Affirmed and Memorandum Opinion filed April 27, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-00896-CR
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ANTONIO ARREDONDO III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 957,451
M E M O R A N D U M O P I N I O N
Appellant, Antonio Arredondo III, appeals his conviction for aggravated assault. In three issues, appellant contends that (1) the evidence is legally and factually insufficient to support his conviction, (2) the trial court erred by refusing to grant a new trial, and (3) appellant was denied effective assistance of counsel. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
On August 1, 2003, a fight broke out at a local bar between appellant and the complainant. The two men had a lengthy history of animosity, and both testified as to their mutual dislike for each other. Appellant=s wife was involved in a romantic relationship with the complainant before she married appellant. The complainant testified that he tried to Awin her [appellant=s wife] back@ after she was married. He also testified that he called appellant=s parole officer on two occasions to report misconduct. After appellant was arrested for assaulting the complainant, appellant=s wife moved in with the complainant because she had Anowhere else to go.@ The complainant testified that appellant=s wife was Akind of [his] girlfriend,@ but appellant=s wife testified that she and the complainant were not romantically involved.
Both appellant and the complainant testified that they Abumped into each other@ at the bar the evening of the offense. However, the two men offered different versions as to who instigated the fight. The complainant testified that appellant hit him in the head with a beer bottle as he was exiting the bar to get cigarettes from his car. Appellant denied striking the complainant with a beer bottle and testified that he and the complainant exchanged words at the entrance to the bar. According to appellant, the complainant struck him first with his fist after appellant said Adon=t get mad at me because you can=t hold a woman.@
A jury found appellant guilty of aggravated assault. Appellant entered a plea of Atrue@ to two enhancement paragraphs for prior felony convictions, and the jury assessed punishment at thirty-three years= imprisonment.
II. Legal and Factual Sufficiency
In his first issue, appellant contends that the evidence is legally and factually insufficient to support his conviction. A person commits aggravated assault if, during the course of committing an assault, he or she uses or exhibits a deadly weapon. Tex. Pen. Code Ann. ' 22.02(a)(2) (Vernon Supp. 2005). A Adeadly weapon@ is Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ Tex. Pen. Code Ann. ' 1.07(a)(17)(B) (Vernon Supp. 2005). Appellant concedes that a beer bottle can be used as a Adeadly weapon,@ but argues there is insufficient evidence to support the jury=s finding that appellant hit the complainant with a beer bottle.
In reviewing the evidence for legal sufficiency, we must view all evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We must resolve any inconsistencies in the testimony in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
In reviewing the evidence for factual sufficiency, we must view all of the evidence in a neutral light, and must set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Evidence may be factually insufficient if (1) the evidence supporting the verdict alone is too weak to justify a finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that it would prevent a reasonable jury from finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484C85 (Tex. Crim. App. 2004).
Here, the complainant testified that appellant hit him twice in the back of the head with what felt like a beer bottle as he stepped outside to get cigarettes. However, the complainant never saw a beer bottle in appellant=s hands. Appellant denied using a beer bottle to hit the complainant and claimed the two men fought with their fists.
A self-described friend of both complainant and appellant testified that as he walked out the door, he did not see anything in appellant=s hands. A police officer testified that the same witness called the police two months after the incident to report that he had seen appellant break a beer bottle over a pool table before he exited the bar. However, at trial, the witness denied making the report.
Two other witnesses, appellant=s wife and her seventeen-year-old daughter from a previous relationship, testified that they saw the fight. Neither witness saw appellant with a beer bottle in his hands as he left the bar or during the course of the ensuing fight. In addition, appellant=s wife testified that the complainant once Asmacked somebody with a beer bottle@ in another fight, and the daughter testified that she saw the complainant attempt to trip appellant at the bar earlier that evening.
A nurse testified that a laceration on the complainant=s ear could be consistent with an injury inflicted by a broken beer bottle. She further testified that medical personnel removed several small pieces of glass from a cut on the complainant=s forehead. However, other testimony indicated that there were rocks and pieces of glass on the ground outside the bar where appellant and complainant fought. There was no evidence to indicate whether the complainant fell during the course of the fight. A police officer testified that he searched the area outside the bar the morning after the offense but did not find any beer bottles or notice any signs of blood.
Viewing the evidence in the light most favorable to the verdict, we find the evidence legally sufficient to support the jury=s finding that appellant hit the complainant with a beer bottle. In the absence of direct evidence, the State may rely on circumstantial evidence to establish the use of a deadly weapon. Webber v. State, 757 S.W.2d 51, 54 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d). A rational jury could find that appellant used a Adeadly weapon@ during the course of an assault when presented with (1) the complainant=s testimony that he was hit with what he thought was a beer bottle, (2) the medical evidence that the complainant=s injury to his ear was consistent with an injury inflicted by a broken beer bottle, and (3) the officer=s testimony that he received a report from a witness that appellant had broken a beer bottle on the pool table immediately before the incident.
