*1 evidence, is outside the into admitted However, long as evidentiary record. “stray argument does prosecutor’s invitation,” such
beyond scope State, 611 v.
argument proper. Johnson (Tex.Crim.App.1981). We argument prosecutor’s
do not find that ob beyond scope
went appellant’s eighteenth
jection. We overrule
and nineteenth issues. affirm judgment
Accordingly, we court.
the trial McKINNY, Appellant,
Kenneth W. Texas, Appellee.
The STATE
No. 01-99-00538-CR. Texas, Appeals
Court (1st Dist.).
Houston
Feb. 31, 2002.
Rehearing May Overruled *4 Houston,
Ray Castro, A. appellant. for Doell, Melinda Diane Assistant District Holmes, Attorney, John B. District Attor- Houston, ney, for the State. Originally panel consisting submitted COHEN, JENNINGS, of Justices DUGGAN.* EN BANC OPINION JENNINGS, TERRY Justice. Appellant, Kenneth McKinny, W. simultaneously tried jail two state felo- (1) ny (2) offenses: theft of a truck and theft of a pump $1,500 worth more than $20,000. than Although less acquitted theft, appellant of the truck guilty pump found him of the theft punishment years assessed at two con- $3,000 jail finement in a state awith fine. error, points five contends legally factually the evidence was in- sufficient to support jury’s finding guilt as to the theft of pump, he was right denied the to effective assistance of counsel, he right was denied the to con- counsel, flict-free and the trial court erred by failing hearing conduct a to deter- * Jr., Houston, Duggan, participating by assignment. Honorable Lee retired Jus- at tice, Appeals, Court of First District of Texas Bray truck. mine a conflict of next the front whether interest existed wait and, stolen, between and his trial counsel. within confirmed the truck was minutes, just We affirm. were pumps learned the sto- placed He both men under arrest. len. Background arrest, handwrit- gave After 17, 1998, appellant On December police. ten pumps Charles Havard removed two water Clayton testified that he was a Atkinson from an unlocked tool shed a construc- Contracting supervisor for Basic site, truck, tion in a placed them and drove site, County, in Harris construction located away. immediately taking Almost after Texas. On the afternoon December pumps, Police Houston Officer K.W. he noticed two water Bray stopped the truck for traffic viola- missing from shed on an unlocked tool tion and appellant and arrested Havard site, immediately po- and he notified theft truck pumps. and theft pump lice. He that the industrial testified Immediately prior to en the State *5 question year in old and was one had plea Havard, tered agreement into a approximately value $1700.1 testify against who agreed to in appellant testimony presented State exchange one-year for concurrent sen Havard, stopped stated he Charles who stated, tences for both offenses. Havard appellant, hitchhiking, and asked who was oath, under testify he would that he if appellant he to make some mon- wanted picked up appellant and asked if him he time, At the ey. wearing Havard was money. wanted make some Havard Services, bearing logo shirt of “Tree appellant stated that he and took wa two Inc.,” a trimming company. tree The same ter pumps put them in the back logo appeared the side of the truck he truck 'pawning “with intent them driving. he was Havard claimed that using [appellant’s] ID [Havard] be day, appellant never met before that (Em cause did not have [Havard] one.” ) stopped appellant he because Havard phasis added. help lift knew he would need someone At Bray Officer testified that Ha- appellant the water pumps. When told truck, vard driving the stopped was he ride, he Havard told him Havard needed a an illegal because Havard made left get in Havard then the truck. took time, turn. At appellant riding site, appellant to the construction where the passenger pro- seat. Havard failed to appellant helped put pumps Havard vide proof identification valid Remarkably, into the truck. subse- insurance for the truck. Officer Bray no- quent direct Ha- examination steering ticed the truck’s column cover was stated he not remember his pre- vard did ignition key broken posi- was in a testimony trial their intent regarding normally tion engine that would turn the using pawn pumps appellant’s the water Bray off. determining While whether identification. provided information Havard him cor- rect, by appellant’s asked appellant began twice “meander "When away” times, appellant from the truck. Both cross-examination if he ever told Officer his, Bray re- pumps instructed and that the were not return stolen, Although two water one. ap- theft of pellant charged only and Havard were for the sponded, “I didn’t jail, make I gave either time “so him what he wanted way. say yes, I didn’t I say didn’t no.” to hear.” further, Havard later testified “I never day’s testimony, After the initial pri- stealing. said we were I never said we closing following day, or to the State was, I said never we wasn’t.” Havard testimony County Harris that, prior admitted testifying, plead- Cleeman, Deputy Sheriffs D.B. assigned guilty ed to theft of the truck and the as a bailiff to the 337th District Court. pump, water provided and he conceded he Deputy Cleeman stated while he was his testimony at trial in exchange plea escorting jail Havard back to the after his bargain agreements regarding those testimony, he asked Havard if he was charges. testify there to for the because it appeared he was there for the defense. Through of Houston Po- Cleeman stated that Havard told him “he Cire, lice Officer Scott the State offered help was here to his friend.” Cleeman Havard’s handwritten statement into evi- further testified that Havard told him that objection dence without from he and “had been doing this counsel. The statement contains a version while, throughout quite did of events different from Havard’s trial tes- together” and “since he had already reads, timony, and part: relevant plea taken bargain yesterday earlier I Coupe 59 [and] Laura [sic]. morning going that he was to do whatever Sleeping bridge. under the up, woke buddy it took help get off.” On *6 walking and was to the store to bum cross-examination, Deputy Cleeman con- something to 2 pulled eat. black males generally ceded every- he does not believe up and if go ask me I [sic] wanted to him, thing inmates tell and Havard was money. yes. got make some I said I person not a would Cleeman believe. the truck and we went to the store. I bought 2 sandwiches bag [sic] and a Sufficiency of the Evidence chips of [and] a Coke. leftWe and