11th Court of Appeals
Eastland, Texas
Opinion
Danny Ray Garza
Appellant
Vs. No. 11-02-00318-CR B Appeal from Taylor County
State of Texas
Appellee
The jury found that Danny Ray Garza, appellant, intentionally and knowingly entered a habitation owned by Virginia Flatow, without her consent, and committed aggravated assault upon her by using and exhibiting a deadly weapon, a handgun, and that he intentionally and knowingly threatened Flatow with imminent bodily injury by the use of the handgun. The jury assessed punishment at confinement for 50 years and a fine of $10,000. We affirm.
Ruth Jennings was an elderly blind lady; Virginia Flatow was her daughter. Prior to Jennings=s death, appellant was her personal caretaker as well as the caretaker of various properties that she owned in Abilene. Flatow inherited the properties upon Jennings=s death, and appellant continued to take care of the properties for a time. At the time of this offense, Flatow lived in Houston, but she had come to Abilene to check on her properties. On the night of the offense, appellant used a key and entered the apartment where Flatow was staying while in Abilene. Appellant had been the caretaker of this property and had previously lived in the property. Appellant also had lived in other properties owned by Jennings that were later owned by Flatow. When he entered the apartment, appellant had been drinking, was angry, and had a gun. There is a dispute in the testimony as to whether appellant pointed the pistol at Flatow. Flatow testified that appellant pointed the pistol at her and told her to put down the phone; she was attempting to notify the police. There is also a dispute as to whether appellant threatened Flatow. Flatow testified that, even though appellant might not have verbally threatened her, she was threatened by his actions. At some point in time, appellant and Flatow left the apartment and walked outside. Flatow asked appellant for the handgun, and he gave it to her. She locked it in the trunk of her car. Appellant was subsequently arrested.
Appellant presents four points of error. He first argues that the trial court erred when it allowed the State to introduce evidence of an extraneous offense. Appellant filed a pretrial motion in which he sought to require the State to give notice of any extraneous offenses which it intended to introduce at trial. See TEX.R.EVID. 404(b); TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3 (Vernon 1981 & Supp. 2003). In response to the motion, the State notified appellant of five offenses which it intended to offer into evidence.
The first case involved a charge of arson that resulted in the destruction of one of the properties owned by Flatow. Appellant admitted that he put a candle in one room of the house and turned on the gas in another. He later returned to the property, and it was “completely gone.” The arson case was pending at the time of the trial of this cause.
The next case about which the State notified appellant involved the death of Jennings. The notice alleged that appellant knowingly and intentionally caused Jennings=s death in September 2000. This allegation of murder had been investigated by Harris County authorities, but no charges had been filed as of the time of the trial in this case, October 2002.
The State also notified appellant of its intent to offer a public intoxication offense which occurred on the same date as the arson, as well as two other offenses against Flatow=s property: burglary of a building and criminal mischief.
Appellant did not testify at the guilt/innocence phase of the trial, but he did testify during the punishment phase of the trial. Appellant admitted that he had a drinking problem and had been arrested a “bunch” for public intoxication and that he had been arrested for driving while intoxicated. Appellant also admitted to all of the offenses contained in the State=s notice except Jennings=s murder. During cross-examination of appellant, the State asked about the circumstances surrounding Jennings=s death. The record shows that, at the time of her death, Jennings and appellant had taken a trip to Houston to visit Flatow. Although Jennings was able to stand, her usual method for moving about, when she was alone, was by crawling. The State sought to show, by appellant=s testimony, that, while appellant was taking out the trash and smoking a cigarette, Jennings crawled down a hallway to a stairway and fell down the stairs to her death. Appellant first raised the objection that, because the State could not prove the commission of the offense of murder, the evidence was not admissible. The State explained that it was not attempting to prove a murder but rather a lesser included offense of murder involving “negligent supervision...criminally negligent homicide.” Appellant objected that, because the State had not given notice of this lesser included offense, the evidence was not admissible. The State also argued that the evidence would rebut appellant=s testimony of his good traits as Jennings=s caretaker. It is appellant=s claim that the evidence does not rebut any of his testimony. When he summed up his objections to the trial court, appellant objected that the State had failed to give notice of intent to introduce evidence regarding “negligent supervision.” The trial court overruled that objection because: “It=s my understanding that the State=s not going to elicit this testimony in an attempt to prove an extraneous offense, so I=ll overrule the objection.” Appellant responded: “Secondly, Your Honor, we would objectCI believe that first one=s [the objection stated by appellant] all there is, Your Honor.”
