Lawrence Douglas Steamer v. State of Texas

Lawrence Douglas Steamer v. State of Texas

IN THE

TENTH COURT OF APPEALS

No. 10-00-212-CR

     LAWRENCE DOUGLAS STEAMER,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 23rd District Court

Brazoria County, Texas

Trial Court # 36532

                                                                                                                                                                                                                          

O P I N I O N

                                                                                                                

      Appellant Steamer appeals his conviction for Aggravated Assault with a Deadly Weapon, for which he was sentenced to 12 years in the Texas Department of Criminal Justice - Institutional Division.

      Appellant was indicted in a two count indictment for Aggravated Assault with a Deadly Weapon, a knife. Count One alleged Appellant, on November 10, 1998, threatened Michael Lee Harris with imminent bodily injury, using and exhibiting a deadly weapon, a knife. Count Two alleged Appellant, on November 10, 1998, threatened Taisha Townsend with imminent bodily injury, using and exhibiting a deadly weapon, a knife.

      A jury found Appellant guilty of Aggravated Assault with a Deadly Weapon as charged in Count One; found Appellant not guilty of Aggravated Assault with a Deadly Weapon as charged in Count Two, but found Appellant guilty of the lesser included offense of assault.

      The jury assessed Appellant twelve years in the TDCJ-ID for Count One, and one year in the County Jail and a $2,000. fine for Count Two.

      Appellant, in one issue, contends the evidence factually insufficient to support his conviction in Count One for Aggravated Assault with a Deadly Weapon where: 1) the State’s witnesses conflict as to whether Appellant ever displayed a knife; 2) Appellant testified he never displayed a knife; and 3) the jury’s verdict as to the first and second counts of the indictment conflict as to whether Appellant displayed a knife.

      Three witnesses testified for the State, and Appellant testified in his own behalf.

      Michael Lee Harris testified he lived in the Meadows Apartments in Freeport, Brazoria County. On November 10, 1998, he was living with his wife, his wife’s cousin, Arlin Hector, and Arlin’s girlfriend, Taisha Townsend. At about 6:30 p.m., Michael, Arlin and Taisha walked out to Michael’s car. Taisha got in the car. Appellant, who was nearby, opened the car door, tried to jerk Taisha out of the car and began hitting her with his fists. Appellant then got in the car and began to hit Taisha again. Michael attempted to get Appellant out of the car. Appellant then swung at Michael with a knife. Michael jumped back to avoid being cut. Michael definitely saw the knife. Michael was aware that Appellant had formerly dated Taisha. Appellant told Michael that this was none of his business and if he didn’t get back, he would kill him. Michael called the police on his cell phone. Appellant then left in his truck.

      Arlin Hector testified that on November 10, 1998, he was living with Michael and Letha Harris, and Taisha at the Meadows Apartments. Around 6:30 p.m., he, Michael and Taisha were walking out to Michael’s car to go to Michael’s cousin’s home when he saw Appellant. Taisha got in the car and Appellant jumped in the car and started hitting her. Michael pulled Appellant out of the car, and Appellant said if he caught Taisha, he would kill her. Arlin stated that he never actually saw Appellant with a knife. Arlin was aware that Taisha and Appellant used to date. Arlin testified he was currently in jail and was on felony probation for selling drugs. He stated that if Appellant had been holding a knife he probably would have seen it.

      Officer Anthony Standley testified that at about 6:30 p.m. on November 10, 1998, he was dispatched to the Meadows Apartments in Freeport. He spoke with Taisha Townsend. She was excited and had scratch marks on her face and neck. Taisha told him that Appellant had got into the car she was in and hit her in the face and head with his fists. He testified that she stated that Appellant had pointed the blade of a knife at her. He further testified that a knife was capable of causing death or serious bodily injury.

      Appellant was the only witness in his defense. He testifed that Taisha had told him that he was the father of her nine month old child, and then told him he was not the father. She then moved in with Arlin Hector. He admitted going to her apartment on November 10, 1998; admitted to getting into the car with her and hitting her. He testified that he did not have an open knife in his hand and did not threaten anyone with a knife. He stated that Michael’s testimony was reasonably accurate except for the part regarding the knife. He admitted he had felony convictions for dealing drugs, possessing drugs, and the unauthorized use of a vehicle. He admitted striking Taisha in the face and saying he would kill her. He admitted that he had a knife with a two inch blade in his pocket at the time of the attack. He stated that he was currently in the same jail that Arlin Hector was in.

      Appellant claims the evidence factually insufficient to support the conviction under Count One for Aggravated Assault with a Deadly Weapon against Michael Harris. Specifically, he claims there was insufficient evidence of the use of a deadly weapon.

