COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
LOUIS DOUGLAS HALLEY, IV., )
) No. 08-01-00088-CR
Appellants, )
) Appeal from the
v. )
) 238th District Court
THE STATE OF TEXAS, )
) of Midland County, Texas
Appellee. )
) (TC# CR-25,708)
)
O P I N I O N
Appellant Louis Douglas Halley, IV plead guilty and was convicted of murder in the first degree. He elected to have punishment assessed by a jury. At the close of a three-day unitary proceeding, the jury sentenced Appellant to life in prison. On appeal, Appellant raises five issues. We affirm the judgment of the trial court.
In the Fall of 1998, Appellant was employed by the Midland Hilton Hotel as a bar supervisor. As part of his job responsibilities, Appellant supervised and worked with Krista Nagel and Johnny Okrasinski. Appellant became friends with Ms. Nagel. The two spent time together outside the workplace and developed a social relationship.
In January 1999, Krista Nagel spent an evening alone with Johnny Okrasinski at his apartment. The two talked and drank wine for a couple of hours. According to Ms. Nagel, Mr. Okrasinski asked her to watch a pornographic video with him and also wanted her to remove her blouse and pose for photographs. At some point in the evening, Ms. Nagel began to feel ill and disoriented. She left Mr. Okrasinski=s apartment and made her way home alone. She had difficulty driving, was disoriented, and later became physically sick. She decided she had probably been drugged. A couple of days later, Ms. Nagel told Appellant about the evening she spent alone with Johnny Okrasinski. In particular, she related to him her fear that Mr. Okrasinski might have drugged her. As a result of this conversation, Appellant later became convinced Ms. Nagel had been raped by Johnny Okrasinski.
According to Appellant=s testimony at trial, Krista Nagel actually told him she had been raped by Mr. Okrasinski. However, Ms. Nagel testified differently. She said she never actually told Appellant she had been raped. Rather, she merely related the other details of the evening. In fact, she testified she had explicitly indicated to Appellant that Mr. Okrasinski had not raped her. Nonetheless, Appellant became increasingly concerned about Ms. Nagel=s welfare as a result of their conversation.
During the Spring of 1999, Appellant took several steps to protect Krista Nagel and punish Johnny Okrasinski. First, he told his supervisor an employee had come forward with a charge of sexual assault against Johnny Okrasinski. As a result of this, the hotel contacted the police about the allegations. Appellant refused to identify Ms. Nagel to the hotel or the police at the time. However, Appellant contacted the local rape crisis center to discuss the situation with a counselor. He even contacted Ms. Nagel=s stepfather and told him of his concerns. After Appellant contacted her family, Ms. Nagel denied she had been raped. She also complained to the hotel management about Appellant=s interference in her life. As a result of these actions, the Hilton asked Appellant to resign in May 1999.
In April 1999, Tiffany Judkins told Appellant about another incident involving Johnny Okrasinski. According to Appellant, Ms. Judkins told him she had also been raped by Mr. Okrasinski. However, Ms. Judkins testified that she had not been raped, but rather she had been Agroped@ and Aviolated.@ Her testimony confirmed she had told Appellant about the incident, but she insisted she had told him she had not been raped. Nonetheless, the conversation between Ms. Judkins and Appellant strengthened Appellant=s belief that Mr. Okrasinski was a dangerous person. He became convinced Johnny Okrasinski was a rapist that needed to be stopped. He grew frustrated that Ms. Nagel refused to tell the police and began telling others that he might harm Johnny Okrasinski.
In June 1999, Appellant began receiving professional mental health counseling through the Centers for Children and Families. He later began receiving psychological counseling from MHMR as well. He was also hospitalized in a psychiatric hospital for a period of time and placed on medication for depression and bipolar disorder. Throughout this period he remained upset about Mr. Okrasinski=s alleged assault on Krista Nagel. Several different witnesses testified that he had threatened to hurt Mr. Okrasinski.
Finally, in January 2000, Appellant drove to Johnny Okrasinski=s place of employment and waited outside by his car in the alley. As Mr. Okrasinski exited the building into the alleyway, Appellant began firing his gun. Mr. Okrasinski took cover behind his van while a number of witnesses from nearby businesses called the police. After a few minutes, Appellant climbed on top of the van and shot Mr. Okrasinski from above. He then jumped to the pavement and shot him two more times as he lay on the ground. Appellant then fled from the alley, passing several businesses before he got back to his car and drove away. The police later tracked Appellant=s parked car to a nearby lot based on witness descriptions. Appellant eventually returned to his car and was arrested. The gun he had used was on the seat of the car and a signed letter of confession was found on his person.
Appellant never denied shooting Johnny Okrasinski. He told the police Mr. Okrasinski was a predator and a serial rapist and he shot him in order to stop him from victimizing other women. Prior to the shooting, Appellant wrote and mailed letters to a number of friends and family members explaining his intent to kill both Johnny Okrasinski and himself. Many of these letters were placed into evidence.
