*1 576 nature, ultimately community contribut the division of the estate.1
violent which I Gervitz-Faram, Faram v. ed to the divorce.” can not reach the conclusion. It is same 839, (Tex.App. clear, me, 844 S.W.2d at least to the trial court consid- 95 8 writ). 1995, in Similarly, Fort no in dividing community Worth ered fault es- insupporta- divorce granted grounds I it say appears tate. is clear because bility, upheld another court the trial according the trial court divided the estate court’s consideration of the fact that one Phillips’s proposed to Ms. division and ac- rendering at fault in the mar spouse totally. “was There- cepted assigned her values Roberts, riage insupportable.” fore, v. Roberts I that the error am forced to conclude 75, 1983, (Tex.App.-Waco no majority probably 663 S.W.2d found caused writ); case, Roberts, prior see Roberts v. Tex. improper judgment. of an rendition R.App. 1981, 835, 44.1(a)(1). (Tex.App.-Waco 621 I Consequently, P. writ) (divorce granted ground no on the and remand trial would reverse for new marriage insupportable). also See property on the division. Vautrain, 309, Vautrain v. dism’d) 1983,
(Tex.App.-Fort writ Worth
(trial may court consider evidence of fault f granted
even i divorce on no fault 730,
grounds); Clay Clay, 1977, (Tex.Civ.App.-Houston [1st Dist.] writ) (cruelty dividing in
no considered grant property, even the trial court when WALLACE, Appellant, Robert Marvin insupportability). ed divorce on “just right” dividing What is depend on the
property ground should not Texas, Appellee. The STATE of just granted; on which the divorce is No. 06-01-00068-CR. right property separate division of Texas, If spouse’s Appeals from the dissolution issue. one Court of the fi- conduct causes the destruction Texarkana. particular marriage, nancial benefits of a Dec. 2001. Submitted relied, spouse benefits on which the other March 2002. Decided a trial court should have discretion to con- community dividing sider that factor Rehearing May Overruled 2002. of the regardless grant- basis estate — ing the divorce. BURGESS,
DON Justice.
DISSENTING OPINION majority respectfully
I dissent. The considering the trial court erred
finds They go on to hold the agree.
fault and I did not abuse its discretion
trial court divisions, unequal premise. approved 1. This court has upon an erroneous but these were not based *5 Walker,
Judy Hodgkiss, Stephen J. Firm, LLP, Paris, appel- Moore Law for lant. Waite,
Gary County Atty-Ap- L. Asst. Section, Paris, pellate appellee. for CORNELIUS, C.J., Before GRANT and ROSS, JJ.
OPINION Opinion by Chief Justice CORNELIUS. Robert Marvin was convicted of Wallace weapon, aggravated deadly assault with a 22.02(a)(2) (Vernon § Tex. Pen.Code Ann. 1994). jury found him his guilty A and set home, females and then saw two punishment, prior enhanced one convic- and leave; tion, twenty-five imprisonment. man was years’ the man out and come bat. carrying a baseball 20, 2000, July The offense occurred on Babb, home Bert park the mobile where testimony that There Stansell was was Merritt, girlfriend, Betty Beth and because a month angry with Molaris about Molaris, victim, Randy At resided. incident, Molaris Babb had before and this evening, about 7:30 or 8:00 that Sabra had struck fight and Molaris gotten into Stansell, Smith, Amy and a man identified Babb, eyes. of his There blackening both Wallace, Babb’s mobile home. as entered Smith, Stansell, testimony also was Molaris, had began beating The man who had drinking day, all and Mullins had been watching televi- sitting been the couch mobile come for a short visit Babb’s bat, sion, causing with a metal baseball left, presumably get more home and injuries to head severe Molaris’ and arm. beer, they and returned with Wallace. picked up nearby Molaris wooden rock- Stansell, during apparently what him, put chair and it in front of which ing day drinking, Babb’s continuous visited the assailant smashed with the bat before July along mobile with home earlier again striking Molaris. One of wit- Mullins,1 sis- Smith and Jennifer Wallace’s say nesses heard Wallace to the victim ter. then returned to her own Stansell like, something you being like “how do house, After visiting. where Wallace up?” Wallace then left the beaten mobile talking, went drinking more home, Smith, accompanied by Stansell Stansell, Smith, and back to Muhins outside, parked car got into a and left. Babb’s home. Stansell made Wal- mobile female, testimony There was that another lace aware of her dislike Molaris. Mullins, later had identified as Jennifer *6 the group come with in the car but not had they Stansell and Smith testified entered Babb’s mobile home. the initially gave description each a false of Molaris, him calling man who attacked Stansell, Smith, Babb, Amy
Sabra
Bert
“Billy,”
they gave
false state-
and that
the
Merritt,
victim,
Betty Beth
and the
Molar-
protect
ments to
Wallace.
