IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 5, 2001
______________________________STEVEN DEWAYNE EVANS,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 38,589-B; HON. SAMUEL C. KISER, PRESIDING _______________________________
Before QUINN, REAVIS AND JOHNSON, J.J.
Steven Dewayne Evans (appellant) appeals his conviction for murder. His three points of error concern a purported denial of his Sixth Amendment right to confront his accuser, the legal and factual sufficiency of the evidence, and the effectiveness of his counsel. We affirm.
Background
On October 25, 1999, a party was held at Independence Hall in Amarillo, Texas. Between 200 to 300 people attended same. During the event, an argument erupted between Keith Austin (Austin) and the mother of his two children, Shannon Hicks (Hicks). The cause of the argument was Hicks' dancing with appellant's brother, Bernard, with whom she also had a child. In short, Austin was jealous. Thereafter, appellant's sister, Brenda, approached and exchanged words with Austin. Following this, appellant and Austin themselves "had words," which words escalated into a physical altercation between the two. Security personnel intervened and escorted the combatants to the parking lot.
A number of people were present in the parking lot at the time. Furthermore, Austin's friend, Edward, wanted to go over and confront appellant. Austin advised him against it and went back inside the dance hall to retrieve his jacket. Moments passed before multiple gunshots were heard coming from the parking area in front of the Hall. The police were notified. Upon their arrival, more gunfire was heard. Investigation then revealed that Edward had been shot. He later died at the scene.
The State indicted appellant for murder. A jury of his peers convicted him of the accusation. Issue One: Confrontation Clause
Appellant initially argues that the trial court denied him his Sixth Amendment right to confront his accuser. This allegedly occurred when he attempted to impeach the State's sole eyewitness, Artrail Tillmon, via a "prior conviction." According to the record, Tillmon had been indicted for intentionally and knowingly threatening a female with bodily injury by use of a deadly weapon. Upon his plea of guilty, the adjudication of his guilt was deferred. Moreover, the status of the prosecution remained the same at the time Tillmon was called to testify against appellant. (1) Appellant told the court below that he "want[ed] to use this prior conviction to impeach [Tillmon], especially since he's got [sic] on the stand now and portrayed himself as a prison officer, and an officer." So too did appellant allege that he had "a right to use this, since [Tillmon] got a criminal offense to impeach him with." The trial court disagreed and prevented him from using the "conviction" because it neither involved a felony nor a crime of moral turpitude. We overrule the issue.
As evinced by the circumstances described above, appellant sought to utilize the "prior conviction" to generally impeach Tillmon's credibility via Texas Rule of Evidence 609. (2) Furthermore, the trial court undoubtedly construed the effort as such because it concluded that the evidence did not comply with Rule 609. Nowhere did appellant mention his constitutional right to confront his accusers. Nor did he endeavor to gain admittance of the evidence (despite Rule 609) by arguing that it purportedly evinced a vulnerable relationship between Tillmon and the State and, therefore, constituted evidence of bias of interest. (3)
Instead, his ground was limited to admission via Rule 609 and for the purposes contemplated by that rule.
Yet, on appeal, appellant argues that the trial court erred because the evidence was admissible to show bias or interest despite Rule 609. In other words, appellant attempts to invoke the vulnerable relationship theory before us without having mentioned it below. Having failed to mention it below as a ground supporting admission of the evidence, he waived it for appellate purposes. Tex. R. App. P. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that the grounds supporting an objection uttered below must comport with the grounds asserted on appeal).
Issue Two: Insufficiency of the Evidence
In his second point of error, appellant alleges that the jury's verdict lacked legally and factually sufficient evidentiary support. We disagree and overrule the point.
Standard of Review
Rather than reiterate the well-settled standards of review applicable to claims of legal and factual insufficiency, we cite the litigants to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); King v. State, 29 S.W.3d 556 (Tex. Crim. App.2000); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App.1996); and Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.1988) for explanations of same.
Application of Standard
Below, Tillmon testified that he saw appellant hold a revolver sideways, point same at Edward, and shoot. Furthermore, Edward died of gun shot wounds. This constitutes some evidence upon which a rational jury could conclude beyond a reasonable doubt that appellant intentionally and knowingly caused the death of Edward by shooting him with a deadly weapon, as charged in the indictment. Thus, legally sufficient evidence existed to support the jury's verdict of guilty.