Appellant now raises five issues and numerous sub-issues for review by this Court. Appellant=s claims can be categorized under four general considerations: (1) whether Appellant received ineffective assistance of counsel at trial; (2) whether the trial court allowed improper testimony during the punishment phase of the trial by a court appointed psychiatrist about future dangerousness; (3) whether the trial court improperly denied Appellant=s motion for new trial based on the denial of choice of counsel and ineffective counsel; (4) whether the prosecution made improper comments during opening statements and closing argument.
With his first, third, and fourth issues, Appellant argues he received ineffective assistance of counsel at trial. In particular, he contends his counsel provided inadequate representation based on the following: (1) failure to interview crucial witnesses for use in the mitigation of punishment; (2) failure to object to improper remarks made by the prosecutor; (3) failure to obtain information to use as impeachment evidence against the State=s witnesses; (4) failure to call additional witnesses who were available to testify; (5) failure to interview a witness who could discredit the psychiatrist=s testimony; and (6) failure to object to the psychiatrist=s testimony regarding future dangerousness.
Texas appellate courts review claims of ineffective assistance of counsel according to the
two-part test articulated in Strickland v. Washington.[1] Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). First, a defendant must establish he received deficient assistance from counsel. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). This requires a showing that counsel=s performance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L. Ed. 2d 851 (1997). Second, a defendant must affirmatively prove counsel=s deficient performance prejudiced his defense. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Such prejudice is shown when the defendant establishes there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different. Id.
The burden of proving ineffective assistance by counsel is on the defendant, and must be proved by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). The reviewing court looks to the circumstances of each case and considers the totality of the representation. Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986); Perrero v. State, 990 S.W.2d 896, 899 (Tex.App.--El Paso 1999, pet. ref=d). A strong presumption exists that counsel=s conduct fell within the wide range of reasonable professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); Calderon v. State, 950 S.W.2d 121, 126 (Tex.App.--El Paso 1997, no pet.). As such, the appellate review is highly deferential to trial counsel and absent of the harmful effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984). Moreover, all claims of ineffective assistance must be firmly founded in and affirmatively demonstrated by the record. McFarland, 928 S.W.2d at 500; Perrero, 990 S.W.2d at 899. If the record on appeal is undeveloped and does not adequately reflect the failings of trial counsel, then the ineffective assistance of counsel claim will fail. See Thompson, 9 S.W.3d 808, 813-14.
In the case before us, the Appellant attempted to establish an adequate record of counsel=s deficient assistance through a hearing on a Motion For New Trial. However, because the hearing on the Motion For New Trial was held more than seventy-five days after the sentence was imposed in open court, any evidence adduced at that hearing cannot be considered by this Court on appeal. See Tex.R.App.P. 21.8; Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex.Crim.App. 1987)(orig. proceeding). As a result, Appellant=s claims related to ineffective assistance of counsel are not supported by the record before us. See Thompson, 9 S.W.3d at 813; Perrero, 990 S.W.2d at 899. Because the record before us fails to establish the reasons behind the trial counsels= actions, Appellant has failed to rebut the strong presumption that the actions taken by his trial attorneys fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 814. Appellant=s first and third issues on appeal are overruled. The portion of his fourth issue relating to ineffective assistance of counsel is also overruled.
With his second issue raised, Appellant argues the trial court erred in allowing the psychiatrist, appointed by the court to evaluate his competency, to testify about his future dangerousness as well. In his brief, Appellant asserts he was not informed of his Miranda[2] rights prior to his interview with Dr. Ravi Medi. He contends Dr. Medi=s testimony should have therefore been limited solely to competency and rebuttal of an insanity defense.
During trial, the court appointed psychiatrist, Dr. Medi, was called by the State and questioned as to Appellant=s competency. After a lengthy cross-examination by the State, the doctor was asked on redirect examination, AAnd you have no medical reassurance that there won=t be another victim laying out in that alley in five months if he doesn=t go to prison, do you?@ Dr. Medi responded, AI don=t.@ On re-cross examination, defense counsel had the following exchange with Dr. Medi:
Counsel: Based on your evaluation and interview with Mr. Halley, can you say with any medical certainty that he will commit a violent act again?
Dr. Medi: It=s possible.
Counsel: Just as it=s possible that he may, just as possible as he might, might not, rather?
Dr. Medi: Yes.
Counsel: Fifty fifty?
Dr. Medi: I cannot say 50/50, because he has, and I don=t know about the future.
A criminal defendant does not waive his constitutional rights merely by submitting to a court appointed psychiatrist=s competency examination. Powell v. State, 742 S.W.2d 353, 357-58 (Tex.Crim.App. 1987), vacated and remanded on other grounds, 487 U.S. 1230, 108 S.Ct. 2891, 101 L. Ed. 2d 926 (1988). Federal and State law requires defendants to be given Miranda-type warnings prior to any such examination or interview. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L. Ed. 2d 359 (1981); Wilkens v. State, 847 S.W.2d 547, 552-54 (Tex.Crim.App. 1992). Failure to adequately warn a criminal defendant of such rights may implicate both the Fifth and Sixth Amendments. See Powell v. State, 492 U.S. 680, 685-86, 109 S.Ct. 3146, 3150, 106 L. Ed. 2d 551 (1989).