is,
gave eyewitness testimony
all
identify-
person
as
ing Wallace
the
who struck Mo-
de-
testified for the
Several witnesses
laris five or six times with the metal bat.
Al-
fense and
that Wallace and Mike
said
Two other
who saw
witnesses
Wallace
20, 2000,
July
len were in Dallas on
shortly
other times before or
after the
incident,
immediately
of
after
date
police
identified him in a
photo-
assault
a
truck. This
purchased
Wallace had
new
display.
neighbors,
graphic
Megan
Two
the sales-
testimony
alibi
was refuted
Streety
Layton,
and Melissa
who were sis-
to
He
man who
the truck
sold
Wallace.
ters,
containing
were
a car
outside when
Paris
he
the truck to Wallace in
said
sold
up
females
one male came
to
three
31,
July
until well
20.
July
not
after
They
mobile
noticed
car
Babb’s
home.
of the sales
produced copy
The salesman
it had
because
the name “Jennifer” sten-
of
contract
confirmation
the transaction.
as
Although
ciled on it.
their versions were
issue,
different,
chal
In his first
Wallace
they
they
both said
saw
slightly
to
lenges
sufficiency of the evidence
of
go
at least two
the females
man
conviction, contending that
support
heard a
of
his
They
into the mobile home.
lot
the com-
“the State failed to show that
screaming coming from inside
mobile
"Jennifer”
on the
not Jennifer Mullins.
1. The
named
vehicle
plainant
bodily injury.”
require
suffered a serious
The
do not
statutes
State
specify
prove
Wallace does
whether the chal
both
Wallace caused serious
lenge
bodily injury
deadly
is to
and that he used a
legal sufficiency,
the factual
weapon.
person may
A
sufficiency,
guilty
aggra
or
be
of
both. We will consider both
if
vated assault
he commits an assault with
challenges
justice.
in the interest of
Ald
558,
deadly weapon
bodily injury
and causes
rich
559 n.
if he
an
or
commits
assault and causes
(Tex.Crim.App.1996); Chimney
bodily injury.
serious
Madden v.
1999,
(Tex.App.-Waco
no
244 (Tex.App.-Waco
pet.).
'd).
pet. ref
charged
Wallace was
with the
22.02(a) (Vernon
§
Tex.
Ann.
Pen.Code
type
aggravated
assault committed with
1994) describes two kinds of aggravated
deadly weapon,
jury
the use of a
where the
1) assault,
assault:
as defined
Section
assault, bodily injury,
would have to find
22.01,
bodily injury
which causes serious
weapon,
deadly
and use of a
but not seri
another, including
person’s spouse;
or
bodily injury.
ous
Since Wallace chal
2) assault,
22.01,
as defined in
Section
lenges
sufficiency
on a
the evidence
which the defendant uses or exhibits a
required
matter that the State was not
deadly weapon during the commission of
reject
prove,
challenge.
we
charged
the assault. Wallace
in the
three,
In issues two and
indictment
intentionally, knowingly,
challenges
trial
court’s order of restitu
recklessly causing bodily injury
or
to Mo-
tion to the victim in the amount of
by hitting
using
laris
him and
and exhibit-
$6,227.65
expenses
for medical
to-wit,
ing deadly weapon,
bat,
a baseball
$3,000.00
wages,
totalling
lost
that in the manner of its use and intended
$9,227.65.
generally Tex.Code
See
capable
causing
use was
death and seri-
CRim.
