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NUMBER 13-01-099-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
FRANCISCO GUERRERO LARA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 197th District Court
of Cameron County, Texas.
O P I N I O N
Before Justices Hinojosa, Castillo, and Kennedy[1]
Opinion by Justice Kennedy
In a four-count indictment, appellant was charged with two counts of assault on a public servant, one count of criminal mischief, and one count of attempted escape. He was convicted in all but the first count by a jury. The jury then found that he had previously been convicted of burglary of a habitation and aggravated sexual assault. The jury then assessed his punishment at confinement for eighty-five years in count two, ten years in count three, and twenty years in count four. In addition, the jury assessed a fine of $2,500 in count three.
The facts, according to the State=s evidence, are these. Appellant committed a physical assault upon a woman in a convenience store in Harlingen. The incident was reported to the Harlingen Police Department which answered the call, however, appellant had left the scene before the police arrived. The Harlingen police began a search for appellant armed with a description of him and of his car. Two Harlingen police officers, Officers William Bilokury and Alvaro Garcia, in separate cars, located appellant and tried to stop him, which resulted in a high speed chase. Appellant wrecked his car and fled on foot. Officer Bilokury caught appellant, and appellant resisted detention, which became the subject of the second count of the indictment. The first count charges an assault on a jail official while appellant was in jail.
The appellate brief raises nine points of error. The first three, which we consider together, are:
1. The trial court erred when it denied appellant=s motion for directed verdict on count two of the indictment.
2. There is insufficient evidence to support a conviction on count two of the indictment.
3. There is a material variance between the evidence and the jury charge on aggravated assault of a peace officer.
The alleged error referred to in all three points involves a claimed disparity between the charge in count two of the indictment, and the evidence. The second count charged that appellant caused bodily injury to Officer Bilokury by Ascratching [the officer] on the head.@ Officer Bilokury=s testimony was:
Q Okay. Where was he lashing out at you?
A I guess his best target of opportunity was my face. He was trying to B he was going after my face with his hands.
Q Okay. And describe B where did he strike you?
A He struck me several times in the eyes.
Q Okay. With what?
A With his fingers, just stiff fingers like this, attempting to B it felt like he was actually trying to gouge my eyes out is the sensation I was getting.
Q Okay. And what kind of motions was he making? How would you describe that? Was it a B a
A He wasn=t trying to slap me or push me away. He wasn=t trying to get away from me. He was using basically B trying to attack me, striking me in my eyes with his fingers, and scratching in a poking motion B
Q Okay. Scratching?
A B with both hands. Yes, sir.
MR. HENLEY:
Okay. May the record reflect he was making his hands like cat claws or, I guess, forking them, forking his fingers?
THE COURT:
It will so reflect.
Q BY MR. HENLEY: How many times did he actually scratch and poke your eyes?
A Numerous. I don=t have an exact number.
* * *
A . . . I hit him about three or four times in an attempt to wind him momentarily so I could hopefully get him to stop clawing at my eyes.
Appellant points to inconsistencies in the testimony, including the officer=s testimony on cross-examination which he alleges in his brief to be as follows:
QUESTION: Well, I want to know where you were scratched.
ANSWER: I have my statement and my report here if would like to B it doesn=t say I was B it says he scratched at me.
QUESTION: So he didn=t scratch you?
ANSWER: Say again, sir.
QUESTION: He didn=t scratch you?
ANSWER: I didn=t have any visible scratches. He was scratching at my eyes. Maybe I used the wrong terminology at the time, but he was using his fingertips to scratch at my eyes and push at them.
QUESTION: Did he B so you=re saying he didn=t really create any physical wound on the surface of your skin?
ANSWER: I stopped him before he did it.
We fail to see the variance. The word Ascratching@ is a valid definition of what the testimony showed appellant did. In any event, if any testimony varies from any other testimony, the trier of the fact is the sole judge of the witness=s credibility and can accept or reject any or all of the witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000), the court takes notice of Cain as follows:
Cain was a case heavily dependent upon eye witness testimony, testimony that often times was in direct conflict. Therefore, the evaluation of eye witness credibility and demeanor was crucial to determining the correct verdict, and this is a job best suited to the factfinder.
Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). We overrule points of error one, two, and three.
Points of error four and five state:
4. The State=s comments before the court and the jury regarding plea discussion which are inadmissible deprived appellant of his right to a fair trial.
5. Trial counsel was ineffective when he failed to make the proper objection to the State=s inadmissible statements and therefore deprived [appellant] of a fair trial.
The record shows that at the punishment phase of the trial, the court did not first call for and receive appellant=s plea of Atrue@ or Anot true@ to the allegations in the indictment of prior convictions of appellant. After both sides closed on punishment, and while the parties were working on the charge, the oversight was discovered. After the parties returned to the courtroom, and in the presence of the jury, the State requested permission to reopen. The defendant objected to the procedure, which objection was overruled. Then the State=s attorney, in the presence of the jury, stated:
Of course, this reopening is predicated on the basis that we had previously thought the client was going to plead true, and that not having been done, I ask to reopen.
Appellant cites Rule 410(4) of the Texas Rules of Evidence in support of his argument, which states:
Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions.
