By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Counsel was not ineffective in aggravated assault trial [In re J.V.] (01-4-32).
On October 4, 2001, the El Paso Court of Appeals held that defense counsel did not render ineffective assistance in the trial of an aggravated assault case.
01-4-32. In the Matter of J.V., UNPUBLISHED, No. 08-99-00309-CV, 2001 WL 1169923, 2001 Tex.App.Lexis ___ (Tex.App.-El Paso 10/4/01) [Texas Juvenile Law (5th Edition 2000)].
Facts: This is an appeal from an adjudication of guilt for the offense of aggravated assault with a deadly weapon.
On June 24, 1999, the State filed a petition based on delinquent conduct alleging that Appellant, J.V., had committed aggravated assault with a deadly weapon. The petition alleged that on June 21, 1999, Appellant intentionally and knowingly threatened the victim, N .R., with bodily injury and exhibited a deadly weapon, to wit: a knife. At the adjudication hearing, N.R. testified that she and Appellant were at his home and they engaged in sexual intercourse. Afterwards, Appellant told N.R. that he had a girfriend and that she was pregnant. N.R. testified that this disappointed her. Appellant asked why she was mad. She told him she did not think it was right for him to do what he did with her if he loved his girlfriend. N.R. stated that she was upset with Appellant and that she hit him. Appellant hit her back. N.R. was still upset and she made several phone calls in an attempt to find a ride home.
Appellant and N.R. continued arguing and at one point, Appellant put his hands around her throat. N.R. called her friend, Mateo, and Appellant hung up the phone. Appellant then placed a large butcher knife to N.R.'s throat. N.R. testified that she was scared and that Appellant threatened her stating, "You know that I'll do it." Appellant held the knife to her neck for "at least seven seconds." N.R. called the police and they arrived within five minutes.
Officer Fernando Corral testified that when he and his partner, Officer Serna, knocked on Appellant's door, N.R. ran out. Appellant then slammed and locked the door. The officers attempted to kick the door open. These attempts were unsuccessful and they eventually entered the home through an unlocked window. Appellant was taken into custody and Officer Corral recovered the knife.
The trial court adjudicated Appellant a delinquent and entered a commitment order. Appellant's motion for new trial was overruled. This appeal follows.
Held: Affirmed.
Opinion Text: Appellant presents four issues on appeal. In Issue No. One, he attacks the factual sufficiency of the evidence. In Issue No. Two, Appellant contends he received ineffective assistance of counsel. In Issue Nos. Three and Four, he contends the trial court erred by disallowing proper examination of a witness and by failing to grant a new trial. We begin with the sufficiency issue.
A. Factual Sufficiency
In Issue No. One, Appellant argues that evidence is factually insufficient to support the adjudication of delinquency. In reviewing a factual sufficiency challenge, the appellate court reviews all of the evidence impartially and sets aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See In the Matter of A.S., 954 S.W.2d 855, 860 (Tex.App.--El Paso 1997, no pet.); R.X.F. v. State, 921 S.W.2d 888, 900 (Tex.App.--Waco 1996, no writ); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996).
A person commits an aggravated assault if he commits an assault and (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon during the commission of the assault. See Tex. Penal Code Ann. § 22.02(a) (Vernon 1994). The actor must act either intentionally, knowingly, or recklessly.N.R. testified that she became disappointed and upset with Appellant after he told her he had a pregnant girlfriend. N.R. stated that she hit Appellant and that he hit her back. N.R. testified that she was upset and she made several phone calls in an attempt to find a ride home. She stated that they continued arguing and at one point, Appellant put his hands around her throat. N.R. called her friend, Mateo, and Appellant hung up the phone. Appellant then placed a large butcher knife to N.R.'s throat. N.R. testified that she was scared and that Appellant threatened her stating, "You know that I'll do it." Appellant held the knife to her neck for "at least seven seconds." Officer Corral testified that putting a knife to someone's throat could cause serious bodily injury and that the knife in this case was a deadly weapon.
In reviewing all of the evidence, we find that Appellant intentionally exhibited a deadly weapon during the commission of an assault on N.R. We do not believe the trial court's finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The evidence was factually sufficient to support the trial court's order adjudicating Appellant a delinquent. Issue No. One is overruled.
B. Ineffective Assistance of Counsel
In Issue No. Two, Appellant contends he received ineffective assistance of counsel. He maintains that trial counsel was ineffective in (1) failing to call a material witness; (2) failing to file a motion for continuance; and (3) failing to object to the State's unlawful search and seizure. We address each complaint in turn below.