42.037(b)(2)(A-C) (Vernon
PROC. Ann. art.
bodily
ous
injury.
jury
was instruct-
Supp.2002). Wallace contends that the tri
ed:
solely
hearsay
al court relied
evidence
provides
person
Our law
that a
commits
order, thereby
an
issuing
denying
such
person
if
intentionally
assault
or
process
him
due
of law under both
knowingly
recklessly
bodily
or
causes
United States and Texas Constitutions.
injury to another.
*7
brief,
In its
the State has
error
conceded
A person
aggra-
commits the offense of
point, agreeing
hearsay
on this
that
the
person
vated assault if the
commits as-
objection
by
raised Wallace at trial was
sault,
defined,
as hereinbefore
Thus,
only
well-taken.
the
we con-
issue
person
deadly weapon
uses or exhibits a
disposition
sider is
this error
re-
what
during the commission of the assault.
quires.
parties
The
have called to our
“Deadly weapon”
mani-
anything
means
procedurally
attention
similar to
two cases
made,
festly designed,
adapted
or
case,
disposition
this
in
the
was han-
which
purpose
inflicting
the
of
death or serious
differently.
Cartwright
dled
In
v.
bodily injury; or
that
in
anything
the
Op.]
(Tex.Crim.App.
man she appellate saw enter the mobile home on serve for review any complaint that date and carrying come out a baseball regarding the in-court identification. bat. if properly Even the issue raised had been preserved appeal, the record no shows testified,
Streety objection, without valid basis on which the trial court should she saw Stansell and “that guy” come out suppressed have the in-court identifica- home, of the mobile and that the man was by tions made witnesses who had viewed carrying a baseball bat. the She viewed photographic array. the photographic array by she was shown police photograph and identified the in the In determining admissibility top center as the man she saw. She fur- identification, of an in-court we use a two- ther identified Wallace as the man she saw First, pronged inquiry. we determine leaving July mobile home on 20. whether the out-of-court identification Stansell, who did not testify viewing procedure impermissibly suggestive, she, the photographic array, testified that second, and we determine whether that Smith, spent July drinking Mullins 20 suggestive procedure to a gave rise sub then, Wallace, company went irreparable stantial misidenti- likelihood home, over to Babb’s mobile where Wal- steps analysis fication. An of these two lace attacked Molaris with the bat. She requires totality of the us to examine the also identified court. surrounding particular circumstances
Generally, the defendant’s attack G.A.T., case. In re 16 at 827. S.W.3d against an in-court identification as be analysis, step Under the first of the we ing by impermissibly suggestive tainted pretrial note that a procedure may be pretrial procedure. identification This is suggestive, yet but impermissibly sug by suppress done a motion to the identifi gestive. Barley v. 906 S.W.2d at cation, hearing with the held outside the 33; G.A.T., In re at 827. We S.W.3d jury’s presence. Barley v . record, have reviewed the as well as the 27, 32 (Tex.Crim.App.1995); Mar photographic nothing array, and we find (Tex. tinez v. impermissibly suggestive about either the Crim.App.1969); 7 Michael J. McCoRmick, array ar itself or the officer’s use of the al., et Texas Practice: CRIMINAL And Forms ray questioning of the witnesses. (10th ed.1995). § 52.06 At Trial Manual County Holmes asked the Lamar least, very there should have been a six-person pho sheriffs office to prepare objection trial to the in-court identification tographic array, specifically to include made the witnesses who viewed the In Wallace and five similar individuals. photographic array. The failure to com brief, that error was plain object about Wallace contends or to in-court identifica array committed because photographic tions procedural constitutes default and anyone matching origi did not contain any complaint appeal. waiver of In re G.A.T., (Tex. description given by nal the witnesses. App. denied). 