Affirmed and Memorandum Opinion filed August 12, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00282-CR
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CEDRIC ELLIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 278th District Court
Walker County, Texas
Trial Court Cause No. 20,809-C
MEMORANDUM OPINION
Appellant, Cedric Ellis, was charged by indictment with murder. He entered a plea of not guilty, but a jury convicted him as charged in the indictment and sentenced him to 99 years= imprisonment. On appeal, appellant contends (1) the trial court erred in denying his motion for continuance; (2) he received ineffective assistance of counsel; (3) an incompetent witness testified; (4) the trial court failed to include a no-adverse-inference instruction in the punishment charge; and (5) the trial court erred in admitting autopsy photographs of the victim. We affirm.
On June 26, 2000, Huntsville Police answered a call at Ridgewood West Apartments. When police arrived, appellant=s mother answered the door and informed the officers that children were in the apartment. The officers ordered her to take the children and leave the apartment, which she did. The officers stood at the doorway and saw the body of Leslie Bibbs, appellant=s wife, on the living room floor. One officer spotted appellant near the bathroom, pointing a gun to his temple and chin. Moments later, appellant retreated to the bathroom and closed the room. At that point, one officer ran to the victim and pulled her body out of the apartment. Appellant thereafter surrendered himself to police.
Motion for Continuance
In his first and second issues, appellant argues the trial court abused its discretion when it denied his pro se request for a continuance. Appellant claims he needed a continuance because his counsel promised but failed to: (1) hire an investigator; (2) seek counseling for appellant; and (3) have appellant evaluated as promised. A ruling on a motion for continuance will only be reversed for a clear abuse of discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). To establish an abuse of discretion in denying a motion for continuance, a defendant must show he was actually prejudiced by the denial of his motion. Id.
On the first day of trial, after the venire panel was dismissed for a shuffle, appellant asked the trial court for a continuance to obtain another attorney. Appellant alleged his attorney failed to address issues until the last minute, and thus, the attorney failed to represent appellant to his fullest ability. Specifically, appellant said his counsel failed to obtain essential witnesses but after the trial court questioned him extensively on the issue, he admitted none of those alleged witnesses saw the murder. Appellant never provided a list of those alleged witnesses. Subsequently, the trial court denied the motion. Appellant proceeded with his original counsel and throughout the trial failed to call any witnesses other than himself.
Although appellant alleges his counsel inadequately represented him, he failed to establish any specific prejudice to his cause arising from the trial court=s failure to grant his motion to continue the trial. See Janecka, 937 S.W.2d at 468. Accordingly, appellant=s first and second issues are overruled.
Ineffective Assistance of Counsel
In his third issue, appellant contends he received ineffective assistance of counsel because his counsel failed to: (1) conduct an adequate voir dire examination; (2) advise appellant that his statement would be contrary to the physical and scientific evidence; (3) object to the voluntariness of appellant=s consent to search his apartment; (4) object to the State=s argument during the guilt/innocence and punishment phases; and (5) object to the court=s punishment charge that failed to contain a no-adverse-inference instruction. He also contends his counsel pursued a trial strategy contrary to the evidence. We find, however, that appellant failed to meet the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 688B93 (1984).
Under Strickland, appellant must demonstrate (1) counsel=s performance was deficient and not reasonably effective and (2) the deficient performance prejudiced the defense. Id. Essentially, appellant must show his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding could have been different. Id. at 693; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).
Judicial scrutiny of counsel=s performance must be highly deferential, and we are to indulge a strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, to rebut this presumption, appellant must show, by a preponderance of the evidence, why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). If the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient or speculate about the reasons behind trial counsel=s actions. Jackson, 877 S.W.2d at 771.
If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial, or his claim fails. McFarland, 928 S.W.2d at 500.
Appellant fails to provide this Court with any evidence to affirmatively demonstrate the ineffectiveness of his trial counsel. He did not file a motion for new trial, and the record contains no evidence of the reasoning behind his trial counsel=s actions in failing to take the approach appellant suggested above. Thus, appellant has failed to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy. Additionally, appellant has not demonstrated his trial counsel=s performance prejudiced his defense. Appellant=s third issue is overruled.
Child Witness
In his fourth issue, appellant contends the trial court erred in finding Tyler Ellis, his son, (who was five-years-old at the time of trial) competent to testify. A witness is presumed competent to testify. Tex. R. Evid. 601(a); Dufrene v. State, 853 S.W.2d 86, 88 (Tex. App.CHouston [14th Dist.] pet. ref=d, 1993). A child is competent to testify unless it appears the child does not possess sufficient intellect to relate the transaction about which he will testify. Dufrene, 853 S.W.2d at 88. There is no minimum age at which the child witness is competent; and inconsistencies in the child=s testimony, alone, do not establish incompetence to testify. Long v. State, 770 S.W.2d 27, 29 (Tex. App.CHouston [14th Dist.] 1989), rev=d on other grounds, 800 S.W.2d 545 (Tex. Crim. App. 1990). A child no longer needs to understand the Aobligation of the oath,@ but must understand the obligation to be truthful. Dufrene, 853 S.W.2d at 88.