That the evidence of guilt was not free of contradiction and that the credibility of witnesses may have been subject to question does not require us to conclude that the verdict was factually insupportable. Those circumstances merely resurrected issues for the jury to resolve. And, based upon our review of the entire record, we cannot say that the verdict was clearly wrong or manifestly unjust.
Issue Three: Ineffective Assistance of Counsel
Finally, appellant alleges that his trial counsel was ineffective because counsel failed to 1) make an offer of proof sufficient to satisfy the predicate for admitting the "prior conviction" discussed under the first issue and 2) object to the State's final argument during the guilt-innocence phase.
Standard of Review
The standard of review applicable to claims of ineffective counsel is well-settled and adequately explained in Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000), cert. denied, __U.S.__, 121 S. Ct. 2196, 149 L. Ed. 2d 1027 (2001), Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999), Beck v. State, 976 S.W.2d 265, 266 (Tex.App.--Amarillo 1998, pet. ref'd), and Rodriguez v. State, 955 S.W.2d 171, 176-77 (Tex. App.-Amarillo 1997, no pet.). We need not reiterate it.
Application of Standard
Proper Predicate
At the time of trial, precedent existed holding that evidence of a deferred adjudication was not admissible to show vulnerability to State influence as a possible bias or motive to lie. Hoyos v. State, 951 S.W.2d 503, 508 (Tex. App.-Houston [14th Dist.] 1997), aff'd 982 S.W.2d 419 (Tex. Crim. App. 1998) quoting, Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992), cert. denied, 507 U.S. 1035 (1993). This precedent was not nullified until the rendition of Maxwell v. State, 48 S.W.3d 196 (Tex. Crim. App. 2001) in June of 2001, some two years after trial below. Given this, we cannot fault trial counsel for omitting to assert a legal argument which contradicted authority existing at the time of trial. See Vaughn v. State, 931 S.W.2d 564 (Tex. Crim. App. 1996). At the very least, counsel's omission may have been based on reasonable trial tactic, i.e. the desire to eschew invoking untenable legal argument and thereby alienating both the court and jury.
No Objection to Closing Argument
During its closing argument in the guilt / innocence phase of the trial, the prosecution stated:
I will tell you the truth. Without any equivocation, without even one ounce of waiting, I will tell you, you believe Artrail Tillmon. If you don't you vote not guilty and you can set this murderer back on the streets.
This comment purportedly evinced an attempt by the prosecutor (through his own unsworn testimony) to bolster the credibility of Tillmon. As such it was allegedly objectionable, and because trial counsel did not object, he was ineffective, according to appellant. We disagree.
First, assuming the comment was objectionable, we note that the decision to object to particular statements uttered during closing argument is frequently a matter of legitimate trial strategy. Hubbard v. State, 770 S.W.2d 31, 45 (Tex. App.-Dallas 1989, writ ref'd). Thus, evidence of counsel's strategy, if any, is crucial to determining whether he was ineffective. Furthermore, nothing of record indicates why counsel at bar withheld objection. Without such an explanation, we cannot say that the record before us sufficiently rebuts the strong presumption that counsel exercised reasonable professional judgment. Thompson v. State, 9 S.W.3d at 808; Beck v. State, supra.
Second, and again assuming the comment was objectionable, nowhere does appellant attempt to illustrate "there [was] a reasonable probability that, but for counsel's [one supposed] unprofessional error[], the result of the proceeding would have been different." Tong v. State, 25 S.W.3d at 712. Nor, after reviewing the entire record, can we say that such a probability existed.
Accordingly, we affirm the judgment of the trial court.
Per Curiam
Publish.
1. Given that appellant was granted deferred adjudication, the supposed conviction was not one. That
is, because he had been granted deferred adjudication, he had not been convicted of the offense. So, the
characterization of the charge as a "prior conviction" was inaccurate. However, we use that moniker here
for the sake to clarity.
2. The rule states that "for purposes of attacking the credibility of a witness," a litigant may tender
evidence that the witness had been "convicted of a crime . . . if elicited from the witness or established by
public record but only if the crime was a felony or involved moral turpitude . . . ." Tex. R. Evid 3.
the system in order to prevent the exercise of his visitation rights with his daughter rather than the victim’s testimony that appellant placed her hand on his penis, we cannot say that the jury was not justified in its verdict. In essence, the jury simply chose to believe a 10 year old rather than appellant. Thus, we conclude that appellant’s contention that a jury was not justified in believing the victim’s testimony does not have the persuasive force that appellant believes it does. See Sims, 99 S.W.3d at 603. We overrule appellant’s challenge to the factual sufficiency. We overrule appellant’s first issue.
