Opinion issued July 8, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00909-CR
____________
IPALIBO IKETUBOSIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law No. 3
Fort Bend County, Texas
Trial Court Cause No. 97724
MEMORANDUM OPINION
After a bench trial, the trial court found appellant, Ipalibo Iketubosin, guilty of the offense of misdemeanor assault. See Tex. Pen. Code Ann. § 22.01(a), (b) (Vernon Supp. 2004). After having a pre-sentence investigation report prepared, the trial court assessed appellant’s punishment at one year in jail. We determine whether (1) appellant was denied his right to a jury trial, (2) the evidence was legally and factually sufficient to prove that appellant committed assault, (3) appellant received ineffective assistance of counsel, and (4) appellant’s sentence was excessive. We affirm.
Background
On January 6, 2002, appellant entered the bedroom of his brother, the complainant, and took a jar of Vaseline. When the complainant tried to get the Vaseline back, appellant hit the complainant with his fist and with the Vaseline jar. At that point, one of the complainant’s and appellant’s sisters called the police.
After his arrest, appellant waived his right to a jury trial and agreed to be placed on pretrial diversion. When appellant violated the terms of his pretrial-diversion agreement, his case was set for trial.Right to a Jury Trial
In his first point of error, appellant contends that the trial court erred by denying him a jury trial without his having executed a written waiver.
Texas Code of Criminal Procedure Article 1.13(a) provides, in relevant part, that a defendant “shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State.” Tex. Code Crim. Proc. Ann. art. 1.13(a).
Appellant asserts that he never waived his right to a jury trial in open court, prior to his plea, because the pretrial diversion packet, which contained a jury-trial waiver, was admitted during trial, rather than pretrial, and then only for purposes of the record and not as evidence of appellant’s guilt. Appellant also contends that the trial court never determined if the jury-trial waiver was binding. However, article 1.13(a) does not require that the waiver of jury trial be admitted as evidence at trial. Moreover, the trial court would not have proceeded with a bench trial if it had not determined that trial by jury had been waived. See Ryles v. State, 676 S.W.2d 146, 147 (Tex. App.—Houston [14th Dist.] 1984, no pet.). Indeed, the judgment recited that appellant had waived his right to a jury. That recitation is presumed correct in the absence of direct proof of its falsity. Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002). There is no evidence in the record indicating that the recitation was false. Because appellant’s jury-trial waiver was part of the record and was acknowledged in the trial court’s judgment, we hold that the trial court did not err in denying appellant a jury trial.
We overrule appellant’s first point of error.
Legal and Factual Sufficiency
In his fourth point of error, appellant contends that the evidence was legally and factually insufficient to prove that he assaulted the complainant.
A. Legal Sufficiency
In performing a legal-sufficiency analysis, we must view the evidence in the light most favorable to the conviction and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). This standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).
Appellant contends that the State did not sufficiently prove that appellant assaulted the complainant. To prove assault, the State must show that the defendant intentionally, knowingly, or recklessly caused bodily injury to another. See Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2004). The information alleged that appellant intentionally, knowingly, or recklessly caused bodily injury by pushing, choking, and hitting the complainant. The police officer who interviewed the complainant the day of the assault testified that the complainant’s mouth was bloody, his forehead was swollen, and his glasses were broken. The officer further testified that the complainant told him that appellant had chased him down, had gotten him in a headlock, had punched him in the face with his fist, and had hit him in the head with the Vaseline jar. The complainant testified that appellant struck him in the face and that he started bleeding, but that he did not remember whether appellant choked him. Viewing the evidence in the light most favorable to the conviction, any rational trier of fact could have found the essential elements of assault beyond a reasonable doubt. As a result, we hold that the evidence was legally sufficient to support appellant’s conviction for assault.
B. Factual Sufficiency
In reviewing the evidence on factual-sufficiency grounds, all of the evidence must be reviewed neutrally, not in the light most favorable to the prosecution. Johnson, 23 S.W.3d at 6-7. The Court of Criminal Appeals has recently stated:
There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004) (footnote omitted). A proper factual-sufficiency review must include a discussion of the most important evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). In a factual-sufficiency review, the appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).