2000, pet. validity argument. Houston In find no to this [14th Dist.] We case, objected During this defense counsel to the counsel and discussion between photographic array, concerning admissibility introduction of the but the trial court suppress any photographic array, prosecutor did not move to or in fashion of the *9 object challenge array to the in-eourt identifications made that the asserted without by who had viewed the array. prepared witnesses was and shown to the witnesses objection array pre- An to after a sus- the does Wallace had been named as the during to view his attacker investigation opportunity pect. state of Given the the certainly attack, was time, his attention and obligation was no to at the there baseball person swinging the fixed on the description lineup fitting of prepare that Molaris no evidence bat. There is suspect. assuming not a Even someone the impaired at visually or was intoxicated could be procedures Holmes used Layton Streety and of attack. time the find from suggestive, considered we cannot positive in their identifica- were likewise procedure would record that such a the the was focused on tions. Their attention the identifi- made witnesses’ in-court have car stenciled arrival the with “Jennifer” of than rehable. cation less window; they and two the saw Wallace step analy As the the second of home, heard women Babb’s mobile enter sis, Appeals the Criminal has Court of inside, saw and screams from that five nonexclusive factors mandated there holding a baseball bat. While leave weighed against corrupting should be the early between the were some differences any pro suggestive of identification effect two descriptions by these witnesses given under the assessing reliability cedure Wallace, of physical appearance the totality of circumstances: circumstances, we totality of the given the 1) the opportunity the of witness view in-court identi- find no evidence that then- crime; the at the the accused time of by tainted fications of Wallace were 2) attention; of degree the witness’ impermissibly suggestive pretrial identifi- 3) accuracy prior the of the witness’ de- cation. accused; scription the of positively note that We also Stansell 4) certainty the level of demonstrated in court as the individu- identified Wallace confrontation; the the witness at her to Babb’s mobile al who went with and the struck Molaris with home who and 5) length time between crime The record does not indicate baseball bat. and the confrontation. ar- photographic that she ever viewed the (Tex.
Loserth v. S.W.2d ray, ques- so identification cannot her be Crim.App.1998). are required We re- tioned on that basis. the trial findings
view court’s on these challenge trial five and Issues six factors, regarded as matters of historical jury give court’s refusal to instruction fact, in the deferentially light most favor- such The trial court refused self-defense. ruling. able to the trial court’s These an instruction for two stated reasons: weighed factors should then be de novo and support charge did not evidence against corrupting sugges- effect of the is inconsistent Wallace’s self-defense pretrial procedure. tive identification claimed alibi defense. express the trial court has not made When fact, findings of as is the case historical using person justified A is here, light facts are viewed most force another when and to against ruling. trial court’s favorable reasonably the force degree he believes protect himself array immediately necessary to photographic victim, attempted use against the other’s use or shown to three witnesses: Mo- State, 21 laris, unlawful women lived in a force. two who Clifton (Tex.App.-Fort pet. home, Streety Worth neighboring mobile d). raises the issue ref If the evidence quite Layton. positive Molaris Wallace; self-defense, to have the accused is entitled ample had identification of he *10 586
an instruction on the defense submitted to The Court of Criminal Appeals held that
State,
jury.
1,
v.
Riddle
888 S.W.2d
6 the defense counsel was not ineffective for
State,
(Tex.Crim.App.1994); Evans v.
876
because,
such failure
in order to raise the
459,
(Tex.App.-Texarkana
S.W.2d
464
necessity,
defense of
the defendant must
1994,
pet.).
no
The defendant has the
violating
admit
the statute under which he
burden to come forward with such evi- was charged,
necessity
being offered
dence,
State,
907,
v.
21
at
S.W.3d
Clifton
justification
as a
that weighs against im
but the
required
defendant is not
to testify
posing punishment for the act that violated
in order to be entitled to raise the defense.
the statute. To raise necessity, the ac
may
Self-defense
be
raised
the testimo-
cused must admit that he committed the
ny of other witnesses
cir-
describing the
necessity
justi
offense and then offer
as a
State,
cumstances of the
Boget
offense.
v.
State,
fication. Pennington v.
54 S.W.3d
624,
40 S.W.3d
626 (Tex.App.-San Antonio
2001,
852 (Tex.App.-Fort
pet.);
Worth
no
2001, pet. granted);
State,
Evans v.