We are limited in our consideration to the offer made, the objection made, and the ruling actually made by the trial court. During his testimony, appellant testified that he started working for Jennings after responding to an advertisement in the newspaper. His first job was to cut and trim grass. He began to do other jobs for Jennings on various properties which she owned. Finally, appellant moved into one of the vacant properties owned by Jennings and continued to take care of the properties and began to take care of Jennings also. Jennings had a caretaker with her in the mornings, and appellant would telephone Jennings in the afternoons because she “was alone for the rest of the day.” Appellant further testified that, on one occasion, Jennings was at home and accidentally locked herself out of the bathroom and that she asked him to come and unlock it. When appellant went to Jennings=s home and unlocked the door, Jennings fired the caretaker and hired appellant as her caretaker. Appellant testified that he made sure Jennings was fed “breakfast, lunch, you know, snack, dinner.” Later, Jennings moved into the house where appellant was living. According to appellant, he gave up his room and moved to another so that Jennings would have larger quarters. He continued to feed her and to care for her as well as her properties. At some point in time, appellant refurbished and moved into another of the properties. At times, Jennings would become scared and would call appellant at 2:00 or 3:00 in the morning; he would leave his house, get Jennings, and bring her back to his house. She would sleep on the couch while he slept in a chair. Appellant let Jennings sleep on the couch because it was the best place to sleep in his house. Appellant also testified that it was his understanding that one of Jennings=s properties was to be his after Jennings=s death; however, he did not get the property.
While the State could have offered evidence of the circumstances of Jennings=s death for other reasons, it chose to offer the evidence in rebuttal of appellant=s testimony about the quality of his caretaking abilities. That is the basis upon which the trial court admitted the testimony. Even though we believe that the notice of Jennings=s murder would include notice of all of the circumstances surrounding the murder, as well as any purported lesser included offenses, such notice was not necessary. The State is not required to give notice of intent to offer extraneous offenses under Rule 404(b) or under TEX. CODE CRIM. PRO. ANN. art. 37.07 (Vernon1981 & Supp. 2003) when the evidence is offered in rebuttal and not during the State=s case-in-chief. Jaubert v. State, 74 S.W.3d 1 (Tex.Cr.App.2002). We overrule appellant=s first point of error.
In his second point of error, appellant argues that the trial court erred when it allowed the State to make an improper jury argument. Flatow testified during guilt/innocence that “[appellant] pointed the gun at me and said, ‘Drop the phone,’ and I dropped it.” Appellant argues that, when she was giving her statement to the police officer who investigated the offense, Flatow said that appellant pointed the pistol at her but that he did not threaten her. Appellant argues that, during the State=s jury argument, the prosecutor pointed the gun at or in the direction of each juror=s head and repeated the words: “[P]ut down the phone.” It is appellant=s position that such an argument was improper because there was no testimony that appellant ever pointed the gun at Flatow=s head. However, appellant did not object to the argument and has waived his complaint. TEX.R.APP.P. 33.1(a); Cockrell v. State, 933 S.W.2d 73 (Tex.Cr.App.1996), cert. den=d, 520 U.S. 1173 (1997). We overrule appellant=s second point of error.
Appellant=s last two points of error concern his claim that he received ineffective assistance of counsel. Because appellant=s fourth point of error is related to the jury argument issue which we have just discussed, we will address that point before we discuss appellant=s third point of error.
