriend beat her up," which appellant denied during his testimony. Appellant also notes that Houston Police Department officers did not take photos of Polk, while they did take photos of Sharkene Knox's injuries. He contends portions of Officer Patton's testimony constituted hearsay and the alleged hearsay evidence, coupled with unsubstantiated circumstantial evidence, is not enough to sustain his conviction. A reviewing court considers both properly and improperly admitted evidence in its sufficiency review and gives the evidence whatever weight and probative value it could rationally convey to a jury. Moff v. State, 131 S.W.3d 485, 489-90 (Tex.Crim.App. 2004); Rivera-Reyes v. State, 252 S.W.3d 781, 785 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In addition, evidence can be both legally and factually sufficient to support a conviction even if it is entirely circumstantial. See King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000). The standard of review for cases based on circumstantial evidence is the same as the standard for reviewing cases with direct evidence. Id. The record reflects that Officer Patton testified to seeing Kenyate Polk walking fast with her five-year-old son toward the entrance gate of an apartment complex. Officer Patton stated that Polk had a bruise on her right eye, was crying, and her clothes were dirty and disheveled. He asked her what happened and she stated that her boyfriend beat her up and pointed to appellant. When questioned further by Officer Patton, she stated appellant hit her with a closed fist. Appellant testified that he and Polk argued about his inability to drive the family somewhere after consuming alcohol. Appellant stated that he followed Polk out of the apartment to learn why she was leaving and figured it was because Polk did not want the kids to see him "messed up." He then denied striking Polk. Before direct examination, appellant stipulated to a 2004 conviction for assaulting Polk. On cross-examination, the State questioned appellant about the details of this conviction and of another conviction for assaulting another woman. When questioned as to why Polk did not appear to testify despite a subpoena by the State, appellant stated Polk was not scared of him and he did not know why she had not shown up to testify. Appellant later stated that he loved Polk and again denied intentionally hurting her. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). We afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility. Id. The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony. Id. The jury could have chosen to believe all, some, or none of the testimony presented. Id. at 707. Here, the jury could have believed Officer Patton's testimony and chosen to disbelieve appellant's testimony. Accordingly, appellant's first issue is overruled. B. Ineffective Assistance of Counsel Claim
In his second issue, appellant contends he received ineffective assistance of counsel because his trial counsel failed to (1) object to testimony from Officer Patton about what Kenyate Polk said at the scene; (2) object to the admission of details about prior convictions, Officer Patton's testimony that appellant was intoxicated, and a "no contact" order; (3) object to facts outside the record raised in the State's closing argument; (4) conduct meaningful voir dire and strike an allegedly biased juror on the panel; (5) make any meaningful jury argument; and (6) call witnesses during the guilt-innocence or punishment phases of 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, 104 S. Ct. 2052, 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. An accused is entitled to reasonably effective assistance of counsel. King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983). 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. See Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). To overcome the presumption of reasonable professional assistance, "[a]ny 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 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). When the record is silent as to the reasons for counsel's conduct, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Absent specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, this kind of record is best developed in a hearing on an application for writ of habeas corpus or a motion for new trial. Perez v. State, 56 S.W.3d 727, 731 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998)). However, when no reasonable trial strategy could justify trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel's subjective reasons for acting as he did. Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005). If a criminal defendant can prove trial counsel's performance was deficient, he still must affirmatively prove he was prejudiced by counsel's actions. Thompson, 9 S.W.3d at 812. This requires the defendant to demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett, 65 S.W.3d at 63. Here, appellant did not file a motion for new trial and the record does not contain evidence of trial counsel's reasons or strategy regarding the challenged actions. This court will not speculate as to why trial counsel acted as he did. See Bone, 77 S.W.3d at 835; Rivera-Reyes v. State, 252 S.W.3d 781, 790 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Absent evidence in the record, appellant cannot overcome the presumption that counsel's actions were reasonable and professional. See Bone, 77 S.W.3d at 833. Therefore, we overrule appellant's second issue. C. Alleged Deprivation of Counsel During Period for Filing Motion for New Trial