876
State,
see also Aldrich v.
587 170, (Tex.App.-Texarkana 173 9 Chapter in of S.W.3d Self-defense is included State, ref'd); v. 28 Code, Ex- 2000, Dotson pet. the entitled “Justification Penal 2000, along Responsibility,” Criminal cluding (Tex.App.-Texarkana S.W.3d 55 and necessity, public duty, protection 'd). pet. ref and of life health. Ann. Tex. Pen.Code (Vernon Supp. 1994 & 9.01,
§ et seq. requirements, these Regarding 2002). lan- statutory with the Consistent certainly implies, but motion Wallace’s cited, that cases we hold guage and the state, evi that the specifically does not alibi, was and because Wallace’s defense him at the time of unknown to dence was con- he did not admit the act but because failure to discover that trial and present he not even when tended was diligence. lack due to a of was not evidence committed, to a he was not entitled witnesses came that the The motion states instruction.4 self-defense the case regarding forward after article eight and concern Wal- Issues seven If newspaper. we Paris appeared new trial. Hé contends motion for lace’s state) (and motion does not assume 1) failing that the trial court erred to Wal were unknown that the witnesses 2) motion, on his and hearing hold a trial, if and we assume lace the time of trial its in overrul- court abused discretion state) (but that does not the motion trial motion. The motion for new ing the appeared at a time too newspaper article 1) contrary to alleges that the verdict is to call the two affiants as late for Wallace 2) evidence, and two wit- the law witnesses, motion would meet Wallace’s have after the trial nesses come forward newly discovered the first two criteria for who that the assailant in this case state However, Donna the affidavit of evidence. Williams, Ray man not Billy was a named not that state Williams S. Marshall does Wallace. he, Wallace, was the that not told her of granting denying or assailant, give not the affidavit does and trial the discre motion for new within lies ques criminal incident any details may tion the trial court. We not substi affidavit, if even Marshall’s tion. Based on tute for that of the trial judgment our true, differ it is we cannot conclude court, may decide only but rather we result based ent in the trial would outcome whether the trial court’s decision was arbi Instead, Marshall’s evi testimony. on her State, trary v. 911 or unreasonable. Lewis evidence, merely impeaching is dence (Tex.Crim.App.1995). To ob only best serve cast which would at newly tain new trial based discovered than Wallace suspicion on someone other 1) evidence, a must that: defendant show Manley Compare guilty party. as the un newly discovered evidence at 173-74. Teresa Ash- 2) trial; known to him at time merely states Williams ford’s affidavit was not failure to discover the evidence fire, case up, had and one set beaten 3) diligence; his lack of due due to affidavit, people j)ast. in the This several probably bring and true would evidence Marshall’s, no contains evi like that of trial; result in another about a different to the crime Williams confessed dence that 4) is admissible evidence that the affiant no statement and contains cumulative, corroborative, collater merely knowledge about al, any personal has Manley v. impeaching. or contradictory defenses are or even sistent 4. But see Booth jury to for the decide. matters (Tex.Crim.App.1984), which held that incon- any jail crime or about connection said go Williams he would & advised may have had to it. against Amy, it. He also reinforced that *12 Jenny Sabra & he could care take of.