The United States Supreme Court has held that a juvenile is entitled to representation by counsel. See In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The right to representation includes the right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has previously held that a juvenile is entitled to raise on appeal the issue of his trial counsel's effectiveness. See M.B. v. State, 905 S.W.2d 344, 346 (Tex.App.--El Paso 1995, no writ). To prevail on a claim counsel was ineffective, appellant must show: (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for counsel's unprofessional errors, a different outcome would have resulted. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. The record must support a claim of ineffective assistance. See Johnson v. State, 691 S.W.2d 619, 627 (Tex.Crim.App.1984).
1. Failing to Call a Material Witness
Appellant first argues that trial counsel was ineffective because he failed to call a material witness, Matt Self. The failure to call a witness may support an ineffective assistance of counsel claim only if it is shown the witness was available and the defendant would have benefitted from the testimony. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983). Appellant asserts that Self's testimony, had he been available to testify, "would have severely impugned the credibility of the complaining witness, to such an extent that Appellant would have been found not delinquent."
Appellant attached an affidavit from Self to his motion for new trial. In the affidavit, Self states that N.R. called him from a guy's house and he heard N.R. and someone arguing. He stated that he could not hear what they were arguing about, but that they were calling each other names and cursing at each other. He stated that the phone was disconnected and that he did not think much about it at the time. Self stated that a few days later, N.R. called him and told him that the guy she was visiting had put a knife to her throat.
Appellant admits that Self was not available to testify. Even if he were available, we fail to see how Self's testimony, if admitted, would have benefitted Appellant. His affidavit testimony does not materially differ from N.R.'s version of the assault. Appellant has failed to show that trial counsel's performance fell below an objective standard of reasonableness and that but for counsel's unprofessional errors, a different outcome would have resulted. Trial counsel's failure to call Self as a witness was not ineffective assistance of counsel. This portion of Issue No. Two is overruled.
2. Failing to File a Motion for Continuance
Appellant next contends that trial counsel was ineffective because he failed to file a written motion for continuance upon learning that Self was unavailable. Appellant cites no authority to support this contention. He merely argues that trial counsel should have reduced his oral motion for continuance to writing to preserve the issue for appeal. The record reflects that the trial court denied the motion but stated that Appellant could raise the issue of the missing witness in his motion for new trial. There is no indication that the trial court would have ruled differently if the motion had been in writing.
Given our disposition of the previous sub-issue, we do not believe that had the continuance been granted and had Self been allowed to testify, the outcome would have been different. Appellant has failed to show that trial counsel's performance fell below an objective standard of reasonableness and that but for counsel's unprofessional errors, a different outcome would have resulted. Trial counsel's failure to file a written motion for continuance was not ineffective assistance of counsel. This portion of Issue No. Two is overruled.
3. Failing to Object to the State's Unlawful Search and Seizure
Finally, Appellant alleges that trial counsel was ineffective because he failed to object to the State's unlawful search and seizure. Specifically, Appellant argues that trial counsel should have objected to the improper admission of the weapon. The testimony established that Appellant threatened N.R. with a large butcher knife by holding it to her throat. Officer Corral testified that he was dispatched to an assault in progress where a weapon had been exhibited. He was told that during the initial call, the victim was whispering to the operator that the male subject was still in the apartment with her and had been holding a knife to her throat. Officer Corral also testified that putting a knife to someone's throat could cause serious bodily injury and that the knife in this case was a deadly weapon.
It is not necessary for the State to introduce the knife into evidence to meet its burden of proof. See Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App.1982); Aleman v. State, 795 S.W.2d 332, 335 (Tex.App.-- Amarillo 1990, no pet.). The testimony clearly established that Appellant used a knife in committing the assault. Since the State need not introduce the knife into evidence to meet its burden, Appellant cannot show that the result would have been different if trial counsel would have objected and the knife would have been excluded. Thus, even if trial counsel erred by failing to object to the admission of the knife, Appellant has failed to show how he was prejudiced by the admission. Accordingly, Appellant has failed to met the second prong of Strickland, that but for counsel's unprofessional errors, a different outcome would have resulted. Issue No. Two is overruled in its entirety.
C. Right of Confrontation
In Issue No. Three, Appellant argues that the trial court erred by disallowing proper examination of witnesses. Specifically, he alleges that the trial court erred in failing to allow the defense to elicit prior inconsistent statements by N.R. and to expose N.R.'s bias and motive to bring false charges against Appellant.
