IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 25, 2003
______________________________JOE A. NARVAIS, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2001-438,391; HON. JOHN T. FORBIS, PRESIDING _______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J. (1)
Appellant Joe A. Narvais, Jr., attacks his conviction for the offense of aggravated assault with a deadly weapon by contending he received ineffective assistance of counsel. Counsel was allegedly ineffective because he 1) failed to have the trial court determine whether appellant's statement (or admission to using a handgun during the assault) made to an employee of the Texas Child Protective Services (CPS) was voluntary, 2) failed to object to the testimony of an investigating police officer as hearsay, 3) failed to object to the State calling the complainant as a hostile witness allegedly for the purpose of impeaching her, and 4) was ineffective in light of the cumulative effect of the foregoing errors. We overrule each issue and affirm the judgment.
Background
The victim of the aggravated assault was Susanna Narvais (Susanna), appellant's wife. The two were separated at the time of the assault. Furthermore, on September 12, 2001, Susanna (while holding her child) sat in the back seat of a vehicle talking to a girl friend. Appellant approached the vehicle, opened the back door, entered it, and asked, "[w]hat's up now, bitch?" Susanna replied by asking that he not shoot her. Appellant then exited the vehicle from one side while Susanna and the child exited from the other. At that point, appellant circled the car, grabbed his wife by the throat, held a handgun to her head, struck her in the face with the weapon, and fled. (2) Though Susanna told the police that her husband held a gun to her head when they came to investigate the assault, she recanted that portion of her statement at trial.
Standard of Review
The standard by which we review claims of ineffective assistance is well established. We will not repeat it, but rather cite the parties to Strickland v. Washington, 466 U.S. 668, 687-95, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002), Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999), and Rios v. State, 990 S.W.2d 382 (Tex. App.--Amarillo 1999, no pet.) for its explanation.
Issue One - Failure to Determine Voluntariness of Admission
In his first issue, appellant asks us to determine "whether trial counsel . . . was ineffective by failing to object to or ask for a Jackson v. Denno [sic] hearing when a child protective services employee testified to incriminating facts obtained in violation of the 5th and 6th Amendments of the United States [sic] and Tex.C.Crim.Proc. Sec. 38.22 [sic]." The "incriminating facts" alluded to consisted of appellant admitting that he held a gun to Susanna's head. Furthermore, this admission occurred during an interview between appellant and the CPS employee while the latter was conducting an investigation into the welfare of appellant's children. We overrule the issue for two reasons.
First, the reasons or motives underlying counsel's action appears nowhere in the record. Consequently, appellant failed to rebut the presumption that those actions were reasonable. Thompson v. State, 9 S.W.3d at 814 (holding that the appellant failed to rebut the presumption that counsel's decision was reasonable because the record was silent as to why counsel failed to object to the State's attempt to elicit hearsay).
Second, hearings conducted pursuant to article 38.22 of the Texas Code of Criminal Procedure and Jackson v. Denno (3) are utilized to determine the voluntariness of an accused's admissions or confessions. Yet, before we can say that counsel was deficient for failing to pursue a particular course of conduct, there must be evidence of record indicating that there existed matters beneficial to appellant that was susceptible to discovery through the pursuit. See Melancon v. State, 66 S.W.3d 375, 380 (Tex. App.--Houston [14th Dist.] 2001, no pet.). Indeed, it is clear that counsel need not undertake meaningless acts simply to be effective. See White v. State, 999 S.W.2d 895, 899-900 (Tex. App.-Amarillo 1999, pet. ref'd) (holding that counsel need not object just to object). Moreover, appellant neither contends that his admission to the CPS employee was involuntary nor cites us to evidence suggesting that it was. Without either that contention or evidence, we cannot hold his attorney deficient for omitting to instigate a proceeding that may well have uncovered nothing objectionable.
Issue Two - Failure to Object to HearsayIn his second issue, appellant asks that we determine whether his trial attorney was ineffective "by failing to object to testimony of an investigating officer as hearsay when he discussed an out of court statement made by the victim and two other witnesses." We overrule the issue for the following reason.