Viewing the evidence in a neutral light, we also find the evidence factually sufficient to support the jury=s finding that appellant used a deadly weapon. Although no witnesses testified that they saw appellant with a beer bottle during the fight, none of the witnesses testified that they saw the events leading up to the fight. Further, we must defer to the jury=s determinations involving witness credibility and demeanor. Zuniga, 144 S.W.3d at 481. Here, the jury could have reasonably disbelieved appellant=s testimony that he did not hit the complainant with a beer bottle because his testimony was inconsistent with the medical evidence. Therefore, we cannot conclude that the verdict was contrary to the overwhelming weight of the evidence. Because we find the evidence legally and factually sufficient to support his conviction, we overrule appellant=s first issue.
III. Motion for New Trial
In his second issue, appellant contends that the trial court erred by refusing to grant a new trial based on newly discovered evidence. At the hearing on appellant=s motion for new trial, appellant presented testimony from a witness who saw the fight between appellant and complainant. The witness explained that she and appellant were good friends in high school but had not talked in about two years. She testified that she was in her car in the parking lot of the bar on the night of fight. While she waited for her husband to return from the bathroom, she saw appellant exit the bar, followed by the complainant. The two men appeared to be arguing and that the complainant hit appellant first. She also testified that in the ensuing fist fight, neither appellant nor complainant had a beer bottle or other weapon.
We review the trial court=s ruling on a motion for new trial for abuse of discretion. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). A motion for new trial based on newly discovered evidence is properly granted when the following four-part test is satisfied:
(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial;
(2) the movant=s failure to discover the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and
(4) the new evidence is probably true and will probably bring about a different result on another trial.
Id. at 36B37.
Assuming the evidence was unknown to appellant at the time of his trial, appellant=s motion could have been properly denied for failure to satisfy any one of the remaining three factors. The trial court could have concluded that appellant=s failure to discover a friend who witnessed the fight was due to a lack of due diligence. In addition, the witness=s testimony was cumulative. Other witnesses testified at trial that they did not see either appellant or the complainant with a beer bottle. Moreover, the witness=s testimony is of questionable weight and credibility. The witness is a self-described friend of appellant=s, and her testimony that appellant did not hit the complainant with a beer bottle or other weapon is inconsistent with the medical evidence. The witness=s testimony that the appellant left the bar first is also inconsistent with the testimony of both appellant and the complainant indicating that the complainant was the first to leave the bar. When evidence of questionable weight and credibility is unlikely to bring about a different result upon a new trial, the trial court is within its discretion to deny the motion. See Jones v. State, 711 S.W.2d 35, 37 (Tex. Crim. App. 1986). Accordingly, we conclude that the trial did not abuse its discretion by denying appellant=s motion for new trial. Appellant=s second issue is overruled.
IV. Ineffective Assistance of Counsel
In his third issue, appellant contends that he was denied effective assistance of counsel. In evaluating an ineffective assistance of counsel claim, we apply a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). First, we must determine whether the attorney=s performance was deficient, i.e., that the performance fell below an objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S. at 687C88. If we find the attorney=s performance deficient under the first prong, then we must determine whether the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Id. at 687.
Appellant argues that his attorney=s performance was deficient because he failed to request a jury instruction regarding self-defense. Appellant cites Vasquez v. State, in which the Court of Criminal Appeals held that the failure to request an instruction on the defense of necessity rendered counsel=s performance deficient under the first prong of Strickland. 830 S.W.2d 948, 951 (Tex. Crim. App. 1992). However, in Vasquez, the defendant admitted the acts constituting the elements of the crime and necessity was the only available defense. Id. at 950B51. Here, appellant argued at trial that the State failed to prove beyond a reasonable doubt that he used a beer bottle as a deadly weapon. Appellant did not admit to hitting the complainant with a beer bottle and did not argue at trial that he acted in self-defense. See Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (finding counsel=s performance was not deficient for failure to request a jury instruction on the defense of necessity when the defendant did not admit to the crime but argued instead that he did not have the requisite intent and did not perform the actions as alleged by the State).
There is a strong presumption that an attorney=s performance falls within the range of reasonable assistance. See Strickland, 446 U.S. at 689. Therefore, when there is a possibility that an attorney=s decision could have been the result of objectively reasonable trial strategy and the reasons for the attorney=s conduct do not appear in the record, we must defer to the attorney=s judgment. See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003); Ortiz v. State, 93 S.W.3d 79, 88B89 (Tex. Crim. App. 2002). Here, the attorney=s decision not to argue self-defense in the alternative could have been the result of a strategical decision to focus on a single exculpatory theory. Appellant did not file a motion for new trial, and the record does not contain any evidence indicating the motivation behind the attorney=s decision. Accordingly, appellant has failed to rebut the presumption that his attorney=s conduct fell within the wide range of reasonably professional assistance. Appellant=s third issue is overruled.
The judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed April 27, 2006.
Panel consists of Justices Hudson, Frost, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).