827 S.W.2d 626 | Tex. App. | 1992
Lead Opinion
OPINION
Appellant was convicted of the offense of Aggravated Assault on November 22,1989, in trial cause No. 89-97-603 CR and was sentenced to eight years imprisonment in the Institutional Division of the Texas Department of Criminal Justice, but was released on shock probation. Robbins’ probation was revoked on November 21, 1990. Appellant has filed a frivolous brief regarding the revocation of his probation. This brief is in conformity to prevailing case law and will be discussed at the end of this opinion.
In trial cause No. 90-08-00831, appellant was convicted of the offense of Kidnapping and was sentenced to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. In trial cause No. 90-08-00832, appellant was convicted of the offense of Aggravated Sexual Assault and was sentenced to 75 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant pled not guilty to both offenses but was found guilty on each by a jury. The court assessed punishment in both cases.
The evidence shows that the complaining witness, (Complainant) encountered the appellant, (Robbins) late in the evening of July 31, 1990, at a lounge in Conroe, Montgomery County, Texas. Robbins invited Complainant to his house at about 1:30 a.m. (on August 1, 1990,) to which offer she agreed. Complainant, on a motorcycle, followed Robbins and his employee, Gene Buentello, to the appellant’s house. Liquor was imbibed, Complainant danced with Robbins; they hugged and kissed, but when Robbins invited Complainant to spend the night with him, she refused. After a conversation between Complainant, Robbins and Buentello, Robbins walked Complainant to her motorcycle again asking her to stay but she continued to refuse. She departed on her motorcycle but within a short time she returned to get directions from Robbins. This occurred at approximately 4:00 a.m.
When Complainant returned, she found Robbins standing in his front yard. She turned the motorcycle off, left it in the street, and walked toward Robbins. She asked him for directions. He did not answer. Instead, he put his arms around her and would not release her. They continued to struggle and Robbins hit Complainant in the face until she fell to the ground. Then Robbins removed her shoes and her underwear, took his shorts off, and proceeded to have sexual intercourse with Complainant for approximately five minutes.
He took her into the house and made her disrobe and get into a shower. After she showered, Robbins threatened her if she
Injuries to Complainant included a broken nose, her lower lip was punctured by her bottom teeth, a blood bruise on her temple, bruises and contusions about her jaw, and a laceration to the upper lip. An emergency room physician testified regarding these injuries. He also stated that he found dirt particles around the entrance to her vagina which was consistent with her having been sexually assaulted in the outdoors on the ground. He found no evidence of injuries which would be consistent with a motorcycle accident.
Buentello confirmed the times, dates, and presence of Complainant at Robbins’ house.
One of the workers of whom Complainant had asked for help testified that she had stated having just been raped. A coworker called their dispatcher who called the police. One officer testified that they noted clothing in the yard outside the house and clothing laying around inside the house, which included a bra in the window, and other clothing in the tub and shower.
The State’s Exhibits included more than 25 photographs and exhibits which were consistent with Complainant’s testimony.
In appellant’s first point of error, it is contended that there was insufficient evidence to support a conviction of aggravated sexual assault because the essential element of penetration was not proved. In reviewing the evidence to determine the sufficiency thereof, we view it in the light most favorable to the verdict to determine if any rational trier of fact could have found beyond a reasonable doubt the essential element of the case which appellant contends is missing. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Combs v. State, 643 S.W.2d 709 (Tex.Crim.App.1982). The only element of which the appellant complains in this case is the penetration of the Complainant’s sexual organ with the appellant’s sexual organ. In direct response to the question, “Did he penetrate your vagina with his penis?”, the Complainant answered, “Yes, he did.” This testimony standing alone is sufficient evidence to sustain the appellee’s position on point of error number one. See Garcia v. State, 563 S.W.2d 925, 927 (Tex.Crim.App.1978); Martinez v. State, 662 S.W.2d 393, 395 (Tex.App.—Corpus Christi 1983, pet. ref’d). We overrule appellant’s point of error one.
Appellant’s second point of error alleges misconduct by the court at the penalty phase of the trial in permitting four witnesses to testify concerning the commission of extraneous offenses by the appellant. Testimony was elicited from four women who personally knew the appellant and each testified of his having committed violence against them of an assaultive nature. Two of the women also testified that the appellant had restrained them and deprived them of their liberty on several occasions. Each of the offenses were unadjudi-cated and were committed prior to the offenses made the basis of this appeal.
We hold that the trial court did not abuse its discretion in allowing this testimony regarding prior unadjudicated offenses of a
Point of error number three by the appellant alleges that he was denied the effective assistance of counsel. The Sixth Amendment to our Constitution of the United States gives the right to counsel and according to the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant in a criminal case has a right to “effective assistance of counsel”. For the appellant to prevail on this point of error he must show under Strickland, supra, that not only trial counsel was deficient, but the said deficiency was such to deprive the appellant of a fair trial. There must be a reasonable probability that, but for the deficient performance, the result of the trial would have been different. See Rico v. State, 707 S.W.2d 549 (Tex.Crim.App.1983). The standard of review for effectiveness of counsel at the trial level is also gauged by the totality of the representation of the appellant. Ex Parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980). Whether the defendant below won or lost his case does not determine effectiveness by itself. See Ex Parte Cruz, 739 S.W.2d 53 (Tex.Crim.App.1987) and Curtis v. State, 500 S.W.2d 478 (Tex.Crim.App.1973). It is presumed that trial counsel acted competently and was effective, but the defendant may rebut this presumption to prove ineffectiveness. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).
