Anthony Wert v. State
2012 Tex. App. LEXIS 8489
| Tex. App. | 2012Background
- Appellant Anthony Wert was convicted of misdemeanor assault after a jury trial and sentenced to one year in Harris County Jail, suspended, with one year of community supervision.
- The incident began when Wert, intoxicated, resisted leaving his girlfriend’s apartment to retrieve his car, leading to a domestic-violence complaint.
- Officers encountered Wert at the doorway; he was aggressive and uncooperative, and was detained and eventually escorted outside and to a patrol car.
- Wert’s girlfriend described Wert pushing her, causing a head injury; the officers testified Wert’s behavior showed violence and risk to safety.
- Wert’s custodial statement to the first officer, obtained during the investigation, was admitted without a defense objection; no Miranda warnings were read before the statement.
- The defense argued ineffective assistance of counsel on four grounds, including suppression of the statement, jury-charge/information variance, defense-of-property instruction, and cumulative-errors; the court affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not moving to suppress Wert’s custodial statement. | Wert | Wert’s counsel failed to move to suppress; custodial setting required suppression. | No reversal; motion to suppress would not have been granted based on the record. |
| Whether a variance between the information and jury charge violated due process. | Wert | Disjunctive jury charge allowed; evidence supports any alternate theory. | No due-process violation; hypothetical correct charge supported by evidence; no error. |
| Whether counsel was ineffective for not requesting a defense-of-property instruction. | Wert | Strategy focused on accidental-push theory, not defense of property. | No deficiency; trial strategy permissible. |
| Whether cumulative error warrants reversal. | Wert | Isolated omissions do not cumulatively amount to ineffective assistance. | No cumulative-error reversal; judgment affirmed. |
Key Cases Cited
- Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002) (handcuffing/neutral-custody not custody for Miranda purposes)
- Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App. 1991) (indictment/information may be conjunctive; charge can be disjunctive)
- Rosales v. State, 4 S.W.3d 228 (Tex. Crim. App. 1999) (disjunctive charging permissible when evidence supports any theory)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (hypothetically correct jury charge; proper articulation of elements)
- Villareal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009) (definitions of offense elements; adequacy of charge)
- Jackson v. Virginia, 443 U.S. 307 (1989) (sufficiency of evidence standard; deferential review for verdict)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective-assistance standard; deficient performance and prejudice)
- Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007) (reviewing counsel’s performance when record is undeveloped)