In a review of an ineffective assistance of counsel claim, we must first decide whether appellant has shown that the representation fell below an objective standard of reasonableness; and, if so, we must determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986). The burden of proving ineffective assistance of counsel rests with appellant. Moore v. State, 694 S.W.2d 528, 531 (Tex.Cr.App.1985).
Before we will sustain an ineffective assistance of counsel claim related to a failure to object, appellant must show that the trial court would have erred had it overruled such an objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Cr.App.1996). Because trial counsel is not required to object to matters which are not objectionable, we will first determine whether the argument was improper. Proper jury argument falls into four categories: (1) a summation of the evidence; (2) reasonable deductions from the evidence admitted for consideration by the jury; (3) a rejoinder to argument by opposing counsel; and (4) a plea for law enforcement. Cantu v. State, 842 S.W.2d 667, 690 (Tex.Cr.App.1992), cert. den=d, 509 U.S. 926 (1993).
As we have stated, a contested issue in this case was whether appellant actually threatened Flatow. Flatow testified that, when she told the investigating officer that appellant had not threatened her, she was referring to verbal threats. However, she testified further that she felt threatened by appellant=s actions; he pointed the gun at her. Flatow did not state to which part of her body appellant pointed the gun. We believe that the argument was proper as a reasonable deduction from the evidence admitted before the jury. Flatow=s testimony that appellant pointed the gun at her supported the argument made by the State as equally as it would an argument that appellant pointed the gun at any other part of the body. Appellant has failed to meet his burden of proving ineffective assistance of counsel. Because the argument was not objectionable, appellant=s trial counsel was not ineffective for failing to object to it. See Vaughn v. State, supra. Further, there is a strong presumption that trial counsel=s actions were sound trial strategy. Strickland v. Washington, supra. Appellant has not overcome that presumption. Appellant=s fourth point of error is overruled.
In his third point of error, appellant complains that his trial counsel was ineffective in that appellant was not allowed to testify during the guilt/innocence phase of the trial. Appellant rightly points out that the final decision of whether to testify belongs to a defendant. Sapata v. State, 574 S.W.2d 770 (Tex.Cr.App.1978). However, the only proof in the record pertaining to appellant=s claim that he was not allowed to testify were statements in a pro se motion for new trial and in another motion for new trial which his appellate counsel filed. Those statements were mere assertions that appellant was not allowed to testify during the guilt/innocence phase of the trial. The record is silent as to whether appellant had asked to testify, as to whether he and his trial counsel had discussed his testifying, and, if so, as to what extent those discussions had taken place. Appellant has failed to meet his burden under the first prong of Strickland that his trial counsel=s representation fell below an objective standard of reasonableness. Strickland v. Washington, supra. Even if appellant had met his burden under the first prong of Strickland, he would fail on the second prong which requires that there exist a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, supra. Again, whether appellant had threatened Flatow was an element of the offense and an issue which appellant contested in his cross-examination of the State=s witnesses and in argument. Further, appellant gave a statement that he did not threaten Flatow. In his brief, appellant asserts that there is a reasonable probability that the outcome of the case would have been different had he been allowed to testify and explain his written statement and in rebuttal of Flatow=s testimony. However, during the guilt/innocence phase of the trial, appellant=s trial counsel was able to read to the jury the claims which appellant made in his statement relative to whether he threatened Flatow:
I was mad when I went over there to talk to Virginia [Flatow], so I took my...pistol with me when I got over there. I wouldn=t have hurt her with the gun and she knows that. I know that it was stupid for me to take the gun with me like I did.
When I got there, I used the key to get into the house. I went inside and I talked to Virginia. I ended up giving her the gun after we talked, and then I left. I never threatened her with the gun.
Even if trial counsel=s actions fell below an objective standard of reasonableness, which we do not find, there is no reasonable probability that the outcome of the case would have been different if appellant had testified. Appellant=s third point of error is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
September 25, 2003 JUSTICE
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.