The supporting two affidavits Wallace’s added.) motion are as follows: (Emphasis 1. Donna Marshall’s affidavit: 2. Teresa Ashford’s affidavit: I Billy talked Ray to Williams around My formly name is Teresa Ashford. I 1, April finding 2001 after out Robert (sic) Billy Ray lived Williams. been Wallace had convicted on assault yr I ago Around a 1 seen him beat [sic] charges. was Billy It rumored had up Stanley a man named in Millery our committed this crime. We are real Stanley’s jaw in home which resulted friends, so I good wanted to him ask being places. broke 3 times in 3 different it. came my [sic] about He over house hospital And in 2 days. he was for conversation, after an & about hour of I proned He is to violence and has [sic] brought up subject. In begining physically beat me numerous of times in he he said didn’t do it then [sic] & past. began talking about whether he would He has also beat Brian on Vaughn his get something time for like that or could porch front with a baseball bat. He had probated. it I kept talking be then he & told a me about time when he had set a saying why Amy Jenny did & kept man on fire with lighter sleep- fluid for argued make statements. & We back ing in his bed. as I Jenny forth because far as knew by On one occasion we were awoke was never there. No one had ever men- followed, being some friends that were just kept they tioned & he Jenny saying Billy Ray guy got went outside would be taken care of. We continued out of pickup with baseball-bat he why conversation he asking [sic] was swung Billy Ray Billy Ray at and took say did Bobby would Sabra it. He also away the bat from him and his busted moving right mentioned to Annona after windshield. this incident & after right came back this In he July conviction. had moved to attempt place the blame on living back from in Ft. Worth with a immediately began Williams after as- woman named Teresa. gave sault when Smith Stansell and state-
Billy history against has a of violence police present ments to they were ago A few he set years other [sic]. and that man “Billy” named sleeping on for in Janie Clemenske fire Later, however, assailant. these two wit- bed. I also have witnessed attacks gave po- nesses to the second statements Shughart Brian & man named saying that Wallace was the lice assailant. He beaten ex Guye. has named Tere- they Smith gave Stansell and said false & He had sa Jessica Brooks. tried statements, blaming first Billy at night his own we cut throat one when they trying pro- because assault were of us him drinking. were Three held it They tect Wallace. later decided was bleeding. down and he was that, right they do and also realized 22nd, April Sunday, police On 2001 he came that the would find out about and trouble, they they changed back over was he so saying get & called would lawyer police, did testi- Ft. Worth who the assault their statements and told trial, if he positively case Teresa & asked confessed fied lawyer he to this would see time. The the assailant.
589 Supreme Court Strickland by Wal States The affidavits submitted for the U.S. 104 S.Ct. requirements Washington, lace do not meet the (1984), Texas post-trial newly admission of discovered L.Ed.2d 674 for new trial based on Appeals evidence. Motions Hernandez Court of Criminal newly evidence are not favored discovered (Tex.Crim.App.1986). great are by the courts and viewed with prongs. has of review two The standard Drew v. caution. the accused must prong, the first Under Manley v. (Tex.Crim.App.1987); performance was defi- that counsel’s show *13 State, 173; v. 28 28 Dotson S.W.3d performance, the deficient cient. To show 55. The and infor S.W.3d at statements repre- show that defendant must counsel’s sufficiently in the affidavits are not mation objective standard fell below an sentation result definite to indicate that a different the second Under of reasonableness. if the affiants’ state would have occurred that the must show prong, appellant an at a ments were admitted into evidence performance prejudiced the de- deficient trial; in new the evidence referred to the prejudice, To the defendant fense. show cu merely impeaching affidavits is and is that, probability must show a reasonable trial mulative of admitted at at evidence errors, unprofessional but for counsel’s Williams; place to on tempting blame have been proceeding result of would plot fully and the to blame was Williams Our review of defense counsel’s different. explored may and trial. It exposed at be representation highly deferential. is We that, from all the even if inferred evidence coun- presumption a that indulge strong in Williams made statements described range within a wide of sel’s actions fell affidavit, about Marshall’s he had heard reasonably professional assistance. Wal- plot him to blame for assault and presumption lace must overcome might simply was what speculating about circumstances, counsel’s actions under the happen charged if he were with the as might strategy. trial be considered sound sault. Marshall’s affidavit states State, 21, 32-33 Chambers 903 S.W.2d was rumored that committed the Williams (Tex.Crim.App.1995). assault and that he at first denied it. He denial, only spec never his but retracted reviewing court be Rarely will