The right of confrontation, arising from the Confrontation Clause of the United States Constitution, secures one's right of cross-examination. See U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (right of confrontation exists for state as well as federal criminal defendants). The constitutional right of confrontation is violated when appropriate cross-examination is limited. See Hurd v. State, 725 S.W.2d 249, 252 (Tex.Crim.App.1987). The scope of appropriate cross- examination is necessarily broad. A defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias or interest for the witness to testify. See Lewis v. State, 815 S.W.2d 560, 565 (Tex.Crim.App.1991). A violation of the Confrontation Clause is subject to harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986).
Appellant first complains that the trial court erred in limiting his examination of N.R., but he cites a portion of the record where Victor Corral, a defense witness, is being examined by defense counsel. The following exchange occurred:
Defense: She [N.R.] tried to make a phone call after he [Appellant] asked her to leave? Corral: Yes. And she called a boy named Mateo so he could come and hit [Appellant]. State: Objection. Hearsay. Defense: Your Honor, it is not being offered for the truth of what she said to Mateo. Court: Then what is it being offered for then? Defense: For the intent of why she was making a phone call. Court: That's the truth in the matter asserted. You're telling me that that's not being offered for the truth of the matter asserted, but you're showing an intent to make a phone call to a guy to beat him up. Defense: It is also being offered in rebuttal to the testimony-- Court: Sustained. Stricken from the record. State: Thank you, Judge. Defense: Are you stating that she asked someone to come and hit Mateo [sic]? ) Court: That has been sustained as a hearsay objection, Mr. Needham. I don't care how you ask it. Defense: It is admission against interest, Your Honor. If she was asking someone to commit a crime-- Court: My ruling has been made. Defense: I would like to proffer the evidence, Your Honor, that the witness would testify that the complaining witness requested that another person come to commit an assault on the defendant in this matter and that that evidence would show her intent to injure the defendant at any cost. Court: Proceed with your questioning, Mr. Needham.
The above does not reflect a confrontation issue as the victim is not being questioned and the witness is not being cross-examined. As noted, Corral was a witness for the defense. The trial court did not err in ruling the testimony was hearsay. This portion of Issue No. Three is overruled.
Appellant next complains that the trial court erred in limiting his examination of N.R. with regards to the phone calls she made. N .R. was asked to describe the three phone calls. Counsel for the State objected on relevancy grounds and when asked what the relevance was, trial counsel replied, "Credibility, Your Honor. Consistency." The trial court sustained the objection.
Appellant now asserts that he was trying to establish that N.R. had sufficient time to use the phone without difficulty, that she was not in fear of Appellant because she remained at the apartment and made phone calls, and that she called Self in efforts to have him assault Appellant. However, Appellant cites no authority to support his contention that because N.R. had time to use the phone, she was not in fear of Appellant and that this somehow negates the fact that an assault occurred or that this establishes that N.R. is not a credible witness. Further, he cites no authority that supports his claim that the trial court's ruling gives rise to a violation of the Confrontation Clause.
Moreover, the complaint on appeal must match the complaint raised in the trial court. See Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App.), cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991). Since Appellant's complaint on appeal does not comport with his trial objection, Appellant has waived his contention on appeal. Issue No. Three is overruled in its entirety.
D. Motion for New Trial
In Issue No. Four, Appellant asserts that the trial court erred by failing to grant a new trial. The grant or denial of a motion for new trial is a matter entirely within the trial court's discretion. See State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993); Appleman v. State, 531 S.W.2d 806, 810 (Tex .Crim.App.1975). An abuse of discretion occurs when the trial court's decision is so clearly wrong as to lie outside the zone within which reasonable persons disagree. See Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993); Helton v. State, 909 S.W.2d 298, 301 (Tex.App.--Beaumont 1995, pet. ref'd).
Appellant argues that the trial court abused its discretion in failing to grant a new trial because the location of a material witness, Self, was not disclosed to the defense. The only two cases Appellant cites as authority for this issue are distinguishable. Appellant fails to demonstrate how Self was a material witness, since the affidavit Self provided clearly stated that he was not present at the apartment. Self stated that he talked to N.R. on the phone, but could not hear what N.R. and Appellant were arguing about. He also stated that the phone was disconnected. Further, Appellant fails to demonstrate how the outcome would have been different if Self was allowed to testify. We find that the trial court did not abuse its discretion in failing to grant Appellant's motion for new trial based on the grounds asserted.
Having overruled each of Appellant's issues on review, we affirm the judgment of the trial court.