Affirmed and Memorandum Opinion on Remand filed January 24, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-01-01185-CR
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SHANTEE D. HAYWARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 890,357
M E M O R A N D U M O P I N I O N O N R E M A N D
Appellant Shantee D. Hayward appeals her conviction for murder. On original submission, appellant complained that the trial court erred in failing to give the lesser-included offense instruction for assault. We reversed the conviction and held that assault is a lesser-included offense of murder under the Texas Code of Criminal Procedure Article 37.09, and that the record contained evidence that if the appellant were guilty, she was guilty only of assault. Hayward v. State, 117 S.W.3d 5, 14 (Tex. App.CHouston [14th Dist.] 2003), rev=d, 158 S.W.3d 476 (Tex. Crim. App. 2005). The Texas Court of Criminal Appeals granted the State=s petition for discretionary review and reversed our decision, holding the trial court did not err in denying appellant=s request because an assault using fists is not a lesser-included offense of murder by stabbing. See Hayward v. State, 158 S.W.3d 476, 478B80 (Tex. Crim. App. 2005). The Court of Criminal Appeals remanded the case back to this court for consideration of appellant=s other issues. Finding no merit in these remaining issues, we affirm.
I. Factual and Procedural Background
Police arrived at the complainant=s apartment after receiving a suspicious‑event call. Two sets of bloody footprints made a short trail leading away from the front door of the apartment. Inside, police found the complainant=s dead body in a hallway near the bathroom. Blood marks on the wall suggested that the complainant=s body was dragged from the living room to the hallway. The complainant had been stabbed over fifty times, and there was blood throughout the apartment. Although several knives and broken glass were scattered on the living‑room floor, there were no fingerprints. A downstairs neighbor told police she had heard a violent fight in the complainant=s apartment about an hour before the police arrived.
Crime Stoppers tips and the complainant=s telephone caller‑identification device led police to appellant, the complainant=s estranged wife. They arrested appellant on an unrelated parole violation after determining that she was driving the same car the neighbor had seen speed away from the murder scene. Appellant initially told police that she did not know her husband=s whereabouts or when she last saw him. However, she later admitted she was at the murder scene and eventually decided to make a videotaped statement about the events surrounding the complainant=s death.
According to her statement, appellant went to the complainant=s apartment with her boyfriend, Marcus Hawkins, early one morning. The purpose of the visit was to ask the complainant for money to buy crack cocaine. Appellant claims she and Hawkins saw a third person, known only as AChop,@ as they were driving toward an open gate at the complainant=s apartment complex. To appellant=s surprise, Chop was also en route to the complainant=s apartment, so he entered the car and rode with Hawkins and appellant until appellant parked the car. According to appellant, she and Chop exited the car together and walked to the complainant=s apartment. Hawkins waited in the car.
Appellant said that when the complainant refused to give her any money, the two of them began to wrestle. Hawkins came upstairs and also began to wrestle with the complainant. According to appellant=s statement, when the complainant escaped from Hawkins, Chop came running out of the kitchen and began stabbing the complainant. Appellant told the police that she and Hawkins fled the scene after the complainant collapsed behind the front door of the apartment. Appellant stated that Chop was the only one who stabbed the complainant. The police used computer databases to search for Chop but were unable to find any such person. They presented appellant with a photo array of men who went by the name AChop,@ but appellant said none of them was the individual she had described to police.
A jury found appellant guilty of murder and assessed punishment at twenty‑five years= confinement in the Institutional Division of the Texas Department of Criminal Justice.
II. Issues Presented
Other than her sixth issue, which has been resolved against her by the Court of Criminal Appeals, appellant asserts the following issues:
(1) Did the trial court abuse its discretion by denying appellant=s oral motion for continuance?
(2) Was trial counsel ineffective in failing to preserve error on the trial court=s denial of appellant=s motion for continuance?
(3) Is the evidence legally sufficient to support appellant=s murder conviction?[1]
(4) Was trial counsel ineffective in failing to object to hearsay testimony?
(5) Did the trial court err in overruling appellant=s objection to an allegedly improper comment made by the State during closing argument?
III. Analysis
A. Did the trial court abuse its discretion by denying appellant=s oral motion for continuance?
In her first issue, appellant argues that the trial court abused its discretion in denying her motion for continuance. We review the trial court=s denial of a motion for continuance for an abuse of discretion. Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1982). All motions for continuance must be sworn and in writing. See Tex. Code Crim. Proc. Ann. art. 29.03, 29.08 (Vernon 1989) (stating that motion for continuance must be in writing and must be sworn); Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999) (holding that unsworn motion for continuance presents nothing for review). There is no abuse of discretion in failing to grant an oral motion for continuance. Hightower v. State, 629 S.W.2d 920, 926 (Tex. Crim. App. 1981). Because the record contains no written motion for continuance, and because we must decide the appeal on the record before us, we assume appellant=s motion for continuance, if any, was oral. See Farris v. State, 712 S.W.2d 512, 514 (Tex. Crim. App. 1986). Finding no abuse of discretion in the denial of an oral motion for continuance, we overrule appellant=s first issue.
B. Was trial counsel ineffective in failing to preserve error on the trial court=s denial of appellant=s motion for continuance?
