By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2003 Case Summaries 2002 Case Summaries 2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Counsel not ineffective in criminal trial in failing to object to juvenile record when defendant opened the door by his testimony [Andrews v. State] (03-4-20).
On November 20, 2003, the Eastland Court of Appeals held that defense counsel was not ineffective in failing to object to the use of a juvenile record to impeach the defendant's testimony that he had never been in trouble before.
03-4-20. Andrews v. State, UNPUBLISHED, No. 11-02-00334-CR, 2003 WL 22741663, 2003 Tex.App.Lexis ____ (Tex.App.-Eastland 11/20/03) Texas Juvenile Law (5th Ed. 2000).
Facts: The jury convicted Kenneth Ray Andrews of the offense of aggravated robbery and assessed his punishment at confinement for ten years.
In four points of error, appellant challenges the legal and factual sufficiency of the evidence, the propriety of the photographic lineup procedure, and the effectiveness of trial counsel. In his second and third points, appellant contends that the evidence is legally and factually insufficient to show his identity as one of the two men who committed the offense. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).
The record shows that the complainant was robbed at gunpoint by two men. The men approached the complainant around 10:00 a.m. in the parking lot near the complainant's apartment. Appellant's accomplice, identified as Kevin Oliver, pulled out a black pistol, pointed it at the complainant, and demanded the complainant's keys and wallet. They took the complainant's wallet and his car. During the offense, appellant told Oliver to "shoot him, shoot him man, shoot him." The complainant was afraid that he was going to be shot. Oliver hit the complainant in the eye with something real hard, like the pistol, knocking him to the ground. After the two men left in the complainant's car, the complainant immediately called the police to report the crime. The complainant gave the police a description of his car and of the robbers. He described appellant as a thin black male, approximately 5' 8" tall, with curly hair who was wearing a blue shirt. The complainant admitted being mistaken regarding the presence or lack of facial hair. Approximately 12 hours later, appellant was observed driving the complainant's stolen car. Officers arrested appellant after he attempted to flee in the car and then on foot. The complainant subsequently picked appellant's picture out of a photographic lineup. The complainant also identified appellant in open court as one of the two robbers.
Held: Affirmed.
Opinion Text: In his first point of error, appellant contends that trial counsel was ineffective in several ways, such as: allowing evidence of appellant's juvenile record to be admitted without objection, failing to conduct a thorough investigation prior to trial, failing to subpoena the complainant's wife, and failing to realize the discrepancy in the complainant's initial description of appellant. In order to determine whether appellant's trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986). In order to assess counsel's performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel's perspective at the time. We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508 09 (Tex.Cr.App.1991).
The record does show that the State used appellant's juvenile record to impeach appellant after he volunteered during cross examination that he "had never been in trouble before." Generally, evidence of a juvenile adjudication is not admissible to impeach a witness. TEX.R.EVID. 609(d). A defendant who "opens the door" to otherwise inadmissible evidence risks having that evidence admitted and used against him at trial. Feldman v. State, 71 S.W.3d 738, 755 56 (Tex.Cr.App.2002); see Delk v. State, 855 S.W.2d 700, 704 (Tex.Cr.App.), cert. den'd, 510 U.S. 982, 114 S.Ct. 481, 126 L.Ed.2d 432 (1993). In Feldman, the court upheld an inquiry into the defendant's prior "trouble," including the defendant's prior juvenile arrests. In this case, the evidence was admissible to correct the false impression left by appellant when he volunteered that he had never been in trouble before. Because the evidence was admissible, trial counsel was not ineffective by failing to object. McFarland v. State, 845 S.W.2d 824, 846 (Tex.Cr.App.1992), cert. den'd, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993).
2003 Case Summaries 2002 Case Summaries 2001 Case Summaries 2000 Case Summaries 1999 Case Summaries