we points two, In of error one appellant and to went driving got house. man presented contends the evidence legal- then out 5 min[utes] later he [.] returned ly factually and support insufficient to the went back We The driver store[.] jury finding guilt for the theft of the left in a white car. Then I was ask [sic] pump. to drive because the other one did not sufficiency A legal challenge to know how drive a I re standard. did[.] quires whether, us to I was determine after go told were and then [sic] we viewing the up light evidence the most pulled in front of a railroad box prosecution, any favorable to the ground up the rational and loaded wa- [two] trier of fact pumps. ter could have found the essential pulled We left and was beyond elements of the crime over. a reasonable Virginia, doubt. Jackson v. 307, 443 U.S. giving Havard admitted to this statement 320, 2781, 2789, 99 61 S.Ct. L.Ed.2d 560 police, only but insisted he so did be- State, v. (1979); Jones 642, 944 S.W.2d police cause a promised charge officer (Tex.Crim.App.1996). 647-48 him with charge misdemeanor theft and appellant the theft the truck. Ha- We note exclusive the first, gave vard said admittedly facts, judges credibility the of the false, witnesses, do weight given the officer to less the be their A of the suffi- Id. review the fact finder. testimony, jury may believe or disbe- the to con- requires us ciency of the evidence any part all of a witness’s testimo- lieve or admitted, State, any including Penagraph v. 623 S.W.2d all ny. evidence sider (“A 1981) erroneously Op.] been (Tex.Crim.App. may [Panel have evidence which the jury accept is entitled to one version of admitted. Beltran reject reject any another (Tex.Crim.App.1987). facts testimony.”). witness’s testimo presented no Appellant light Viewing the evidence the of his factual ny support or evidence. prosecution, most favorable to the appellant relies argument, sufficiency following with the in testi in Havard’s trial inconsistencies (1) Havard’s criminating evidence: and written state prior oral mony by him at (although repudiated statements was so He contends the evidence ments. (2) trial), the unusual manner which in the confidence as to undermine weak picked up appellant and offered give jury’s weight determination. What mon opportunity him the to “make some is with contradictory evidence testimonial (3) ey,” a shirt and drove a Havard wore jury, it province of the because in the sole logo trimming bearing track a tree credibility turns on an evaluation service, con yet he took to a Cain v. demeanor. pick up water struction site industrial Thus, (Tex.Crim.App.1997). 408-09 (4) steering column of the pumps, all or or disbelieve jury was free believe (as clearly in a
track was broken off seen testimony. A court part of photograph police taken and admit to such a must show deference appeals evidence), indicating strong ted into Viewing Id. at all the jury finding. (5) stolen, possibility was Havard’s testi jury could have neutrally, evidence helped mony him load appel Havard when he testified track, (6) believed pumps into the testimo *7 the helped him load the into lant ny regarding “brag of the bailiff Havard’s jury could then have reason track. The ging” trying help appellant about evi ably inferred from the circumstantial having his testimony and carried out the in fact knew appellant dence together. theft We hold the evidence jury stealing pumps. the A decision legally support jury’s sufficient unjust merely manifestly because finding guilt. of is not evi jury conflicting resolved views of reviewing In the factual suffi Id. at 410. of State. dence favor evidence, ciency of the we examine all the judgment our will not substitute We neutrally, proof ask whether evidence jury. Id. hold the evidence that of the We guilt obviously greatly of is so or weak support factually sufficient outweighed by contrary proof as to indi theft of the jury’s finding guilt of the injustice that a manifest has occurred. cate pump. (Tex. State, 556, King v. 29 563 S.W.3d the fact Crim.App.2000). We will reverse appellant’s first and second We overrule if only a manifest finder’s determination points of error. conducting
injustice Id. In has occurred. disagree with the analysis, may our Assistance Counsel Ineffective determination, probative if even evi jury’s error, point verdict, third but must also supports dence his constitutional he was denied for that of contends substituting judgment our avoid 470
right 2069; effective assistance of counsel.2 at S.Ct. v. Garcia 57 S.W.3d grounds As for his ineffective 436, assistance of 440 (Tex.Crim.App.2001). claim, appellant argues counsel his trial The assessment of whether a (1) object failed to to the State defendant received effective assistance of
calling testify Havard to pur- for the sole counsel must be made according to the pose of impeaching him with prior facts of Thompson, each case. 9 S.W.3d at (2) police, statements to the object failed to 813. We must look to “totality of the to the State eliciting testimony about Ha- representation particular and the circum vard’s police statements to and to the evaluating stances of each case” in introduction of Havard’s unsworn written (3) statement, effectiveness of counsel. Id. In so doing, failed to show the we must recognize pre also strong Havard’s trial was the same tes- sumption timony agreed performance that counsel’s give fell exchange for a (4) plea bargain, range pro within the wide request failed to reasonable limiting Strickland, concerning instructions fessional assistance. testimo- 466 U.S. (5) ny, (6) 688, liar, 2065; characterized Havard at 104 at Thompson, S.Ct. 9 failed to challenge the value of the stolen S.W.3d at 813. Supreme As the Court (7) pump, and failed to improper observed, argument. closing It all tempting is too defendant to second-guess counsel’s assistance after
To show ineffective assistance
sentence,
or
counsel,
conviction
and it
adverse
is
an
must demonstrate
easy
court,
all too
for a
representation
examining
counsel’s
coun-
fell below an ob
jective
proved
sel’s
standard of
defense after
has
unsuc-
reasonableness based
norms,
cessful,
prevailing professional
particular
to conclude that
act
errors,
but for
counsel’s
there
reason
omission
counsel was unreasonable.
probability
able
proceed
result
Strickland,
at
U.S.
104 S.Ct. at
ing would have been different. Strickland
2065. To
presumption
defeat this
of rea-
Washington,
688, 694,
466 U.S.
professional assistance,
sonable
“any alle-
2052, 2064-65, 2068,
S.Ct.