The reasons or motives underlying counsel's inaction appear nowhere in the record. Consequently, appellant failed to rebut the presumption that those actions were reasonable. Thompson v. State, 9 S.W.3d at 814 (holding that the appellant failed to rebut the presumption that counsel's decision was reasonable because the record was silent as to why counsel failed to object to the State's attempt to elicit hearsay).
Next, that the failure to object may be founded upon sound trial strategy was exemplified in Ortiz v. State, No. 73-692, 2002 Lexis 185 (Tex. Crim. App. September 25, 2002). There, counsel omitted objection to hearsay uttered by Special Agent Lott. The hearsay involved statements uttered to the agent by two other individuals. Furthermore, the record there, like here, failed to disclose counsel's reasons for remaining silent. In overruling the claim of ineffectiveness, the Court of Criminal Appeals noted that an objection may have compelled the State to introduce the evidence directly through the actual live testimony of the two declarants and, more importantly, counsel may "have believed that such direct evidence would have a more powerful and adverse effect on the jury than the evidence the State was content to offer." Id. at 39. Thus, contrary to appellant's supposition, silence on the part of counsel under circumstances akin to those before us may be founded upon sound trial strategy.
Issue Three - Failure to Object to Impeachment Evidence
In his third issue, appellant asks that we determine whether his trial counsel was ineffective by "failing to object to the prosecution calling a hostile witness [i.e. the victim] . . . to impeach her with otherwise inadmissible hearsay or to object to impeachment material as hearsay and ask for a limiting instruction." We overrule the issue for the following reasons.
First, the reasons or motives underlying counsel's action appear nowhere in the record. Consequently, appellant failed to rebut the presumption that those actions were reasonable. Thompson v. State, 9 S.W.3d at 814 (holding that the appellant failed to rebut the presumption that counsel's decision was reasonable because the record was silent as to why counsel failed to object to the State's attempt to elicit hearsay).
Second, assuming arguendo that the omission exemplified unreasonable conduct, we cannot say that but for it there exists a reasonable probability that the result of the proceeding would have differed. This is so because this evidence was cumulative of other evidence illustrating that appellant utilized a deadly weapon, i.e. the handgun, while assaulting his wife. Again, appellant himself admitted to striking his wife with a handgun. Additionally, that appellant so struck his wife was confirmed by another witness at trial who personally saw the event, and no one questions the admissibility of that witness's testimony. So, given the latter testimony and appellant's own admission which, according to appellant, "solidified the State's case as only a confession can," we cannot say that there exists a reasonable probability that the outcome would have differed had counsel done what appellant says he should have done.
Issue Four - Cumulative Effect of Errors
In his last issue, appellant contends that there is a reasonable probability that the outcome of the trial would have differed without the cumulative effect of the errors addressed in the first three issues. We overrule the issue.
Simply put, appellant did not prove, by a preponderance of the evidence, that his counsel was deficient in any particular respect. Nor did he prove, by the same standard of evidence, that any act or omission about which he complains, individually or cumulatively, affected the outcome of the trial.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't
Code Ann. §75.002 (a)(1) (Vernon Supp. 2003).
2. 3.
” Appellant pled not true to the allegation. The State then tendered evidence illustrating that he had indeed committed the offense. However, reference to the county in which the conviction occurred changed from Dallas to Tarrant in the jury charge. The jury, nonetheless, found the enhancement paragraph to be true. Now appellant argues that because there was no proof that he was convicted in Tarrant County, no evidence supports the finding. We overrule the issue.
We test the legal sufficiency of the evidence via the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and against the allegations contained in a hypothetically correct jury charge. Gollihar v. State, 46 S.W.3d 243, 252 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Moreover, these requirements apply irrespective of whether the appellant attacks the sufficiency of the evidence underlying the current conviction or the establishment of the allegations in an enhancement paragraph. Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000) (stating that Malik’s principles apply equally to the affirmative findings necessary to sustain the imposition of an enhanced punishment).