Appellant contends that he was defending himself from the complainant’s attempts to take back the jar of Vaseline. The complainant testified that, when appellant took the jar out of the complainant’s room, the complainant grabbed appellant from behind in an attempt to take the Vaseline back. The complainant testified that appellant never hit him with his fist, but that appellant elbowed him in the nose and mouth and knocked his glasses off while trying to keep the Vaseline out of the complainant’s reach. The complainant also testified that his forehead could have been swollen because he hit a wall in the hallway while he and appellant fought for the Vaseline.
Conversely, the police officer testified that the complainant told him that appellant had put him in a headlock, had punched him with his fist, and had hit him in the head with the Vaseline jar. Reconciliation of conflicts in the evidence is within the exclusive province of the trier of fact. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the witnesses’ testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Gowens v. State, 995 S.W.2d 787, 789 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). The trial court, as fact finder, could have chosen to believe the police officer’s testimony and to disbelieve some or all of the complainant’s testimony. The testimony that the trial court chose to believe was not too weak to support the finding of guilt beyond a reasonable doubt, and the testimony that the trial court chose not to believe was not so strong that the beyond-a-reaonable-doubt standard could not have been met. Accordingly, we hold that the evidence was factually sufficient to support appellant’s conviction.
We overrule appellant’s fourth point of error.
Ineffective Assistance of Counsel
In his second point of error, appellant contends that his trial counsel was ineffective under the constitutions of the United States and Texas, and under the Texas Code of Criminal Procedure, because counsel failed to assert appellant’s right to a jury trial and to object to the State’s introduction of appellant’s pending bad acts during sentencing. See U.S. Const. amend. VI, XIV; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. arts. 1.05, 1.051 (Vernon Supp. 2004).
The Court of Criminal Appeals has held that the Texas constitutional and statutory provisions concerning ineffective assistance of counsel do not create a standard that is more protective of a defendant’s rights than is the standard set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To establish ineffective assistance of counsel under the Strickland standard, appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for counsel’s deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). The constitutional right to counsel does not mean errorless counsel or counsel whose competency is judged by hindsight. See Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).
Appellant contends that his counsel was ineffective because he did not assert appellant’s right to a jury trial. Because appellant had already waived his right to a jury trial, an objection on that basis would have been frivolous. An attorney’s failure to make a frivolous objection does not constitute ineffective assistance of counsel. See Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d).
Appellant further asserts that his trial counsel was ineffective because, during the punishment phase of the trial, counsel did not object to the State’s presentation of appellant’s bad acts that had occurred prior to and after the assault in this case. A trial court has broad discretion in determining the admissibility of evidence presented at the punishment phase of trial. See Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A trial court may admit evidence deemed relevant to sentencing, including evidence of other crimes or bad acts, regardless of whether the defendant has previously been charged with or finally convicted of the crime or act. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004); Flores v. State, 125 S.W.3d 744, 746 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Therefore, evidence of appellant’s bad acts was properly admissible. A failure to object to admissible evidence does not constitute ineffective assistance of counsel. Cooper, 707 S.W.2d at 689. Appellant thus failed to satisfy his burden under the first prong of Strickland.
We overrule appellant’s second point of error.
Cruel and Unusual Punishment
In his third point of error, appellant asserts that the trial court’s sentence was excessive and disproportionate to the offense and thus constituted cruel and unusual punishment in violation of the Eighth Amendment. See U.S. Const. amend. VIII.
Constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding that appellant waived point of error concerning cruel and unusual punishment by failing to object at trial). Appellant did not object to the severity of his sentence during the trial or in a motion for new trial; appellant thus failed to preserve his complaint for appellate review. See Solis v. State, 945 S.W.2d 300, 301-02 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).
We overrule appellant’s third point of error.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Jennings, and Wilkinson.
Do not publish. Tex. R. App. P. 47.2(b).