11th Court of Appeals
Eastland, Texas
Opinion
Larry Smith
Appellant
Vs. No. 11-03-00216-CR -- Appeal from Harris County
State of Texas
Appellee
Larry Smith appeals his conviction by a jury of the offense of bail jumping B failure to appear. The jury assessed his punishment at confinement for 5 years in the Texas Department of Criminal Justice, Institutional Division, and assessed a $2,500 fine. He contends in three issues that (1) the evidence is legally and factually insufficient to support his conviction; (2) he was denied the effective assistance of counsel; and (3) he was denied a fair trial by prosecutorial misconduct. We affirm.
Smith urges in issue one that the evidence is legally and factually insufficient to support his conviction. In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict. Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex.Cr.App.2000); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Cr.App.1992). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Cr.App.), cert. den=d, 522 U.S. 844 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
In order to determine if the evidence is factually sufficient, we must review all of the evi-dence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Cr.App. April 21, 2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App.2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). In performing this review, we are to give due deference to the fact finder=s determinations. Johnson v. State, 23 S.W.3d 1, 8-9 (Tex.Cr.App.2000); Clewis v. State, supra at 136. Consequently, we may find the evidence factually insufficient only where necessary to prevent manifest injustice. Johnson v. State, supra at 9, 12; Cain v. State, supra at 407.
Lee Hampton, a bail bondsman, identified a bail bond executed by Smith in Cause No. 0893146. The form indicated that Smith was to report to the 179th District Court of Harris County. Hampton stated that his office gives a courtesy call to all defendants, to the number provided by them, the day before every court appearance. He testified that, if a defendant does not appear, the trial court issues a warrant for his or her arrest. He said that he received word that Smith did not appear as required. He indicated that he was not aware of the date upon which Smith failed to appear. Hampton also stated that the judgment forfeiting the bond was signed on February 21, 2002, and that an arrest warrant was issued for Smith for his failure to appear in court on February 19, 2002. Hampton acknowledged that he did not specifically remember getting a call concerning Smith not appearing on February 4, A1999@ (sic).
Deborah Binford testified that she is a district clerk in felony court for the Harris County District Clerk=s Office. She identified a docket sheet for Cause No. 0893146 in which Smith was the defendant. She said that the docket sheet indicated the defendant was to appear on February 19, 2002. She stated that the docket sheet reflected that on that date there was a motion to withdraw by Smith=s attorney and a forfeiture of Smith=s bail bond. She testified that a bond forfeiture occurs when a bailiff calls the defendant=s name at the door and the defendant does not answer. She said that the docket sheet reflects that the bailiff called Smith=s name at the door but that he did not appear. Binford testified that, if Smith had answered the call, they would have either continued the case at that time or reset it to a later date. Binford also identified an agreed setting for February 19, 2002, signed by Smith and his attorney. Binford acknowledged that she did not personally know whether Smith appeared in court on February 19, 2002, or whether the bailiff actually called his name at the door.
Craig William Uhran testified that he has been a criminal defense attorney for 27 years. He said that he remembered representing Smith. When asked if he saw Smith in the 179th District Court on February 19, 2002, Uhran stated: AI believe I did. I don=t know if he was inside the court, but I believe I saw him on the floor, on the 8th floor.@ He also said: AAnd I think in fact he probably was in the court.@ He concluded by indicating that, to the best of his recollection, Smith was actually in court on that particular date. Uhran acknowledged that, when he gives a defendant a reset form, he states the date the defendant is next to appear. He also acknowledged that Smith was neither with him nor present in court when he presented his motion to withdraw to the court. He also conceded that generally, had Smith been there, he would have been standing with him in front of the judge when he presented the motion to withdraw. He said that it would be unusual, if Smith had been present, to approach the judge and withdraw without the defendant being present in front of the judge also. Uhran further acknowledged that there was no reset form signed on February 19, 2002. Uhran stated that, when he saw Smith in court, he told Smith to stay in court until he got there, but Smith apparently did not. Uhran said that he believed that, if Smith had stayed in court, even after he withdrew as his attorney, he would have been given a reset form with a new date to come back to court with a new attorney.
As we understand Smith=s argument, it is that the evidence is insufficient because his attor-ney believed that he had seen him either in the courtroom or on the floor of the courthouse where the courtroom was located and that this presence complied with his requirement under the terms of the bail bond because the term Adischarged by due course of law@ was not defined in the court=s instructions.
The bail bond requires that the defendant is to make Ahis personal appearanceYfor any and all subsequent proceedings that may be had relative to said chargeYand there remain from day to day and term to term of said courts, until discharged by due course of law.@ The jury was not required to believe Uhran=s testimony that he had seen Smith somewhere near the court on the day in question. Even if it did, the evidence presented is sufficient to show that he did not appear that day. The evidence also showed that his case was ongoing. There is no evidence that Smith had in any way been discharged from the charges against him or absolved from responsibility under the bail bond. In fact, the bail bond was forfeited for his failure to appear. We hold that the evidence is legally and factually sufficient to support Smith=s conviction. We overrule issue one.
Smith insists in issue two that he was denied the effective assistance of counsel. He lists 20 bases for his complaint. We apply a two-pronged test to ineffective-assistance-of-counsel claims. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Cr.App.1999). First, appellant must show that his counsel=s performance was deficient; second, appellant must show that the deficient performance prejudiced the defense. Strickland v. Washington, supra at 687.
In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, supra at 813. The issue is whether counsel=s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. Strickland v. Washington, supra at 688-89. A[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@ Strickland v. Washington, supra at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, supra at 814. Our scrutiny of counsel=s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland v. Washington, supra at 689.
The second prong of Strickland requires a showing that counsel=s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland v. Washington, supra at 686-87. In other words, appellant must show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Strickland v. Washington, supra at 697.
Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel=s conduct was reasonable and professional. Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App.2002). Our record does not support Smith=s complaints on appeal. Consequently, the record on direct appeal is not sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that his conduct was reasonable and professional. We overrule issue two.
Smith insists in issue three that he was denied a fair trial by prosecutorial conduct during the trial. He refers to arguments made outside the record, improper misstatements of the law and definitions, and comments on his silence. It appears that Smith is challenging the State=s comments during closing arguments. However, no objections were raised at trial, and Smith has forfeited his right to complain about such issues in this appeal. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex.Cr.App.2002). We overrule issue three.
The judgment of the trial court is affirmed.
PER CURIAM
October 7, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Wright, J., and
McCall, J., and Hill, S.J.[1]
[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.