In his third issue, appellant contends the trial court erred when it failed to appoint counsel during the time for filing a motion for new trial and the alleged absence of counsel prejudiced him. Specifically, appellant argues his counsel moved to withdraw eight days after trial and did not advise him regarding a motion for new trial. Appellant requests this court abate the case to allow him time to file an out-of-time motion for new trial. A motion for new trial must be filed no later than thirty days after the trial court "imposes or suspends sentence in open court." Tex. R. App. P. 21.4(a). This 30-day period in which to file a motion for new trial is a critical stage of a criminal proceeding and a defendant has a constitutional right to counsel during that period. Cooks v. State, 240 S.W.3d 906, 908 (Tex.Crim.App. 2007). To prevail on a claim of deprivation of counsel, appellant must affirmatively show that he was not represented by counsel during that period. See Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App. 1998). There is a rebuttable presumption that a defendant's trial counsel continued to adequately represent the defendant during this critical stage. Cooks, 240 S.W.3d at 911. If a defendant rebuts this presumption with evidence that he was deprived of adequate counsel during this stage, this deprivation of counsel is subject to a harm analysis. Id. The trial court signed the judgment for each cause number on June 20, 2007. On the preprinted forms for the notices of appeal, appellant's trial counsel checked the box that he moved to withdraw and dated the document June 28, 2007. Appellant signed the documents before a notary on July 6, 2007. The notices were not filed with the district court until July 16, 2007. As a result, the trial court was not on notice of trial counsel's intent to withdraw until four days before the end of the 30-day time period for filing a motion for new trial. The record does not reflect the trial court ruled on the motion to withdraw. The trial court set bail on August 15, 2007; the portion of the order setting forth the ruling on trial counsel's motion to withdraw is blank. In a separate document on the same date, appellant petitioned the court to appoint appellate counsel and requested a free record. The trial court, finding appellant indigent, granted both requests the same day. The appellant was represented by retained counsel at trial. Trial counsel, whether retained or appointed, "has the duty, obligation, and responsibility to consult with and fully advise his client concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, [and] the necessity of giving notice of appeal and taking other steps to pursue an appeal. . . ." Ex parte Axel, 757 S.W.2d 369, 374 (Tex.Crim.App. 1988); see Oldham, 977 S.W.2d at 362 (quoting Ex parte Axel when appellant claimed retained counsel abandoned her during time to file motion for new trial). A rebuttable presumption exists that the attorney discussed the merits of the motion for new trial with the appellant, and the appellant considered and rejected it. Oldham, 977 S.W.2d at 363. Appellant's statement that he was not represented since June 28, 2007 is not enough to rebut the presumption of effective assistance. See Smith v. State, 17 S.W.3d 660, 662-63 (Tex.Crim.App. 2000) (holding fact that appellant filed pro se notice of appeal and indigency, letter of assignment from trial court to appellate court stated attorney of record on appeal was "to be determined," and appellant appeared without counsel when signing a pauper's oath and requesting new counsel was not enough to rebut presumption); Oldham, 977 S.W.2d at 362-63 (holding fact that appellant filed pro se notice of appeal and indigency and letter of assignment from trial court to appellate court stated attorney of record on appeal was "to be determined" was not enough to rebut presumption). Appellant must show that counsel did not confer with him regarding the merits of filing a motion for new trial. Nguyen v. State, 222 S.W.3d 537, 540 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd). Appellant has not made such a showing here. Although appellant's trial counsel signed a motion to withdraw on June 28, 2007, it was not filed with the trial court until July 16, 2007, and was not acted upon by the trial court. Therefore, trial counsel was still the attorney of record through the time for filing a motion for new trial. There is no evidence in the record that trial counsel thought his duties were completed at the end of trial or that he abandoned appellant. See Oldham, 977 S.W.2d at 362-63 (finding no evidence in record to show trial counsel thought his duties were completed at the end of trial and he abandoned appellant even though Oldham filed pro se notice of appeal and notation on letter of assignment stated attorney of record on appeal was "to be determined"). In addition, on the same date the preprinted notices of appeal containing trial counsel's motion to withdraw were filed with the district court, appellant filed two pro se documents in each cause number: a notice of appeal and a motion to obtain transcript records. Filing a pro se notice of appeal is an indication that appellant was made aware of at least some of his appellate rights. Id. at 363. There is nothing in the record to suggest that appellant was not counseled by his attorney regarding the merits of a motion for new trial. Smith, 17 S.W.3d at 663; Oldham, 977 S.W.2d at 363. Appellant has not overcome the presumption that he was adequately represented by counsel during the time for filing a motion for new trial. Therefore, appellant's third issue is overruled. III. CONCLUSION
Having overruled appellant's three issues on appeal, we affirm the judgments of the trial court.