IN THE
TENTH COURT OF APPEALS
No. 10-04-00064-CR
No. 10-04-00065-CR
The State of Texas,
Appellant
v.
Christopher Franklin Bohlen,
Appellee
From the County Court at Law
of McLennan County, Texas
Trial Court Nos. 20033963CR1 and 20034295CR1
MEMORANDUM Opinion
This appeal concerns prosecutions for violation of an emergency protective order. See Tex. Penal Code Ann. § 25.07(a) (Vernon Supp. 2004-2005); Tex. Code Crim. Proc. Ann. art. 17.292 (Vernon Supp. 2004-2005). The trial court ordered the complaints quashed and the case dismissed. The State appeals. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp. 2004-2005); State v. Moreno, 807 S.W.2d 327, 334 (Tex. Crim. App. 1991). We reverse.
The State contends that the trial court erred in granting Bohlen’s motions to quash and dismissing the case. The motions contended that the protective order did not contain findings of fact, and thus that the complaints did not show that Bohlen committed an offense. See Tex. Code Crim. Proc. Ann. art. 15.05(2) (Vernon 2005). “‘Show’ as used here does not mean ‘prove.’ Rather, it demands allegations that if true are sufficient to accomplish their purpose, i.e., to constitute the offense charged.” 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 19.23 (2d ed. 2001). The complaints allege that Bohlen violated a certain emergency protective order. The trial court erred in quashing the complaints and thus erred in dismissing the case. We sustain the State’s issues. We reverse the trial court’s orders and remand the cause for further proceedings.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Reversed and remanded
Opinion delivered and filed June 15, 2005
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[CR25]
60;
A jury convicted William Owens, Jr. of the felony offense of aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021(a)(1)(A)(i), (2)(A)(iv) (Vernon Supp. 1998). Owens pled true to two prior felony convictions alleged to enhance his punishment to the level of a habitual offender. The court assessed punishment at 60 years’ confinement in the Texas Department of Criminal Justice, Institutional Division.
Owens filed an appeal to this Court and in an unpublished opinion we found that the appeal was untimely. Owens filed a writ of habeas corpus with the Court of Criminal Appeals and was granted an out-of-time appeal. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 1998). In his first ground, Owens argues that he received ineffective assistance of counsel, and in his second ground he asserts that the evidence is legally and factually insufficient to support the judgment.
FACTUAL BACKGROUND
On June 17th, 1992 at approximately 8:30 p.m., Denice Grantham was driving her car to return some job applications to some prospective employers. As she passed Billy Haynes’ house, Owens stopped her and asked for a ride. Billy Haynes is a cousin of James Anthony, who is married to Grantham’s sister, Theresa. Grantham testified that she had seen Owens at Haynes’ house earlier in the day and assumed he was a friend of his, so she decided to give him a ride. She testified that she and her sister had also encountered Owens at a neighbor’s house that afternoon where a brief conversation took place.
After dropping off the applications, she was driving Owens to a friend’s house when he began putting his hands on her legs. Owens directed her down a dirt road. They approached a trailer house and Grantham got out of the car to let Owens out because the passenger door did not open. At this point, Owens tried to kiss her, and she bit him. He got mad and pulled out a knife and forced her to lean up against the car. He put the knife at her back and told her to lay down on the hood and then he raped her.
After he raped her, she was able to get into the car and drive away. She went to Theresa and James Anthony’s house. She was crying hysterically and told Theresa that she had been raped by the man they had seen earlier at the neighbor’s house. James ran outside with a gun and claimed to see Owens down the street. James fired a shot and the man ran away. The police were called, and they took Grantham to the hospital where a rape examination was performed.
INEFFECTIVE ASSISTANCE
Owens alleges that he received ineffective assistance of counsel which violates the Sixth and Fourteenth Amendments of the United States Constitution and article I, sections 10 and 19 of the Texas Constitution. Owens argues that his counsel was ineffective because he failed to communicate a plea offer to him.
In assessing the effectiveness of counsel during the guilt-innocence phase of trial, we apply the test set forth by the Supreme Court in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Strickland requires us to determine whether: (1) counsel’s performance was deficient; and if so, (2) whether there is a reasonable probability the results would have been different but for counsel’s deficient performance. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The defendant must overcome the presumption that the challenged action might be sound trial strategy. Id. at 689, 2065.