a might happen about to him if ulated what afforded, appeal, opportu a direct Moreover, charged he was with the crime. in regarding make nity to a determination evidence that Wallace the attacker Any of counsel. alle effective assistance having overwhelming, is seven witnesses must assistance be gation of ineffective positively identified him as assailant. record, grounded firmly No commit witness testified that Williams appeal generally does record on direct ted In circum the assault. view these possible into adequate inquiry contain an stances, the did not abuse its trial court by trial counsel. made tactical decisions refusing hearing hold a discretion State, 808, 813- Thompson v. See failing grant or in it. Wallace’s motion (Tex.Crim.App.1999). Supple 14 nn. 5-6 ten, In and contends issues nine Wallace establishing of the for mentation record coun- he received ineffective assistance may accomplished be ineffective assistance trial, in under rights sel at violation of trial for new and hear through motion and Constitutions. the United States Texas Reyes ing thereon. Although 812, (Tex.Crim.App.1993). 815 apply the standard of review We case, trial filed in this by motion for new for claims set out the United such allegation the motion no strategy, made ineffec- assistance. Where a valid trial tive counsel. assistance of strategy or a trial feasible the absence evidence, of record is the for such basis particularly criticizes trial counsel, by appellant inaction defense permitting counsel for investigat the two has not demonstrated ineffective assis police officers, ing Detective' Steven tance of counsel. See Burruss v. Wolf, Holmes and Patrolman David to tes (Tex.App.-Texarkana S.W.3d tify given contents of the statements ref'd); pet. Young v. Stansell, Smith, Babb, by Merritt, to them (Tex.App.-Texarkana 712-13 Streety, Layton. argues He that much ref'd). 1999, pet. of this testimony hearsay inadmissible speculation. While no we have record stated, For the reasons we affirm the showing strategy pursu what counsel was judgment.
ing, strategy, we find a reasonable as re closing argument, vealed counsel’s Opinion Dissenting Partial Justice *14 permitting be testimony this to admitted GRANT. objection. summation, In jury without GRANT, Justice, dissenting. defense ju counsel tried to convince the witnesses, that the rors State’s particularly an contend- Robert Wallace raised issue Smith, Stansell and were not to be be evidentiary ing that he was to an entitled they lieved because had changed their sto for Trial. The hearing on his Motion New original they ries from the gave ones to opinion not address this majority does police, particularly description of matter, but rather whether he is addresses tall, being male, the attacker as a blond a entitled to new trial. only way dissimilar to Wallace. The to duly hearing Counsel a requested demonstrate attempt the variances and to Motion New indi- for Trial. The record jury to convince the that these witnesses evidentiary cates that no held hearing was believed, not should be towas allow all and the Motion for New Trial over- statements had they made to be admitted ruled. evidence, into though even it was hearsay testimony of police officers. This was The only defendant reason- need assert only way of these contents state grounds able that deter- relief are not brought jury’s ments could be to the atten minable from the in to be record order possibly tion and demonstrate the unrelia purpose The of the hearing. entitled to bility of the witnesses. Had the develop contents to raised hearing fully is the issues objected been to and statements not Reyes the motion. evidence, jury allowed into would nev (Tex.Crim.App.1993). er known have substantial variances trial, Prior of the trial wit- to two in the witnesses’ stories over time. *In commit- “Billy” nesses had stated that had addition, Wallace does not demonstrate they ted the later question, assault but that, probability that there is a reasonable changed say their to Wallace stories that but for counsel this permitting evidence had committed the assault. The affidavit jury, before the the result have would been Billy Ray of Donna Marshall states different. had an Williams told her that he had called
Permitting objec attorney otherwise Fort to determine Worth jail to if testimony tionable come into evidence whether he would time” he “get objection confessed, per lawyer without is not and he se ineffective stated jail and advised go had stated he would this
against confessing. Although admission had that he
direct Williams question, raises the assault
committed strong inference. this clearly shows that affidavit to Marshall after was made
statement been convicted on assault
Wallace had had
charges. further stated Williams She had another town
told her he moved to
right after this incident had occurred after right
had come back the conviction
Wallace.
This was sufficient raise affidavit which would entitle
facts
evidentiary hearing on his Motion for New
Trial. it to
I abate this case and remand would evidentiary hearing
the trial court for an
on the Motion for New Trial. *15 LEBO, Appellant,
Sean Texas, Appellee.
STATE of
No. 04-02-00009-CR. Texas, Appeals
Court
San Antonio.
March 2002.