471 in- testimony you State, In Q: [sic] v. 830 Vasquez conduct. lenged today’s at tend offer 948, (Tex.Crim.App.1992) (per 950 S.W.2d picked up [appellant] you had State, curiam); v. Valencia you you had asked him two of 188, Dist.] [1st (Tex.App.-Houston 191 — make wanted to if you 1998, ref'd); Laurant v. pet. were —if yes. The money he said some (Tex.App.-Houston [1st S.W.2d take proceeded then you two ref'd). the rare case pet. Dist.] location in pumps two water appeal is suffi on direct from where the record in the County, them put Harris performance was prove counsel’s cient intent of the truck with back deficient, should ad appellate an court using you [sic] them and pawning Robinson dress the claim. you did McKinney’s ID because (Tex.Crim.App.2000). 813 n. 7 S.W.3d one; is that correct? have of counsel’s of evidence In the absence A: Yes. conduct, ap an challenged for the reasons testimony your will be Q: that what
pellate commonly court will assume stra Is today? possibly be motivation if can tegic will not conclude the chal imagined, and A: Yes. per
lenged constituted deficient conduct testify? Q: you When was so outra formance unless conduct ... A: Yes competent attorney would geous that no else wish Q: anything there Is Garcia, in it. engaged have with your involvement add about regards [appellant]
pumps? Testimony and Statements I the metal container A: drove towards I seen pumps were that the argues counsel was inef- Appellant I the container. as a liar characterizing fective I by myself lift so them couldn’t testimony, failing his trial I person first looking for the went statements, and his written prior oral just happened be and he seen He contends his trial further statement. I there. the street walking down Ha- to show the counsel failed him if he and asked pulled over for a exchange was in vard’s money. He some wanted to make bargain. plea I yes. a ride and He needed said above, into As noted the State entered him and he give him I’d a ride told Havard, agreed who plea agreement with up I towards got pulled in. testify exchange for concurrent one- hundred just a few pumps were aAt offenses. year sentences both up, pulled yards the road. down stated, under hearing, Havard pretrial in the truck put pump *9 oath, follows: testimony would be as his out, pulling I was then when street, I exchange right in And down Q: (By prosecutor) wasn’t but [appel- testimony against got pulled over. your for lant], given the offer you have been Havard, who called the State At year stay jail and both one had loaded he testified is that concurrently; to run cases objec- truck. Without into the pumps correct? counsel, State appellant’s tion from the written Havard about Yes, questioned A: sir. gave police No, statement he to the when he A: sir.
was arrested. The State asked Havard for points” the “high statement, of that and he Qr And you went into the room this
testified as follows: morning in the back and discussed one, particular On that I think I showed years; 2-20 the State offered you I got guys two black they to— less years, than even 2 didn’t they? picked upme got at some store and me Yes, A: sir. to go help them steal some stuff. Now Q: you If do would what? got let’s see. I pick up them to me A: Come out testify here and and tell place the store and went to get the truth. pump the water they and then showed Q: you get So how much time did for me where it was and wanted me to that? drive. think that’s what I said. A: year. j One State ah. testimony Havard’s regarding prior his Thus, appellant’s hearsay,3 statements was contention that his but defense objection counsel no counsel failed to show (except testimony made Havard’s “lead- Later, was in ing”) testimony. exchange plea to this for a appellant’s bargain is objection without merit.4 made no when the State offered Havard’s written statement into Appellant’s counsel also elicited the fact evidence. prior oral and written state- by
On cross-examination police trial ments only were made be- counsel, Havard admitted prior police cause promised officer had testifying, pleaded guilty charge to theft only Havard with misdemeanor theft, truck and pump, the water promised conceded charge appel- providing he was at trial in lant with the theft truck. Havard plea exchange bargain agreements effectively re- disavowed these state- garding charges. ments, those The cross-exami- which not specifically did ap- name reads, pertinent part, nation pellant only follows: obliquely incriminated him. The cross-examination of by Q: counsel) (By defense And this appellant’s counsel revealed Havard did morning you amade statement be- not tell belong did not Bench, fore this you? didn’t to him and change he would in fact Yes, A: that’s the one. story a lighter sentence. Q: And at the time made the state- ment you looking at a punish- The State also called Officer range ment years, to 20 weren’t Cire, who Havard’s handwritten you? statement. Cire read Havard’s statement Yes, A: sir. full, and it was admitted into evidence Q: You go peniten- objection. don’t want to without Officer Cire testified
tiary years, you? for 20 do that Havard’s statement “reflected the dis- (1) hearsay ing 3. "A statement if: Prior ... a criminal case....” Tex.R. Evid. by Statement 801(e)(1)(A). Witness. declarant testifies hearing subject at the trial or and is to cross- statement, concerning examination Havard, on direct examination *10 (A) the statement is: inconsistent with the already having had admitted to been convict- testimony, given declarant's and was under felony couple” ed of "a offenses. trial, hearing, oath ... at proceed- a or other in it. Gar engaged attorney would have [appellant],” that Cire cussion cia, at 440. 57 S.W.3d the state- himself and said later corrected appellant and Havard were ments from the au- may well be considered In what custody at the Appellant was different. advocacy, The Art trial thority on Che, his statement spoke with time he Cross-Examination, L. Francis Wellman Appel- writing. or in recorded was not truly noted, may that the it be said “... objection to attorneys made no lant’s who, knowing while lawyer is great inter- about custodial Che’s rules of his well the established perfectly although testi- appellant, such rogation bro- they should be art, when appreciates See Tex.Code mony was inadmissible. Wellman, The ÁRT of L. ken.” FRAncis (Vernon 3(a) 38.22, § Ann. art. PROC. (4th ed.1986). CRiM. CROSS-Examination, 132-33 admission of unre- (prohibiting Supp.2002) Furthermore, challenging particular before during custo- made corded oral statements free to must be testimony, an advocate object counsel interrogation). dial Nor did testimony was credi- consider whether statement, which that Havard’s written place: ble in the first Che, by admitted was read verbatim not “come off a witness will Sometimes exhibit, request- physical as a evidence and his tes- the witness right” both deliberations, by jury during should ed times a Other timony are unbelievable. aheady because Havard had be excluded contradict- substantially witness will be having made the statement.5 admitted In those situa- by ed other witnesses. has held Appeals of Criminal Court damage has been done before tions the “impeachment by prior inconsistent well leaving so anything, can do may permitted not be where ap- enough may be the soundest alone get employed subterfuge as mere proach. ad- evidence not otherwise before Mauet, Techniques, 248- A. Trial Thomas 1, 4 Hughes v. missible.” (5th ed.2000). 