Opinion
No. 10-01-239-CR
Opinion delivered and filed August 4, 2003. DO NOT PUBLISH.
From the 155th District Court, Waller County, Texas, Trial Court # 00-10-10,447. AFFIRMED
Mike L. Glover, Attorney at Law, Brookshire, Texas, for Appellant. Debra S. Mergel, Waller County Asst. District Attorney, Hempstead, Texas, for Appellee.
Before Chief Justice Davis, Justice Gray, and Senior Justice Hill (Sitting by Assignment).
MEMORANDUM OPINION
Lee Tate, Jr., appeals his conviction by the trial court, following his plea of not guilty, of the offense of aggravated robbery. Subsequent to Tate's plea of not true to an enhancement paragraph, the trial court, finding the enhancement allegation true, assessed Tate's punishment at 75 years in the Texas Department of Criminal Justice, Institutional Division. Tate retained appellate counsel after his appointed counsel filed an Anders brief. He contends in three points that the evidence is factually insufficient to support his conviction, that he was afforded ineffective assistance of counsel at trial, and that the trial court erred in allowing the State to amend the indictment without notice to him. We affirm. Tate urges in point one that the evidence is factually insufficient to sustain his conviction. In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We must view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the [factfinder's] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). We must also remain cognizant of the factfinder's role and unique position — one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The factfinder determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). It is the factfinder that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). James Griffin, the complainant, testified that early in the morning of January 8, 2000, he went to an apartment complex with a friend. He indicated that he stayed in the car while his friend went to talk to his girlfriend, but got out of the car after about fifteen minutes. He said he was accosted by two men who wanted him to give them $5, but he did not have change. He related that he started to go with the men to a store to get change, but declined to go when he did not feel safe. He identified Tate, whom he indicated that he had seen on prior occasions, as the man who tried to pull his wallet out of his jacket. Griffin testified that after he told the men he did not have the money, they began hitting him on the top of the head. He said that when he knocked on a window seeking help, one of the two men hit him with something on the side of the head. He indicated that when he was hit on the side of the head, the next thing he knew was that his arm went through the window and blood went everywhere. He acknowledged that he did not know who pushed him through the window, but did know it was one of the two men. Griffin testified that his artery was cut and he was sitting in a pool of blood when the police arrived. He indicated that he was supposed to bleed to death within five minutes, and that it took fifty-five minutes to stop the bleeding. He stated that he was left with no feeling between the top of his forearm and the bottom of his wrist. Griffin said he picked Tate out of one of two books police showed him. He stated that the book had about 300 pictures in it. After he identified Tate, Griffin testified that Tate no longer had the same appearance at trial as he had in January 2000 because his hair was now longer. He identified a picture as fairly and accurately depicting Tate as he appeared in January 2000. Griffin acknowledged that he had a prior conviction for criminal mischief resulting from his torching someone's car and causing $1,938 worth of damage. Griffin insisted that he had previously seen Tate somewhere between two to four weeks prior to the attack. He said Tate had told him that he had done time for murder "or whatever," and that he had done "six years or something." Griffin denied that his visit to the apartment had anything to do with crack cocaine. Griffin indicated that he had no doubt that Tate was one of his assailants. James Thornton, a sheriff's deputy from Waller County, testified that when he responded to a call in the early morning hours of January 8, 2000, he found Griffin with blood spurting out of his arm. He said Griffin told him that an unknown black male had pushed him into a window. Thornton indicated that there was a pool of blood around Griffin. He related that Griffin had blood on his pants and his shirt was saturated with blood. Lee Tate testified that he had never seen Griffin prior to his testifying and that he, Tate, had never been to prison for murder. He said that during the time period of the attack he was staying in Harris County with his aunt and did not come back until late January. Tate denied ever having been to the apartments where the attack occurred. He indicated that his hair would have been much longer on January 8, 2000, than was indicated in the picture previously identified by Griffin. He insisted that he had family members who could describe his hairstyle in January 2000 and lots of photographs that show his hair. Tate acknowledged that he had previously been convicted of robbery, misdemeanor theft (twice), burglary of a motor vehicle, misdemeanor theft of service, unauthorized use of a motor vehicle, and two felony counts of delivery of a controlled substance. Tate later acknowledged that the photo previously identified reflected how he looked at the end of January 2000. Tate finally stated that he could not really say how long his hair was on January 8, but that he cut his hair off when it was hot and let it grow when it was cold. Emmitt Coburn, the chief jailer of the Waller County Sheriff's Department, identified a copy of the picture that was previously identified as the picture taken when Tate was booked into the Waller County jail on January 31, 2000. Tate contends that Griffin's testimony was contradictory, that he testified he had been out at a club and could possibly have been intoxicated or high on drugs, and that he never testified he was pushed through a window. While Tate states that Griffin's testimony was contradictory, he does not say in what way it was contradictory. He asserts that Griffin testified he had been out at a club and could possibly have been intoxicated or high on drugs, but there is no record reference to such testimony, and in fact there was no such testimony. To the contrary, Griffin testified that he had not been drinking on the night in question and that his visit to the apartments had nothing to do with drugs. While Griffin did not say he was pushed through the