Ineffective Assistance of Counsel
When confronted with an ineffective assistance of counsel claim, we apply the two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (adopting Strickland as applicable standard under the Texas Constitution).
Under the first prong of the Strickland test, an appellant must show that counsel's performance was "deficient." Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. To be successful in this regard, an appellant "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Under the second prong, an appellant must show that the deficient performance prejudiced the defense. Id. at 687. The appropriate standard for judging prejudice requires an appellant to "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." Id. at 694. Appellant must prove both prongs of Strickland by a preponderance of the evidence in order to prevail. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000); McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App. 1992).
In this matter, appellant contends that his counsel was ineffective because his counsel argued for probation when it was not available as an option from the judge upon conviction. Indecency with a child by sexual contact is a 3g offense. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(1)(C) (Vernon Supp. 2009). Therefore, appellant was not eligible for judge ordered community supervision upon his conviction. Id. Thus, under the first prong of Strickland, we concluded that appellant has demonstrated that his representation was deficient because we cannot say that counsel’s representation meets an objective standard of reasonableness. See Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005) (When no reasonable trial strategy can justify trial counsel’s conduct, counsel’s performance falls below an objective standard of reasonableness as a matter of law).
We next review counsel’s representation under the second prong. In judging the prejudice, appellant must show by a preponderance of the evidence “that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.” See Strickland, 466 U.S. at 687. Here, appellant argues that “had counsel properly urged that the evidence warranted a sentence of something less than the maximum, the trial court might well have been persuaded to assess just that. Instead counsel argued for community supervision, which no ‘reasonable competent attorney would have engaged in for any reason.’” Further appellant contends in his brief that “[c]ounsel wasted his closing argument in this regard.” Although we agree that counsel should not have argued for community supervision when it was not available, we fail to see the logic of counsel’s argument or how counsel “wasted his closing argument.” From the record, it appears that neither the prosecutor nor the trial court were cognizant of the fact that community supervision was not an option in this case. Further, assuming that the trial court erroneously believed that community supervision was available, appellant has failed to show how the results of the proceedings would have been different by counsel asking for the minimum available punishment of two years incarceration. There is no evidence from the record that the trial court would have assessed punishment any differently had trial counsel for appellant asked for two years incarceration versus community supervision. Furthermore, the right to effective assistance of counsel does not mean errorless or perfect counsel whose competency of representation is to be judged by hindsight. See Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App. 2006). Counsel’s performance is judged by “the totality of the representation” and “judicial scrutiny of counsel’s performance must be highly deferential” with every effort made to eliminate the distorting effects of hindsight. Id. Appellant has not shown by a preponderance of the evidence that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. We overrule appellant’s second issue.
Reimbursement of court appointed attorney fees
Appellant’s final issue focuses on the assessment of court appointed attorney fees without a determination by the court of appellant’s ability to pay the fees. Appellant contends that under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court must make a determination of whether “a defendant has financial resources to enable him to offset in part or in whole the cost of the legal services provided.” Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009). If convicted, the trial court is to assess the costs of the legal services provided, as court costs, the amount that it finds the defendant is able to pay. Id. This court has previously determined that the record shall contain such determination of appellant’s financial resources in order to uphold the assessment of court appointed attorney fees. See Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.–Amarillo 2008, pet. ref’d). Without evidence to demonstrate appellant’s financial resources to offset the costs of the legal services, the trial court erred in ordering reimbursement of appointed fees. Id. Accordingly, we modify the judgment as follows:
IT IS FURTHER ORDERED that any Fine, Court Costs, Court Appointed Attorney fees, and Time Payment fee (if applicable) as ordered herein be paid as follows:
shall now read:
IT IS FURTHER ORDERED that any Fine, Court Costs, and Time Payment fee (if applicable) as ordered herein be paid as follows:
See id. at 901-902 (citing Slaughter v. State, Nos. 2-04-050-CR, 2-04-051-CR, 2005 WL 183142, at *3-*5 (Tex.App.–Fort Worth Jan. 27, 2005, no pet.) (not designated for publication)) (when trial court imposes an invalid condition in its judgment, the proper remedy is to reform the judgment by deleting the invalid condition).Conclusion
Having overruled appellant’s first two issues but having sustained appellant’s final issue regarding repayment of court appointed attorney fees, we modify the trial court’s judgment, as identified above, and affirm the judgment as modified.
Mackey K. Hancock
Justice
Do not publish.