4 (Tex.Crim.App.1999). n. objections, advo- making regard not make to choose cates must be free objec Determining valid whether legal if have a basis them even have not end tions could been made does absolutely objections are doing so. While demon inquiry. The facts of this case error, jurors often necessary preserve why hearing generally is needed strate “trying as lawyers who make them see allega for new trial for motions wherein Id. them.” keep real truth from tions of ineffective assistance of lawyer may importantly, 465. More Here, Thompson, made. are other side to allow the strategically decide coun why appellant’s is silent as to record inadmissible evi- to introduce otherwise was inadmissible sel did what not hurt the simply does dence because im improper evidence and allowed fact, or, may help If a it. case client’s must, We of his co-defendant. peachment reasonably certain evidence lawyer sure therefore, if motivation strategic assume case, usually “it is not hurt his Ghent’s will shall not imagined, and we can be object.” at 466. Id. better not challenged constitut conduct conclude court, prior the trial the con asked performance unless When ed deficient it had that what competent no evidence outrageous that duct was so not be admit- having statement shall unequivocally evidence of the If admits a witness 613(a). statement, ted. Tex.R. Evid. extrinsic made a inconsistent *11 guilty, was responded State that Ha- counsel merely allowed into evidence fur- vard given “several incriminating proof ther of Havard’s duplicity.6 statements,” noting an inconsistency. jury The argument of appellant’s coun- However, it does necessarily not follow sel reinforced this strategy, focusing on that the State called Havard to testify “for several of Havard’s inconsistent state- the sole purpose of impeaching him with ments, especially his written statement: prior his police.” statements to the [Havard] has shown a pattern willing- of State had additional evidence in its arse- ness testify to what’s convenient in above, nal. As discussed there was suffi- his interest at the time to shift the cient circumstantial evidence from which blame, burden, shift to shift the could infer that appellant knew he responsibility of this away crime from and stealing the pumps. himself. importantly, More the record reveals that added.) Havard, (Emphasis according pretrial closing argument, to his state- ment, appellant’s supposed emphasized counsel also testify that he and deal Havard took the made with the pumps put water State as fur- proof them in ther unreliability: back the truck “Havard “with the has told pawning intent several different them stories. And us- [Havard] ing given also admitted that [appellant’s] one-year ID he was because did [Havard] added.) originally not sentence when he facing have one.'” (Emphasis Re- term of gardless years.” two to 20 prior statements, Havard’s record appellant’s reveals trial counsel was appears It this was a sound trial strate- aware of the evidence the State had gy that could and should have worked. against client, and had sound trial However, the record reveals that Havard strategy to deal with that evidence. by half, was too clever as indicated testimony of the regarding bailiff Havard’s It appears from the record the jail. comments on the trip return State offered of Havard circumstances, Even appel- under these solely place appellant at the scene of the lant’s counsel was able to utilize Havard’s pumps. theft of the The record demon written statement and Havard’s other in- strates, undisputed, it that Havard consistent statements the cross-exami- was an unreliable witness. It ap seems Deputy nation of Cleeman to show Havard parent from the appellant’s record that unreliable, was simply person was not a counsels’ trial strategy to prove believe, Cleeman would and “was supposed consistent with Havard’s trial testimony, story ado for the D.A.” appellant did not know were “steal ing” the two water and to complete Based on the record presented, can- ly person discredit Havard say who would not aas matter of law that trial coun- say anything punishment. performance to reduce his sel’s was deficient. We hold When the State later offered Havard’s appellant has not carried his burden written statement into through evidence portion of his claim of ineffective assis- Cire, by objecting, Officer tance counsel. Moreover, the record bring reveals the State did chance to them out on cross-examina- fact, proof not offer the written statement as got tion. In the State Havard to concede Rather, appellant’s guilt. true, asked, appears the State the written statement was not conceding "why your inconsistent should we believe state- [in-court] appellant's statements before counsel had a ment now?" *12 about the yourself with. What concern
Limiting Instructions you hear that he that didn’t statement argues his coun Appellant further willing to He was made to Officer Cire. failing request for to sel was ineffective he guts Officer Cire but spill his to limiting contends instructions. He certain anything paper. put down wouldn’t requested trial counsel should have his guts spill his it didn’t when he did And prior incon jury instruction that Havard’s Mr. Ha- any the stories that match could not be considered sistent statements question. that yourself Ask vard told. only appellant’s guilt and could evidence he is claiming as he’s he as innocent Is purpose limited considered for the be guts, but willing spill to his he’s when credibility. See impeaching Havard’s putting pen to it comes down when 891, 892-93 Contreras it. that because he paper he do Is won’t pet.). no Giv (Tex.App.-San Antonio in his own lies and caught knew he’d be that Havard such en the fact disavowed buddy why with his that’s he believes false, and conceded were statements crucifying he’d up there himself getting necessary. no such instruction was getting that getting off? Don’t be off be argues his trial Appellant further insulted easy. you insulted He’s attacking Ha- counsel was ineffective writing his own lack this Court with credibility closing argument with vard’s buddy to do and he’s done with in accomplice requesting out an witness thing in here. same pRoc. struction. See Tex.Code Ann. CRiM. added.) 1979). (Vernon However, (Emphasis such art 38.14 clearly instruction would have weakened A defendant does not have ap impact testimony of Havard’s police after his give planning did not the theft pellant assist arrest, comment on a prosecutor’s being and was not told the so violates the defendant’s refusal do stolen. process rights. defendant’s due United Again, presented, on the based record Rodriguez, 420- States v. 260 F.3d say perfor- cannot that trial counsel’s 21(5th Cir.2001). direct and On both a matter of mance was deficient as law cross-examination, Officer Cire stated area, appellant hold has not this and we after his gave an oral statement portion carried his burden on this oral appellant’s stated that arrest. Cire of counsel. claim of ineffective assistance from Havard’s statement was different Jury Argument prose Assuming the written statement.7 improp on this issue was argues argument his trial coun- cutor’s Appellant further object er, failing emphasized the fact that sel was ineffective he Cire, by the which improper argument alleged advanced statements to Officer During argument, jury, closing State were never State. differed given by argued guilty because from the custodial statements writing. argu- appel exactly point to confess in refused This was Havard. trying ment was as follows: counsel was to establish lant’s trial of Havard— through cross-examination Now, culpability [appel- as far po to that Havard’s initial statements brought is concerned defense has lant] his trial be differed from argument need lice up one other was ineffective for argue trial counsel Appellant’s trial counsel did not failing does to do so. testimony, appellate counsel and his *13 cause in they were an in attempt fabricated al use his No business. evidence get lighter Thus, charge. value, we cannot showed whether the given, was say as a matter of law that trial counsel paid purchase the amount the pump as object deficient failing to such new, amount necessary the to replace the argument. new, pump pump’s or the fair market value at place the time and of the offense. See