Appellant isolates an ambivalent statement made by the trial court judge during the opening statement of the defense attorney wherein the court stated, “You need to make an opening statement says [sic] you are going to produce evidence that I don’t think at this point is likely to be.” There was no objection from defense counsel, nor was there any further comment by the Judge in this regard. There was no further reference to the remark, no explanation of the remark, and the statement did nothing to otherwise interrupt the trial proceedings. The opening statement continued and there appears to be, from the remarks in the record between the Judge and the defense attorney, an amicable relationship. This remark by the Judge would not be enough, under these circumstances, to warrant an objection, an instruction to the jury, nor a motion for mistrial.
Appellant further complains that defense counsel called a doctor to the witness stand as a defense witness without a prior interview and conference with the doctor to discuss the nature of the testimony to be elicited. Appellant further complains generally that trial defense counsel did not have “visible mastery of the rules of criminal evidence.” Appellant is generally critical of the means and methods his trial counsel utilized, from his cross-examination of State’s witnesses to his inability to make proper objections. Appellant refers us to “the totality of the circumstance shown.”
We compliment the authors of the brief for the State in their analysis of trial counsel’s performance for the appellant, and we utilize the facts they present therein. Defense trial counsel obtained a preferential trial setting for the appellant. He withdrew as counsel representing the co-defendant upon realizing a possible conflict of interest. He went to extraordinary lengths
We find that appellant’s contention that assistance of trial counsel proved ineffective has not been proven by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528 (Tex.Crim.App.1985). Appellant has failed to demonstrate that the result of the trial would have been different based upon his allegations. See Rico v. State, 707 S.W.2d 549 (Tex.Crim.App.1983). Appellant has likewise failed to show that any deficient performance prejudiced his defense. Boyd v. State, 811 S.W.2d 105, 109 (Tex.Crim.App.1991); Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986). Absent a showing that counsel’s performance was deficient and the deficiency prejudiced appellant’s defense, we cannot conclude that the appellant’s conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064. The method for proving the prejudice component has been spelled out as follows:
The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068. We overrule appellant’s point of error number three.
Motion to Revoke Probation
Prior to the appellant’s trial for the offenses of Kidnapping and Aggravated Assault made the subject of this appeal, the appellant pleaded guilty to the offense of Aggravated Assault on November 22,1989, in cause No. 89-07-00603-CR. He was sentenced to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice and was released in February of 1990, on shock probation. On August 8, 1990, the State filed a motion to revoke probation which was amended on August 9, 1990, said motion being based on the appellant’s commission of the aggravated assault and the commission of the kidnapping charge before this Court, failure to pay supervisory fees, and based upon positive test results for alcohol and marijuana cannabinoids.
On November 21,1990, after hearing, the trial court entered an order revoking appellant’s probation and sentenced him to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice.
The appellant’s attorney, in a response pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), concedes in his brief that the evidence during the hearing on the motion to revoke appellant’s probation was sufficient to prove by a preponderance of the evidence that the appellant had committed the offense of Kidnapping. The appellant further concedes that the trial court did not abuse its discretion in its findings, and concludes that there are no arguable points of error as to these issues.
After reviewing the statement of facts and the transcript in the revocation hearing, the Court is in agreement with appellant’s attorney that there are no arguable points of error. Appellant’s counsel’s brief contains a copy of a letter in which he notified appellant that he had filed a “frivolous” brief and informed appellant of his right to obtain the record and to file a pro se brief. As of this date, we have received no brief from the appellant. We have made a full examination of the entire record in the revocation hearing in question and find no error requiring reversal thereof. We, therefore, find the appeal from the revocation hearing without merit and we affirm said revocation. We affirm the judgment of the trial court below.
AFFIRMED.
Dissenting Opinion
dissenting.
I respectfully dissent to the majority’s disposition of the extraneous offense point of error. I believe the introduction was error, see Huggins v. State, 795 S.W.2d 909 (Tex.App.—Beaumont 1990, pet. ref’d) (concurring opinion) and I cannot determine beyond a reasonable doubt that the evidence made no contribution to an assessment of the punishment, see Hunter v. State, 805 S.W.2d 918 (Tex.App.—Beaumont 1991, pet. granted) (dissenting opinion). Furthermore, I believe Judge Onion’s analysis of Tex.Code CRIM.Proc.Ann. art. 37.07 § 3(a) (Vernon Supp.1992) in Grunsfeld v. State, 813 S.W.2d 158 (Tex.App.—Dallas 1991, pet. granted), is well reasoned and correct. See also Slott v. State, 824 S.W.2d 225 (Tex.App.—Beaumont 1992, pet. filed). Since the majority feels otherwise, I respectfully dissent.