window when he spoke of being hit on the head and his arm going through the window, the factfinder could reasonably have determined from that testimony that he was pushed through the window. Further, Griffin later testified that he did not know who pushed him through the window. Also, the investigating officer testified Griffin told him at the scene that he had been pushed through the window. We hold that the evidence is factually sufficient to support Tate's conviction. We overrule point one. Tate contends in point three that the trial court erred by allowing the State to amend the indictment without notice to him. Our record does not reflect any amendment to the indictment, only that the prosecutor misread it in court. Tate made no objection to the misreading of the indictment, nor has he shown how his substantial rights were affected. We hold that he waived any objection to the misreading of the indictment and that, in any event, the misreading of the indictment did not affect his substantial rights. Tex.R.App.P. 33.1(a) and 44.2(b). We overrule point three. Tate contends in point two that he was denied the effective assistance of counsel at trial. We apply a two-pronged test to ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). First, appellant must show that his counsel's performance was deficient; second, appellant must show the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. A defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness and prevailing professional norms at the time of the alleged error. Wiggins v. Smith, ___ U.S. ___, ___, 123 S.Ct. 2527, 2535, 156 L.Ed.2d ___, ___ (2003); Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Our scrutiny of counsel's performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Id. at 686-87, 104 S.Ct. at 2064. In other words, appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694; 104 S.Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. at 697, 104 S.Ct. at 2070. Under normal circumstances, 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, and the trial record rarely contains sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Tate asserts that his counsel was ineffective in the following ways: 1. persuading Tate to waive a jury trial because counsel was not prepared for the trial setting; 2. failing to file a motion for discovery, a motion to suppress the complainant's in-court identification of Tate, a motion in limine relating to Tate's prior criminal history, and a motion for the State to give notice of intent to use extraneous offenses at trial; 3. failing to present any mitigating evidence during the punishment hearing; 4. failing to call any witnesses on behalf of Tate at either the guilt-innocence stage or the punishment stage of the trial; and 5. failing to object to an amendment of the indictment. Tate suggests that his counsel was unprepared for trial, but there is nothing in the record to indicate any such lack of preparedness. Tate urges that the filing of a handwritten waiver and the failure to file numerous motions shows that his counsel was unprepared. None of these, either individually or as a whole, shows that Tate's counsel was not prepared for trial. Tate fails to indicate any specific witness his counsel could have called, but did not, and what the witness's testimony would have been. He also fails to indicate what mitigating evidence his counsel might have presented. With respect to the numerous motions Tate states that his attorney should have filed, he has made no showing as to anything that could have been discovered, but was not, that would have affected the outcome of the trial, nor does he suggest any basis for a legal challenge to Griffin's in-court identification, nor any legal basis that would prevent the State from cross-examining him regarding his past criminal conduct. Nothing in the record shows any surprise at the State using his past criminal record to impeach him at trial. We also note that the record reflects, at best, a misreading of the indictment by the prosecutor, not a formal amendment to the indictment. There is nothing to show that the result of the proceeding would have been different had the indictment been read correctly. In urging that his counsel was ineffective, Tate relies on three cases: Ex parte Dunham, 650 S.W.2d 825 (Tex.Crim.App. 1983); Hernandez v. State, 943 S.W.2d 930 (Tex.App.-El Paso 1997), rev'd, 988 S.W.2d 770 (Tex.Crim.App. 1999); and Butler v. State, 716 S.W.2d 48 (Tex.Crim.App. 1986). We find that all three cases are distinguishable. In Dunham, evidence at a habeas corpus hearing showed that, at the time of trial, defense counsel was both mentally and physically exhausted from several criminal jury trials and therefore persuaded the defendant to waive his right to a jury trial so that counsel would not have to prepare for the voir dire of a jury. Dunham, 650 S.W.2d at 826. Counsel acknowledged that he knew this course of action was not advantageous to the defendant and that it was bad legal advice. Id. Additionally, the evidence showed that counsel had done little preparation for trial. Id. at 827. In the case at bar there is no evidence that counsel was mentally or physically exhausted and no evidence that counsel had done little trial preparation. In Hernandez, evidence presented at a hearing on the defendant's motion for new trial showed that trial counsel met with the defendant for the first time on the day before trial and "tried the case blind." Hernandez, 943 S.W.2d at 934-35. In the case at bar there is no indication that counsel met with Tate for the first time the day before trial or that counsel "tried the case blind." In Butler, evidence at the hearing on the defendant's motion for new trial showed that counsel did not seek out or interview any potential witness, thereby depriving him of two witnesses who would have challenged the victim's eyewitness identification of the defendant and at least one alibi witness. Butler, 716 S.W.2d at 55-56. Tate suggests that family members were available to testify concerning his identification or perhaps as to alibi, but he has not identified any particular family member whom his counsel should have called and therefore not shown what that witness's testimony would have been. In Butler, the witnesses whom counsel failed to call testified at the hearing on the motion for new trial, either testifying that the defendant was not the person who left the scene immediately after the robbery or that he was somewhere else at the time. Id. at 56. We hold that Tate failed to show that he was denied effective assistance of counsel. We overrule point two. The judgment is affirmed.