Appellant’s trial counsel also did not ob- (Ver- 31.08(a)(1) § ject the argued jury Tex. when State the Penal Code Ann. 1994). non The value of appellant approximately pump knew the was stolen be- is close to the $1700 cause he knew minimum taking Havard was it to a $1500 amount the pawnshop. required On direct State to prove examination in prove order to testifying felony denied offense. that he Tex. Pe- 31.03(e)(3) (Vernon intended to sell pumps pawn shop. § at a Supp. nal Code Ann. such No evidence presented, was ever 2002). argument clearly
such outside the rec- testified, ord. Havard Appellant’s also when asked trial counsel did not appellant whether pumps knew the were cross-examine the owner about the value stolen, being “I never said we were steal- of pump present expert or an on this ing. was, I never said we I never said we topic. In the absence of affirmative wasn’t.” pump evidence was not worth testified, as the $1700 owner we cannot
There was other circumstantial evidence
conclude the failure to cross-examine the
from which the
could have inferred
deficient,
that,
owner on the issue was
or
appellant
pumps
being
knew the
sto-
for trial
but
counsel’s failure to cross-ex
len, including the unusual manner in which
amine the
on
point,
owner
there is a
appellant was offered a chance to “make
probability
reasonable
of
the result
money,”
some
damage
the obvious
proceeding
been
column,
would have
different.
steering
truck’s
and the difference
Accordingly,
appellant
we hold
has not car
between the
logo
the truck and Ha-
(a
ried
portion
his burden on this
of
claim
vard’s
his
trimming company),
shirt
tree
(a
of ineffective assistance
counsel.
and the location
of
construc-
site).
tion
In summary,
in
regard
presented,
Given the record
we cannot
contentions that his trial
inef
counsel was
conclude
counsel’s failure
fective,
simply
say
cannot
that his trial
point,
at this
there
a reason-
performance
counsel’s
was deficient based
probability
able
result
the proceed-
on the record
Appellant
before us.
has
ing
Therefore,
would have been different.
not
presumption
overcome the
that his tri
we hold
has not carried his bur-
al
might
counsel’s actions
be considered
portion
den on this
of his claim of ineffec-
Strickland,
sound trial strategy.
466 U.S.
tive assistance
counsel.
689,
2064;
at
104 S.Ct. at
Gamble v.
Property
Value
(Tex.App.-Houston
S.W.2d
[1st
Appellant
pet.).
Dist.]
no
To find trial
asserts
trial counsel was
ineffective based
questioning
pump’s
grounds
for not
asserted
ineffective
speculation
would call for
pump.
owner about the value of
stolen
which we will
Gamble,
owner, Atkinson,
pump’s
engage.
testified the
pump
Appellant
worth approximately
On
has not
the presump
rebutted
$1700.
cross-examination, he
pump
signifi
testified the
tion that his trial counsel made all
year
was one
old and
had been
industri-
cant
decisions
the exercise
reasonable
An
conflict
interest
actual
professional judgment,
has
to make a
required
if counsel is
that coun
exists
not demonstrated
the record
advancing
client’s inter
choice between
sel
ineffective assistance. See
rendered
advancing
other inter
in fair trial
est
record does not indicate whether the mo-
tion was ever to the trial court Further, above, an appel noted hearing whether a was conducted lant the alleged must show conflict of in alleged motion. No mention of the conflict terest had an effect adverse on counsel’s brought interest was at- *15 court’s Morrow, 952 performance. at S.W.2d trial, tention at and represented counsel Here, assuming even the existence of an appellant throughout trial. appel actual conflict of interest between counsel, lant and his trial counsel nonethe
Trial filed a for trial counsel motion new guilty” less of “not obtained a verdict appellant day for judgment the same charged, of on one the two offenses signed, appointed and the trial court theft of the truck. appellate for on appellant counsel the same day. Appellant subsequently pro filed a se appellant We not shown hold has either for In argu- motion new trial. addition to an conflict of the existence of actual inter- ing the merits of his case in the for motion or on est an adverse effect his counsel’s trial, new appellant alleged also the trial arising performance alleged from such dismissing court erred in not his trial Accordingly, appel- conflict. we overrule and appointing Ap- new counsel. point lant’s fourth error. pellant an alleged he had filed “official grievance” against his trial counsel with There is indication in the no the “Bar approximately Association” one appellant’s record that motion to dismiss month to based on counsel’s counsel, appointed his or counsel’s motion alleged preliminary failure file motions withdraw, ever were appellant’s Appellant behalf. indicated ruling, appellant trial court a did that the Bar had taken not action not request present the matter to the grievance, appealed and that he had court at his trial. A defendant carries the ruling Disciplinary “Board of bring burden to such matters to the trial Appeals.” Gamer, court’s attention. 864 S.W.2d at filing appellant
The of a civil action not 99. The record indicates did case, against court-appointed attorney a not a so in this is do and we hold the trial per warranting by se conflict interest dis court did not commit error not conduct qualification Further, ing hearing of counsel the whim a on this matter. criminal defendant. Dunn not required trial court was to consider pro If a (Tex.Crim.App.1991). se motion new trial. At filed, per applied, repre rule se defendant could the time was delay prevent by simply filing by appellate appointed trial sented counsel. no against court-appointed right hybrid representation. civil suit coun There is (Tex. “grievance” no copy sel. Because Rudd v. allegedly against Crim.App.1981). trial filed concurrently; to run cases point of both appellant’s fifth overrule We that correct? error. Yes, sir. > Conclusion in- you [sic] <© judgment of the affirm We trial, is that today’s offer at tend to
court. McKinny up you picked Mr. had asked you you and the two of — requested, En banc consideration was wanted you if him were—if en majority of Court voted for and a yes. he said money make some panel’s decision. banc consideration proceeded then two Chief Justice En banc Court consists of from a loca- take two water COHEN, SCHNEIDER Justices County, put them in Harris tion TAFT, MIRABAL, WILSON, HEDGES, truck intent the back of the RADACK, NUCHIA, JENNINGS, you using Mr. pawning them DUGGAN. ID McKinny’s you did because one; is that have correct? COHEN, en dissenting
Justice <¡ Yes. decision, joined by Duggan. Justice banc *16 testimony your will be Is that what o* participating. Justice RADACK not today? COHEN, Justice, B. MURRY <i Yes.