Next, the hypothetically correct charge at bar would have asked whether the prior offense was committed in Dallas as opposed to Tarrant County. Furthermore, the record is replete with evidence illustrating that the situs of the earlier crime was Dallas County, a fact no one denies. So, upon applying Gollihar and Malik, we cannot but conclude that the finding as to the enhancement paragraph enjoyed the support of legally sufficient evidence. Issue 2 - Testimony of Deputy
Next, appellant questions whether the trial court erred in overruling his Rule 403 objection. That objection was directed at the testimony of a deputy sheriff who purportedly heard appellant state, several months before trial, that if he could make eye contact with the child victim, he would not be found guilty. We overrule the issue.
The decision to admit evidence is reviewed under the standard of abused discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). And, such an abuse occurs only when the decision falls outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (dealing with a Rule 403 objection). Next, Rule 403 of the Texas Rules of Evidence permits the exclusion of relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Here, appellant argues that the evidence in question was prejudicial and had little probative value. Yet, one can reasonably interpret the comment overheard by the deputy as a threat of intimidation directed towards the child victim in effort to prevent her from testifying. It has long been recognized that effort by a defendant to prevent a witness from testifying is generally admissible as conduct showing a consciousness of guilt, which conduct tends to prove commission of the offense. Rodriguez v. State, 577 S.W.2d 491, 492-93 (Tex. Crim. App. 1979). Being evidence of a consciousness of guilt, appellant’s utterance was both relevant and probative, especially since the conviction rested in large part on the testimony of the victim he proposed to intimidate. And, while the statement is prejudicial, it is not unfair. That is, it does not give rise to the type of prejudice contemplated by Rule 403, such as prejudice arising from emotion or bias. Karnes v. State, 127 S.W.3d 184, 191 (Tex. App.–Fort Worth 2003, no pet.). Rather, the chance of harm it posed is no different than the harm posed by any other admissible evidence illustrating guilt. So, after considering it within the framework discussed in Montgomery v. State, supra, we cannot say that the trial court’s decision to admit the statement fell outside the zone of reasonable disagreement.
Issue 3 - Motion for Mistrial
In his last issue, appellant complains of the trial court’s failure to grant his motion for mistrial. That motion was made after the judge revealed to the parties that a juror had approached and informed him that the juror believed he may know someone who may be a witness. In lieu of asking for opportunity to examine the juror in effort to determine whether the relationship would impact his ability to be fair and impartial, appellant simply asked for a mistrial. The latter was denied. We overrule the issue.
Like questions regarding the admission of evidence, those concerning decisions to deny mistrial are reviewed under the standard of abused discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). Furthermore, we note that when a juror withholds material information during voir dire, mistrial may be appropriate. Franklin v. State, 138 S.W.3d 351, 353-54 (Tex. Crim. App. 2004). When the information withheld is immaterial and the record does not show that the defendant was denied an impartial jury or a fair trial, denying mistrial is not error. Decker v. State, 717 S.W.2d 903, 907-08 (Tex. Crim. App. 1986). Additionally, a juror’s mere familiarity with a witness is not necessarily material information. Franklin v. State, 12 S.W.3d 473, 478 (Tex. Crim. App. 2000); Decker v. State, 717 S.W.2d at 907. Its materiality depends upon whether the nature of the relationship carries with it a potential for bias or prejudice sufficient to warrant the juror’s exclusion from the panel. Sypert v. State, 196 S.W.3d 896, 900 (Tex. App.–Texarkana 2006, pet. ref’d).
Here, all we have before us is evidence that a juror recognized someone in the hall outside the courtroom. Missing is evidence illustrating whether the individual actually was a potential witness or merely a spectator. Undoubtedly, that could affect our analysis of the issue. So too do we lack any record developing the extent of the juror’s relationship with that person. That too could influence how we view the impact, if any, of the relationship upon the juror’s deliberations. Again, appellant simply asked for a mistrial. Neither litigant made effort to investigate or develop the situation, according to the record before us. Given this, we cannot say that appellant illustrated the relationship in question was material in any way.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.