      The standard for review for factual sufficiency is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, and is clearly wrong and manifestly unjust. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The court’s review begins with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). A Court of Appeals is not free to re-weigh the evidence and set aside the verdict because the Court feels that a different verdict is more reasonable. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Nor may a Court of Appeals reverse a decision simply because the Court disagrees with the result. The Court must defer to the findings of the factfinder and may find the evidence factually insufficient only when necessary to prevent manifest injustice. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

      Appellant claims there were inconsistencies in the evidence and therefore the evidence is factually insufficient. This is not the standard. It is unusual if there are not inconsistencies between the witnesses at a trial. A decision is not manifestly unjust merely because the factfinder resolved conflicting views of the evidence in favor of the State. Cain, supra, p. 410.

      Moreover, Arlin did not testify that Appellant did not use or exhibit a knife. He testified that he did not see a knife, and that he thought if appellant had used a knife, he would have seen it.

      Appellant claims there was an inconsistent verdict by the jury in that they found the use or exhibition of a deadly weapon in Count One, but did not in Count Two.

      There was ample evidence of the use and exhibition of a deadly weapon in the assault on Michael Harris alleged in Count One. Michael saw the knife and backed away to keep from getting cut. Appellant admitted he had a knife in his pocket. While the evidence is stronger that Appellant used and exhibited the knife in his assault on Michael, the evidence is not as strong that he used or exhibited the knife in his assault on Taisha. The only evidence here was the hearsay statement of Officer Stanley in which he testified that Taisha told him Appellant had pointed a knife at her. The jury was entitled to believe that Appellant used or exhibited a knife in his assault on Michael but did not do so in his assault on Taisha. There is no conflict in these two findings.

      We hold the evidence factually sufficient to sustain Appellant’s conviction in Count One and overrule Appellant’s issue and all contentions made thereunder. Appellant has not appealed from the jury findings or his conviction in Count Two.

      The judgment is affirmed.

                                                                         FRANK G. McDONALD

                                                                         Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Gray, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed April 11, 2001

Do not publish

o hearsay and conclusory evidence; and (5) failing to object to inconsistencies in a previous order.

To prove ineffective assistance, an appellant must show that: (1) counsel’s performance was deficient; and (2) the defense was prejudiced by counsel’s deficient performance.  See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003).  The appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission.  Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).  There is “a strong presumption that counsel’s conduct fell within a wide range of reasonable representation.”  Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).  “[A]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.”  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

              Although Henderson made a general allegation of ineffective assistance in his untimely motion for new trial, he failed to explain how trial counsel was ineffective.[5]  He attached no evidence to his motion, and the trial court denied the motion without a hearing.  Thus, the record is silent as to any reasons explaining trial counsel’s actions.  We will not speculate as to those reasons.  See Thompson, 9 S.W.3d at 814.  Absent a record revealing trial counsel’s strategy or motivation, Henderson has not defeated the strong presumption that trial counsel’s actions fell within the wide range of reasonable professional assistance.  See id.  His ineffective assistance claim is better raised through an application for a writ of habeas corpus.  See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Bone, 77 S.W.3d at 837 n.30.

              The trial court’s judgment is affirmed.

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed March 5, 2008

Do not publish

[CR25]

 

 

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[1]               To support this claim, Henderson included an affidavit in the appendix to his brief.  The State filed a motion to strike the affidavit because it is not part of the appellate record.  Because we agree, the State’s motion is granted.  See Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App. 2002); see also Ex parte Lekavich, 145 S.W.3d 699, 702 n.2 (Tex. App.—Fort Worth 2004, no pet.).

[2]               The PSI appears to have influenced the trial court’s decision to impose a lighter sentence.  After reviewing the PSI, the trial court stated, “At first I thought even more than 20 years might be appropriate, but after refreshing my memory, there were some extenuating circumstances.”  Henderson argues that it is “ludicrous to conclude that the allegations and comments in the PSI, mostly negative, diminished the sentence.”  Yet, the trial court’s statement seems to suggest otherwise.    

 

[3]               Henderson was sentenced on January 16 and his motion was filed on February 22.  See Tex. R. App. P. 21.4(a) (a motion for new trial must be filed “no later than 30 days after, the date when the trial court imposes or suspends sentence in open court”). 

[4]               Because this case involves two cause numbers, the record contains two separate motions.

[5]               The motion alleges:

 

Attorney for defendant believes that evidence may have been improperly admitted or that the defendant did not receive effective assistance of counsel.  Attorney for defendant believes that the defendant may not have understood the ramifications of his actions and thus certain pleas or actions at the hearings on application to proceed to final adjudication, adjudication, and sentencing were involuntary.