dissenting. <y testify? you When show of coun- To ineffective assistance <j Yes.... (1) sel, appellant must demonstrate that ob- representation counsel’s fell below an to anything you else wish Is there & jective under standard reasonableness with your involvement add about (2) prevailing norms and but professional the McKinny regards to Mr. with errors, for there is a reasonable counsel’s pumps? proceeding probability the result the container I towards the metal drove have
would been different. Strickland and were in I seen pumps that the 668, 688, 694, Washington, 466 104 U.S. I in the container. pumps the 2064-65, L.Ed.2d S.Ct. I by myself lift them so couldn’t (1984); Hernandez v. I person looking for the first went (Tex.Crim.App.1986). to be just happened he seen and trial, morning the On the I down the street there. walking Havard, a who State made deal him if he and asked pulled over plead agreed guilty to both offenses He money. some wanted to make appellant in testify against exchange I ride and yes. He said needed one-year To seal its concurrent sentences. him ride and he give told him I’d deal, required the State state up the pulled I towards got in. oath, hearing, pretrial under what just few hundred pumps were testimony would be: up, pulled I yards the road. down pump in the truck put the (By prosecutor) And in ex-
Q: the out, it pulling I testimony then when your against change street, I down the right given wasn’t but McKinny, you Mr. have been pulled over. stay jail got year of one offer Q: Court, Havard) (By it, appellant’s attorney Where allowed
does car theft come in? that exactly prosecutor what did. A: It a separate offense from earli- Havard, At the State called who
er, happened about a month that testified he and had loaded particular date. pumps. Havard did not then mention part pretrial of his testimony that fa- Q: you How did all steal the car? i.e., appellant, vored that ap- Havard had A: The car. car I driving proached appellant on the street and of- stolen. money fered appellant to load pumps, Q: [appellant] Did he know that? telling appellant without the truck A: I didn’t tell him. I I didn’t ask so pumps being was stolen and the were sto-
mean. Although len. the State had elicited that from jury’s Havard outside the Q: Did know the sto- before, presence only minutes the State len? Instead, never jury. A: I didn’t tell him and he ask didn’t asked Havard State about his written you know— police when arrested. The Court, Q: (By the prosecutor) So points” “high State asked Havard for the all, how are going [the State] statement, he testified: prove guilty? that he’s particular one, On that I think I showed A: (By prosecutor) You still want got guys two black to— this on the record? picked me up got at some store and me Q: Yeah. What’s the evidence that he’s go help them steal some Now stuff. [appellant’s] guilty? let’s I got pick up see. them to me *17 place the store and get we went to the to A: given He had several in- [Havard] pump they water and then showed criminating statements. [Ha- His they me where was and me wanted to vard’s] statement not match did I drive. think I that’s what said. with this particular story as to property where the came from. added.) (Emphasis Thus, (ex- judge objection realized Ha- that Defense counsel made no testimony appellant cept at put “leading”) testimony. vard’s the crime this to He did loading pumps, hearsay, object scene but testimo- not to nor did he ny did not show that so prior did that the statement not admissi- knowingly. response judge’s impeach ble to Havard Havard because question asking prove contrary. how the State would had not testified to the Both prosecutor objections appellant guilty, the would have stated been meritorious.1 Later, rely on would inconsistent the State offered into evi- when (State’s hearsay to prove appellant’s statements dence this entire exhibit statement 5), guilt. though again object. Even the law does not allow failed defense counsel to (1) case, "A hearsay ing deporta- is not if: Prior ... criminal or in a tion;_" 801(e)(1)(A) Statement Witness. declarant testifies (emphasis Tex.R. Evid. hearing subject at the trial and is to cross- (State’s added). Havard’s statement exhibit statement, concerning the examination 5) oath, was not under inconsistent (A) the statement is: inconsistent with any testimony given Havard had then testimony, given declarant's and was under hearsay. and was therefore trial, hearing, proceed- ... oath or other stealing tell him “we’re Q: You didn’t counsel then cross-examined Defense they’re not mine”? testimony— pumps, brought out the these Havard had favorable No, sir. —that A: exchange for his the State promised help you load just him Q: You asked failed, plea agreement; defense them? however, that the State tell Yes, sir. A: exculpatory testimony just induced ya’ll take to load Q: long did it How from Havard: pumps? Broussard) Q: (By go Mr. Let’s back so, maybe Probably minute or one A: you happened before and Mr. what mean, I at the most. minutes two McKinny to this container. went up. simple to load they pretty were picked McKinny Mr. gave you You — mean, thing just I the hardest up, you? didn’t walking of the getting out truck A: Yes. down, you reaching back there truck that Q: driving You were know, up. them picking supposedly stolen? heavy, just They’re not all Yes, A: sir. sitting then people. And takes two truck, clos- them the back Q: you pick up Mr. And where did then getting back ing door McKinny? off, driving proba- in the truck and hitchhiking. A: He On JFK. bly two minutes. Q: you him Okay. Why pick up, did McKinny Q: met before You never Mr. hitchhiking? he was because you? did somebody help A: I Because needed No, A: sir. No. me because lift water Thus, for me to lift heavy too by myself. plea condition its 1. The Havard, tes- created bargain offer Q: you him did picked up So when appellant, timony favorable help you? him to ask never A: him if he to make asked wanted *18 Instead, had jury. the State the dollars, money few some and he (without testify defense ob- Havard I him to said he needed a ride. told 5, Ha- jection) State’s exhibit about get in. hearsay statement vard’s unsworn Q: you Okay. proceed And did from that shortly after his arrest made the point to where container instigated the crime had was? innocently participat- while Havard Yes, A: sir. ed; Q: help get You asked him out brought attorneys then Appellant’s 2. you load those? testimony, Havard’s favorable out Yes, A: sir. jury they never informed the Q: Did tell him that these weren’t hearing outside pretrial in a