We strongly presume that counsel’s conduct lies within the “wide range of reasonable representation.” McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, __ U.S. __, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997). The accused must overcome this presumption by affirmatively showing that his representation fails the two-part test set forth in Strickland. Generally, we examine the totality of the representation to determine the effectiveness of counsel. Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983).
We acknowledge that the failure of defense counsel to communicate a plea offer to a defendant constitutes ineffective assistance of counsel. Ex parte Wilson, 724 S.W.2d 72, 74-5 (Tex. Crim. App. 1987). However, claims of ineffective assistance must be supported in the record. Johnson v. State, 691 S.W.2d 619, 627 (Tex. Crim. App. 1984). A hearing was held on Owens’ motion for new trial which also alleged that counsel was ineffective because he failed to communicate a plea offer. The court denied the motion for new trial.
At the hearing, the prosecutor testified that at some point during the trial he made a plea offer of twenty-five years. He stated that defense counsel said he would discuss it with his client and after a couple of hours told him that his client did not want to accept the offer. Defense counsel testified that a plea offer of thirty-five years was made and rejected by Owens. Defense counsel said that the offer was reduced to thirty years and then twenty-five years. He testified that he communicated all of the offers to Owens. Owens testified that the last offer he knew about was thirty-five years. According to Owens, defense counsel never communicated the twenty-five-year offer.
We afford almost total deference to a trial court’s determination of the historical facts that the record supports, especially facts based on an evaluation of credibility and demeanor of witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In this case, the credibility of the witnesses is essential in determining whether the plea offer was communicated. We defer to the trial court on the issue of credibility, and because the court denied the motion for new trial, we must conclude that the trial court determined that defense counsel communicated the twenty-five-year plea offer. Thus, counsel’s performance was not deficient. We overrule the first ground.
LEGAL SUFFICIENCY Owens argues in his second ground that the evidence is legally insufficient to support the judgment. In reviewing a claim of legal insufficiency, the court reviews the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim. App. 1996).
Grantham testified that Owens held a knife to her back and forced her onto the hood of her car. He then forcibly raped her without her consent. She escaped and drove to her sister’s house. According to her sister, she was hysterical and she told her that she had been raped by the man they had seen that afternoon at the neighbor’s house. Blake Goertz, an employee of the Texas Department of Public Safety crime lab, analyzed the evidence contained in the rape kit. Goertz detected semen on the swabs contained in the rape kit. He was not able to characterize the blood type of the semen donor because the semen was very diluted.
Based on this evidence, a reasonable juror could find the elements of aggravated sexual assault beyond a reasonable doubt. Thus, the evidence is legally sufficient.
FACTUALLY SUFFICIENCY
Owens also asserts that the evidence is factually insufficient. When presented with a factual insufficiency claim, we discard the prism of the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We reverse “only if [the verdict] is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Id.
All of the evidence in the record related to the contested issue is considered. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Evidence which tends to prove the issue is compared with evidence which tends to disprove the issue. Id. We give appropriate deference to the jury’s decision and do not substitute our judgment for theirs. Clewis, 922 S.W.2d at 135. We do not set aside the “verdict merely because [we] feel that a different result is more reasonable.” Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986)).
As shown above, evidence exists which tends to prove that Owens committed the offense of aggravated sexual assault. Owens offered some evidence which tended to prove that sexual intercourse was consensual. Ethel Scott was identified as the neighbor at whose house Grantham and her sister visited the afternoon of the offense. Scott testified that Grantham came to her porch trying to get some money to get her husband out of jail. According to Scott, Owens told Grantham he had fifty dollars to give her, and Grantham replied that she would be back to pick him up. Grantham testified that her husband was in jail, and she was trying to get a job so she could bail him out.
The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Santellan, 939 S.W.2d at 164. We must give due deference to the jury on these issues. Id. at 166. After reviewing all the evidence, we cannot say the verdict “is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Clewis, 922 S.W.2d at 134. Thus, we conclude that the evidence is factually sufficient to support the judgment. We overrule the second ground.
We affirm the judgment.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis
Justice Cummings and
Justice Vance
Affirmed
Opinion delivered and filed May 13, 1998
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