The child testified to his age, where he lived, and where he went to school. He knew he once lived with both his parents, and at the time of trial lived with his Ananna.@ He did say he did not have a father, which he clarified by identifying appellant as his father, but not any more. The child also knew the difference between the truth and a lie. He said it would be a lie if he said his name was AGeorge Brown,@ or if he said he wearing white shoes when he had on black shoes.
In reviewing the child=s direct testimony, we must consider: (1) the competency of the child to observe intelligently the events in question at the time of their occurrence; (2) the capacity of the child to recollect the events; and the capacity of the child to narrate the events. Dufrene, 853 S.W.2d at 88B9. The child=s testimony was consistent with other evidence presented by the State. He testified: (1) the incident occurred at night at the family=s apartment; (2) appellant got the gun from one of his friends; (3) appellant shot the victim in the head and neck while she was on the couch; (4) police came to the apartment and picked up the gun and put it in a bag; and (5) he went to his granny=s house after the shooting.
Sometimes, however, the child struggled to answer questions, and his testimony contained incorrect observations. The victim had seven gunshot wounds instead of the three that the child recalled. The child could not always remember when and where he met the prosecutor and defense counsel or whom he had told his story to. He mentioned appellant had two guns, but then clarified that appellant originally had two guns but then threw one down before he shot the victim.
In reviewing the child=s testimony, we find the child was competent to recollect and narrate the events in question. Although his testimony does contain some confusing answers, that does not, in itself, make him an incompetent witness. See Dufrene, 853 S.W.2d at 89. Appellant=s fourth issue is overruled.
Jury Instruction
In his fifth issue, appellant argues he suffered harm when the punishment charge failed to contain a no-adverse-inference instruction on his failure to testify. Although appellant testified during the guilt/innocence stage of the trial, he chose not to testify during the punishment phase. He failed to request the instruction, and he did not object to its omission.
Upon a timely request, a defendant who does not testify during the punishment phase is entitled to an instruction that the jury is not to draw any adverse inference from his failure to testify. Beathard v. State, 767 S.W.2d 423, 432 (Tex. Crim. App. 1989). A defendant waives that right by failing to request the instruction or object to its omission. See Brown v. State, 617 S.W.2d 234, 238 (Tex. Crim. App. 1981); Calderon v. State, 950 S.W.2d 121, 132 (Tex. App.CEl Paso 1997, pet. ref=d). Accordingly, appellant has preserved nothing for review. Id. Appellant=s fifth issue is overruled.
Autopsy Photographs
In his sixth issue, appellant argues the trial court erred in admitting autopsy photographs of the victim because their prejudicial effect substantially outweighed their probative value. Under Rule 403, an admissible photograph must have some probative value, and that value must not be substantially outweighed by its inflammatory nature. Tex. R. Evid. 403; Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998). We review a trial court=s ruling in admitting autopsy photographs under an abuse of discretion standard. Wyatt v. State, 23 S.W.2d 18, 29 (Tex. Crim. App. 2000). Autopsy photographs are admissible, unless they depict mutilation of the victim caused by the autopsy process. Harris v. State, 661 S.W.2d 106, 108 (Tex. Crim. App. 1983). However, a court does not abuse its discretion by admitting autopsy photographs that help illustrate and clarify a medical examiner=s testimony. Id.; Drew v. State, 76 S.W.3d 436, 452 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).
The trial court admitted autopsy evidence during the testimony of Dr. Jeffery Bernard, the chief medical examiner for Dallas County and the director of the Southwestern Institute of Forensic Sciences. Appellant alleges two of the autopsy photographs were inadmissible: one depicts the right side of the victim=s head and the other shows the inside of her skull. During his testimony, Bernard used the photographs to explain that two wounds in the victim=s head were so close together that when they entered her skull they shared a common boundary. In other words, the victim had two separate entrance wounds in her scalp but once the bullets entered her skull, Bernard could no longer tell which bullet entered the victim=s brain and which one entered her eye. Because the photographs aided Bernard in his testimony, the court did not err in admitting them. See Harris, 661 S.W.2d at 108. Accordingly, appellant=s sixth issue is overruled.
The judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed August 12, 2003.
Panel consists of Chief Justice Brister and Justices Hudson and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).