your pumps? only minutes be- jury’s presence the (a) fore, bargained had the either State I make a statement A: didn’t (b) had testimony, prom- very say say I I way. yes, didn’t didn’t repeat felony of- leniency ato ised no. it, (c) get present- fender to had example, For the State called Officer it, oath, ed Bray impeach under Havard’s to the many Havard how pretrial Court at hearing as pre-trial statements he had made to the truth; though it were the police. judge The ruled that the State impeach could if he had misstated spent The State then most of the he given, number statements had presenting rest of the trial Havard’s go but the State could not into con- multiple pretrial ap- statements that tents Despite omitted statement. pellant up had him in picked a stolen this ruling, the State offered contents truck and offered him money to load Bray, of Havard’s statement which in- pumps, while Havard never appellant, criminated attor- knew the truck or were neys did not hearsay to that as or stolen. The State did this even request limiting instruction regarding though Havard’s testimony nev- impeachment. er materially varied from he what promised the State he would Cire, The State next called Officer who give. By this strategem, the State presented State’s exhibit Havard’s writ- try was able to almost the entire statement, damning piece ten unsworn hearsay evidence, case all or most hearsay objection that came without of which would not have been admis- jury requested limitation and that the dur- except impeach sible the “false” ing Cire read deliberations. bargained version the State had follows: jury’s outside presence just be- A: “1 p.m. [Ha- Read the I can. I best fore trial.2 Koppe vard] was at 59 and Laura Appellant’s attorneys objected to sleeping never I bridge. up under a woke using leniency State’s to induce what walking and was to the bum store to perjured the State itself called something to eat. black males Two and then avoiding hearsay rules “im pulled up if and asked me I wanted peaching” that testimony. They never go money. make some I said tried to blunt the State’s attack on Havard I yes. got in the truck and we went by telling jury the State’s role brought two store. creating very testimony the bag chips, State sandwiches and a now impeaching. They objected never to a Coke. We left and we went hearsay. State’s exhibit was See driving got house. man out 801(e)(1)(A). And never five minutes later returned. Tex.R. Evid. store, asked for a instruction that Havard’s We went back to the the driv- prior inconsistent evi statements er left in a white car. And I was *19 guilt, appellant’s dence of but were instead told—then I was be- asked to drive only purpose admitted for the limited of cause the other one did not know impeaching Havard. See v. Contreras to how drive standard. I I did. State, 891, 766 (Tex.App.- S.W.2d 892-93 told go was where to and then 1989, pet.) San Antonio no (reversing pulled inup front of a box railroad instruction). failure to such give car the ground is what it said Havard, jury argument, prosecutor 2. the State called for what the called "a sweet deal.” witness, prosecutor offering its own proud liar. The said The State should be so of not perjured that Havard himself when he testi- sweet deals to induce its to witnesses commit promised exchange peijury. fied as he had the State in
483 lim- again without objection, again without up the two water and we loaded jury instruction, again without pulled iting We left was pumps. connection being State’s over.” informed testimony. this state- testified that Havard’s Officer Cire Cire discussion that ment “reflected the al- Appeals and The Court Criminal McKinny,” later had with but Cire Mr. have appeals courts of all federal most Appel- different. said the statement was by inconsis- “impeachment that held he custody spoke lant in when permitted may not be tent not Cire, appellant’s statement was subterfuge to as a mere employed where writing, in at- recorded or jury not otherwise get evidence before objection no torneys made Cire’s testi- 1, S.W.3d, State, 4 Hughes v. admissible.” interrogation mony about his custodial (collect- 4, (Tex.Crim.App.1999) nn. 7 & appellant. testimony was inadmissi- Such cases).4 hap- That is what ing federal Ceim. PROC. Ann. art. ble. See Tex.Code it pened Appellant’s counsel allowed here. 1979). (Vernon 38.22, § 3 Nor did (1) hearsay, by objecting not happen (State’s object that ex- Havard’s statement cases, or, to the abuse as in the federal 5), Cire, by hibit which was read verbatim regarding impeachment of one’s Rule 607 exhibit, physical admitted in evidence as a witness, or, Hughes, as in based own by jury requested during delibera- (2) 403; limiting requesting not Rule tions, be Havard should excluded because (3) instruction; revealing not having made the already admitted Havard’s creating role testimo- State’s statement.3 ny. Dunn, who testified Next came Officer attorneys Appellant’s There is more. hearsay. to more Dunn testified he took argued to object the State did when oral statement consis- and it was jury guilty because 5, tent Havard’s writ- with State’s exhibit writing: refused to confess he implicated ap- ten This further statement. but, pellant, again, attorneys his did not Now, culpability Mr. far as the hearsay limiting request has defense McKinny concerned argued instruction. State later you brought up argument that one other testimony by that this Dunn showed yourself need concern with. What reliability Havard’s statements hear didn’t about the statement State’s exhibit to Officer Cire. He he made Cire spill guts Officer willing point, Havard was recalled
At
put anything down on
he had
but he wouldn’t
again
the State and
testified as
guts
spill
And when he did
paper.
for his
promised
exchange
the State
that Mr.
match
of the stories
plea. Again
impeached,
didn’t
guilty
139,
State,
613(a)
S.W.2d
governs
v.
the examination
4. See also Adams
3. Tex.R. Evid.
1993,
concerning prior
pet.