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority, in a civil case, that do not result in a plea of guilty or that result in a plea of guilty later withdrawn, or in a criminal case, that do not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.
Tex. R. Evid. 410(4).
First, we note that section (4) of Rule 410 refers to Astatements,@ in a criminal case, that do not result in a Aplea of guilty@ or Anolo contendere.@ No mention is made of statements made that do not result in a plea of Atrue@ to the enhancement portion of the indictment. Here, there was no reference made by the prosecution to any statement B the only reference made was to the prosecutor=s mistaken belief that appellant would plead Atrue.@ Rule 410(4) is of no help to appellant.
We next consider whether the making of the statement constituted prosecutorial misconduct. We hold that the jury=s knowing that a plea bargain discussion or discussions were held can only prejudice a defendant where the issue is Adid he do it?@ Common sense tells us, and a juror, that a person who tries to cut a deal is probably guilty. The remark was made after the jury had found appellant guilty. The only matter left to be decided was what punishment to assess. If it was error for the prosecution to imply that a plea bargain was attempted on the question of prior convictions, no harm was done appellant at the punishment phase of the trial. Likewise, because no reversible error occurred, any failure by trial counsel to object[2] would not satisfy the second part of the Strickland test[3] which requires a showing that, but for counsel=s unprofessional errors, a different result would have resulted. We overrule points of error four and five.
Points of error six and seven are:
6. The trial court erred when she allowed the State to reopen during the punishment phase so the State could properly arraign appellant.
7. Trial counsel was rendered ineffective when he failed to object to the State using evidence admitted prior to the reading of the enhancement paragraphs and not reintroduced by the State.
Appellant summarizes his argument in behalf of point six as:
When the State was allowed to reopen, the State failed to reintroduce the evidence from the punishment phase prior to the State closing and reopening, therefore that evidence was not properly before the [jury] for consideration during punishment deliberations. Trial counsel failed to object to the evidence.
He cites Welch v. State, 645 S.W.2d 284 (Tex. Crim. App. 1983) and Dill v. State, 697 S.W.2d 702 (Tex. App. B Corpus Christi 1985, writ ref=d), to hold that once the defendant is arraigned, the defendant should request that all testimony heard prior to the arraignment be struck. Appellant then argues that if the court denies counsel=s request, or if the State fails to re-introduce, the trial will be reversed. Because the trial defense counsel failed to do this, he argues, trial counsel was rendered ineffective.
We hold that if there was error by the trial court in allowing the jury to consider evidence introduced before the reading of the enhancement paragraphs and defendant=s plea thereon, it was waived by trial counsel=s not objecting. We overrule point six and consider point seven, i.e., did the choice to not object meet the criteria established by Strickland v. Washington, 466 U.S. 668 (1984)? These criteria require, generally, that in order for the reversal of a conviction to be ordered, appellant must show: (1) that counsel=s representation fell below an objective standard of reasonableness, and, (2) there is a reasonable probability that, but for counsel=s unprofessional errors, the result would have been different. Hernandez v. State, 726 S.W.2d 55 (Tex. Crim. App. 1986). Appellant argues that had trial counsel requested the court to strike the evidence the jury heard prior to the arraignment and further had the court refused to do so, then such refusal would have been reversible error to appellant=s obvious benefit. He cites this Court=s opinion in Dill in support of his argument. In Dill, the trial court did, in fact, decline to instruct the jury to disregard the testimony heard before the arraignment on punishment. This was held to be error. In the case before us, we can only guess what the court=s ruling would have been had such a request been made. The showing by appellant that the court would have ruled incorrectly is not present, therefore, he is unable to convince us that the result would have been different. We overrule points of error six and seven.
Points of error eight and nine allege inflammatory and prejudicial remarks and prosecutorial misconduct in the State=s final argument during the punishment phase of the trial. The remarks were said to compare appellant with Adolph Hitler and Charles Manson. The remarks were:
This man B thank you. Your Honor. This man may have been capable of kindness on some days, but that=s like saying Adolph Hitler provided for his family or that Charles Manson sometimes smiled or that on some days you can pet a junkyard dog.
The remarks obviously were in reply to defense counsel=s reference, in his argument, to a witness=s testimony that, Ashe said that most of the relationship with the family was that he was a good husband and a good father.@ We do not read the statement to compare appellant to two evil men, rather, we read it only to say that all persons have good and bad days. It was said in response to an argument of opposing counsel which is one of the four well-recognized proper jury arguments.[4] Lone v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991), cert. denied, 505 U.S.1224 (1992). There is no error. We overrule points of error eight and nine and AFFIRM the judgment of the trial court.
NOAH KENNEDY
Retired Justice
Concurring Opinion by Justice Castillo.
Do not publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 1st day of August, 2002.
[1]Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).
[2]Actually, trial counsel said to the court: AI think in the issue here, Your Honor, that is precisely the reason why the defendant=s right to a fair trial has been prejudiced, and the statement here is prosecutorial misconduct. I ask that it not be allowed in this court.@ The court replied: AIt will be denied. You will be allowed to reopen.@
[3]Strickland v. Washington, 466 U.S. 669 (1984).
[4]Summary of the evidence, reasonable deduction from the evidence, in response to argument of opposing counsel, plea for law enforcement.