In this instance, nothing in the record establishes whether or not Appellant received any warnings prior to being interviewed by Dr. Medi. Further, defense counsel did not object to Dr. Medi=s testimony during trial. See Tompkins v. State, 774 S.W.2d 195, 214-15 (Tex.Crim.App. 1987). In Tompkins, the Court of Criminal Appeals found that a Smith error is waived absent a specific objection based on Smith violation at trial. Id. Like the appellant in Tompkins, Appellant has failed to preserve this claim for review. Tex.R.App.P. 33.1(a). Appellant=s second issue is overruled.
With his fourth issue, Appellant contends the trial court erred in not granting a new trial. In particular, he argues it was the court=s duty to grant a new trial based on the cumulative prejudice arising from the denial of his choice of counsel and ineffective assistance by counsel. Because we have already overruled all issues related to ineffective assistance of counsel, we look now solely to Appellant=s claim that he was denied choice of counsel as a basis for granting a new trial.
The record reflects the court held numerous hearings prior to trial regarding Appellant=s dissatisfaction with counsel. Three attorneys had been appointed and dismissed prior to the court=s appointment of John Roosa and Raymond Fivecoat. Appellant consistently had difficulties cooperating with counsel.
A trial court has no duty to search for counsel agreeable to the defendant. Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App. 1990). Additionally, it is within the court=s discretion to determine whether counsel should be allowed to withdraw from a case. King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000). AHowever, the right to counsel may not be manipulated so as to obstruct the judicial process or interfere with the administration of justice.@ Id., quoting Green v. State, 840 S.W.2d 394, 408 (Tex.Crim.App. 1992). Personality conflicts between a defendant and counsel are generally not valid grounds for withdrawal. Solis, 792 S.W.2d at 100.
Here, the court replaced counsel on three different occasions in response to Appellant=s concerns. The trial court=s refusal to remove Mr. Roosa and Mr. Fivecoat was within its sound discretion. King, 29 S.W.3d at 566. Moreover, we review the trial court=s decision to deny a motion for new trial under an abuse of discretion standard as well. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). Finding nothing indicating the court=s decision to deny the motion arbitrary or unreasonable, we overrule Appellant=s fourth issue. See Lewis v. State, 911 S.W.2d 1, 9 (Tex.Crim.App. 1995).
Appellant=s fifth and last issue on appeal deals with improper comments made by the prosecutor during opening statement and closing argument. Appellant contends the State=s comments amount to reversible error. He argues the prosecution improperly stated he went Abar hopping@ after killing Johnny Okrasinski and also referred to him as a Apsycho.@
Arguments made during summation must be limited to four general areas in order to be proper: summation of the evidence; reasonable deductions from the evidence; answer to argument of opposing counsel; and pleas for law enforcement. Cannon v. State, 668 S.W.2d 401, 404 (Tex.Crim.App. 1984); Calderon, 950 S.W.2d at 133. But, even if a prosecutor=s comments are deemed impermissible, the error is not reversible unless, in light of the whole record, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new and harmful facts into the trial. Todd v. State, 598 S.W.2d 286, 297 (Tex.Crim.App. 1980). The comments must be so inflammatory and the effect so prejudicial that a judicial instruction to disregard them would not cure the error. Blessing v. State, 927 S.W.2d 266, 270 (Tex.Crim.App. 1996); Belton v. State, 900 S.W.2d 886, 899 (Tex.App.--El Paso 1995, pet. ref=d). In order to preserve error and the right to complain about improper jury argument on appeal, an attorney must make a timely objection and pursue the objection until they receive an adverse ruling on the record. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); Valencia v. State, 946 S.W.2d 81, 82-3 (Tex.Crim.App. 1997).
Here, Appellant=s counsel failed to preserve error through objection to the statements made by the State. During opening statement, the prosecutor mentioned to the jury that after Appellant shot and killed the victim, he went back to his house, changed clothes, reloaded his gun, and went out Abar hopping or running around.@ Later, in closing argument, the prosecutor told the jury that Appellant went Ato one of the bars around Denny=s and sat around there and drank and visited@ on the day he killed Johnny Okrasinski. In both instances, Defense counsel failed to object to the statements. Likewise, in closing argument, the State made the following comment:
You want to know why Doctor Medi was right on target and you can take it to the bank. Because they didn=t even bring you Doctor Huddleston that=s still treating him to agree with Doctor Medi up here on the stand what a psycho he is. Don=t you think if they thought Huddleston could say one positive thing about an alternative other than a maximum prison sentence, that they would have had Huddleston sitting up there, that they would have had Doctor Carrick sitting up there saying I read Doctor Medi=s report, but I disagree with him on this phase or that phase? [Emphasis added].
Again, no objection whatsoever was lodged by the defense. Failure to object to improper comments waives error on appeal. Cockrell, 933 S.W.2d at 89. As such, Appellant=s claim related to these comments has not been reserved for review. His fifth issue on appeal is overruled.
The judgment of the trial court is affirmed.
July 18, 2002
DAVID WELLINGTON CHEW, Justice
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish)
[1] 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
[2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966).