(Tex.App.-San
of witnesses
inconsistent
Antonio
147-48
28,
provides,
State,
(Tex.
"...
if
ref'd);
the witness
statements
v.
Zule
having
unequivocally admits
made such state-
ref'd);
pet.
App.-Corpus Christi
Pruitt
ment,
admitted_”
same shall not be
extrinsic evidence of
(Tex.App.-Fort
910-11
unequivocally
admit-
ref'd); Contreras v.
pet.
Worth
*20
statement;
thus, given
having made the
ted
891,
(Tex.App.-San Anto
892-93
613(a),
objection
extrinsic evi-
under Rule
an
(held,
give
not
pet.)
no
error
to
nio
not have been
dence
the statement should
instruction).
limiting
admitted.
yourself
Ask
that
in
ques-
prove
prove
told.
to
a felony
order
offense.
31.03(e)(3) (Ver-
tion.
§
Is he as innocent as
See Tex.
claiming
he’s
Ann.
Pen.Code
(theft
willing
Supp.2002)
$1,500
he is when he’s
non
spill
guts,
his
less than
misdemeanor).
a
it
class A
but when
comes
putting pen
down to
Defense counsel
never cross-examined
paper
the owner
he won’t
it.
about this
do
Is that because
nor
their
expert,
own
but that
caught
he knew he’d
in
be
his own lies
deficiency
shows no
because such wit-
why
and that’s
his
believes with
bud-
might
opined
pump’s
nesses
have
that the
dy
up
getting
crucifying
there
himself
fair market value on the date of the theft
he’d
getting
be
off? Don’t
getting
be
off
$1,500.
explain,
exceeded
That does not
easy.
that
He’s insulted
and insult-
however, why defense counsel did not
ed this
with his
Court
own lack writ-
point out that
in
weakness
the State’s
ing
buddy
and he’s done it with to do
proof
argue
pump
that any
purchased
thing
same
here.
$1,700
for “approximately”
new
and used
(Emphasis supplied.)
year
for a
purposes
for industrial
would
In
country,
this state and
a defendant
depreciated
have
at
least
value.
$200
does not
have
confess. His refusal to
argument
That
ap-
could have benefitted
do so is
guilt.
not evidence of
See United
pellant and almost certainly
would
Rodriguez,
States v.
260 F.3d
420-21 have hurt
The failure
make
him.
it
(5th Cir.2001).
ineffective,
does not alone render counsel
Nor did defense counsel
when the
strengthens
it
our conclusion that
argued
appel-
State twice
that
representation
a
counsel’s
far
whole was
pump
lant knew the
was stolen because he
below what
this Court should tolerate.
taking
pawn-
knew
Havard was
it to a
Strickland,
466 U.S. at
at
S.Ct.
fact,
shop.
there
no
(“The
such evidence. 2063-64
benchmark for judging
claim of ineffectiveness must be whether
There
more
ways
are
which counsel’s
counsel’s conduct so
prop-
undermined the
performance
our
weakens
confidence in
er functioning of the
process
adversarial
Strickland,
the outcome of this case. See
that the trial cannot
having
be relied on as
688, 694,
2064-65,
485 knowing truck was appellant’s strate not the explain for defense counsel their pumps belong the did not in evi stolen or that gy letting all this inadmissible for Indeed, jury acquitted appel- Havard. the hearing is argument. dence and No such theft, competent- in a however, lant of the truck needed, no conceivable because case, a ly there is reasonable defended justify performance. strategy could acquitted it would probability that have This court has held counsel ineffective A “reasonable pump him of the theft. error, a single egregious a even without a result is all that probability” of different healing, motion new trial when the Strickland, requires, and a “reasonable justified by any error could not conceiv be may preponder- less than a probability” be State, strategy. Cooper able v. Strickland, the 466 ance of evidence. See 301, (Tex.App.-Houston Dist.] 305 [1st 693-94, A S.Ct. at 2068. “rea- U.S. at 104 State, 1989, ref'd); pet. v. 697 Snow not mean “that probability” does sonable 663, 667 (Tex.App.-Houston S.W.2d [1st likely conduct more counsel’s deficient dism’d); pet. see also Valencia Dist.] in the than not altered the outcome (Tex.App.- v. S.W.2d case_” Rather, appropriate “the stan- ref'd) (coun 1998, pet. [1st Dist.] Houston dard of lower.” review should be somewhat multiple sel’s errors reversal de required proceeding Id. “The can be result spite lack trial hearing); of new Laurant unreliable, pro- and hence the rendered (Tex.App.- unfair, ceeding if the errors of itself even ref'd) (same). 1996,pet. Houston [1st Dist.] by preponder- cannot shown a be single have here far more than a We error. ance of the evidence to have determined Here, multiple we have serious deficiencies the Id. outcome.” beginning from to end. tried, If properly this case had been deficiency The harmful. case was This most of the State’s evidence would testimony was defensible. Havard’s about come in or have been limited have would appellant’s knowledge lack of of Havard’s Havard, impeachment instruction appellant, intent to steal favored could not have State’s witness. Jurors per- would have seemed more impeachment testimony as considered that jurors suasive if had known the State’s substantive would have evidence.5 Jurors role If creating it. had known newly heard that was a arrived the prosecutor impeaching “perju- truck’s helped hitchhiker who had ry” very testimony he had induced driver, a fel- properly uniformed four-time deal,” by offering minutes earlier a “sweet the truck and who had who had stolen jurors may anything have doubted just prosecutor’s gotten, words prosecutor said. This was not a theft that argument, a “sweet deal” from the State weekend, holiday, occurred on a a or in the perjury, the prosecutor commit what called p.m. dark of It night. occurred 2:00 pump questionable a load value. day. regular business issue, third would sustain loaded two from an minutes less judgment, reverse the and remand property unlocked container. No was bro- cause. Havard, although get ken into to them. truck, key
driving using stolen wearing shirt that bore same
logo supported as the truck. These facts because were consistent we, legally have and factu-
5. And neither could which would ments that evidence argu- considerably strengthened appellant’s ally insufficient.