In her second issue, appellant argues that her trial counsel was ineffective by failing to file a sworn written motion for continuance. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving her claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).
The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy, but the legal standard by which we should determine whether a particular case constitutes such a rarity appears to be somewhat in flux. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) (stating that facts at hand presented a Arare case@ in which ineffective assistance can be found on direct appeal based on a record silent as to counsel=s trial strategy); Andrews, 159 S.W.3d at 104 (Keller, P.J., dissenting) (stating that the Court of Criminal Appeals has been inconsistent in its approaches to ineffective-assistance claims on direct appeal based on a silent record and indicating that the court=s approach in Andrews is inconsistent with its approach in Freeman v. State, 125 S.W.3d 505 (Tex. Crim. App. 2003)). The Court of Criminal Appeals recently indicated that appellate courts should find ineffective assistance as a matter of law if no reasonable trial strategy could justify trial counsel=s conduct, regardless of whether the record adequately reflects trial counsel=s subjective reasons for acting as she did. See Andrews, 159 S.W.3d at 102. Even more recently, the Court of Criminal Appeals returned to an earlier formulation and stated that, absent an opportunity for trial counsel to explain her actions, appellate courts should not find ineffective assistance unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, No. PD-1882-03, __ S.W.3d __, __, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Looking to our high court=s most recent pronouncement on the matter, we follow the legal standard from Goodspeed.
Appellant contends that her trial counsel was ineffective by failing to file a written motion for continuance in order to secure the testimony of a possible eyewitness, Carl Brumfield (allegedly a/k/a AChop@). Appellant=s argument is essentially that her counsel failed to present testimony at trial which, if presented, would have yielded a different outcome.
As stated above, the trial court did not err in denying counsel=s oral motion for a continuance, because all motions for continuance must be in writing and sworn. See Smith, 676 S.W.2d at 385. To establish ineffective assistance based on this failure to file a written motion, appellant must demonstrate that the trial court would have erred in denying a sworn written motion for continuance made during trial. See Vaughn v. State, 888 S.W.2d 62, 74 (Tex. App.CHouston [1st Dist.] 1994), aff=d, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). Although counsel failed to present a proper motion for continuance, this failure does not necessarily constitute ineffective assistance. Counsel=s failure to call witnesses is irrelevant absent a showing that such witnesses were available and appellant would have benefitted from their testimony. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Hoang v. State, 825 S.W.2d 729, 732 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d). Appellant has made no showing that the testimony of Carl Brumfield or any other allegedly absent witness would have benefitted her case, and therefore counsel=s failure to call those witnesses is irrelevant and does not establish ineffective assistance of counsel. See Bernal v. State, 930 S.W.2d 636, 641 (Tex. App.CCorpus Christi 1996, pet. ref=d) (stating A[w]e fail to see how a continuance would have benefitted appellant . . . we hold that the trial counsel=s decision not seek a continuance was not deficient conduct@). Appellant has established neither deficient performance nor prejudice. Accordingly, we overrule appellant=s second issue.
C. Was trial counsel ineffective in failing to object to hearsay testimony?
In her fourth issue, appellant argues that her attorney was ineffective for failing to object to certain hearsay testimony from Officer L.D. Garretson, the crime scene investigator. Appellant argues the testimony involved a critical fact and that her counsel was ineffective by failing to make a hearsay objection to the following italicized testimony:
[Prosecutor]: Now, after that initial conversation with Shantee Hayward, did you later look for what you believed to be the clothes that she wore on the date of the murder?
[Officer Garretson]: Yes, I did.
[Prosecutor]: Can you tell us about that, please.
[Officer Garretson]: I received information from an individual in the county jail who was in the same unit as Shantee Hayward. Speaking to her, she had told me that the clothes were thrown out or discarded at an abandoned location where some abandoned homes or duplexes were on, I believe, it=s West Airport. And she didn=t know the exact location, this is only what she had received from Ms. Hayward, the information.
So I went out to that location and I did find some abandoned duplexes. There were maybe three or four duplexes that still had people living in them, but primarily as an abandoned [sic] was pretty well ran down. And I searched that said area. In fact, I spent a little more than a half a day out there searching, never could locate the clothing.
A Strickland claim must be Afirmly founded in the record@ and Athe record must affirmatively demonstrate@ the meritorious nature of the claim. Goodspeed, 2005 WL 766996, at *2; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (declining to speculate on counsel=s failure to object to hearsay in light of silent record). Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Goodspeed, 2005 WL 766996, at *2. The Atrial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.@ Id.; see also Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed, 2005 WL 766996, at *2. We cannot say that defense counsel=s conduct in this case met that standard. See id. Moreover, isolated failures to object to improper evidence generally do not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Garcia v. State, 106 S.W.3d 854, 860 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d).
Finally, even if counsel=s failure to object did constitute deficient performance, appellant has not demonstrated that she suffered any prejudice by showing that the result of the trial probably would have been different had her trial counsel objected to this alleged hearsay testimony concerning the informant=s remarks. It is hard to imagine, in light of all of the other evidence presented at trial, how appellant would have been prejudiced in this regard when the clothing mentioned was not even found. To prove prejudice based on this conduct, appellant must show by a preponderance of the evidence that there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Appellant has not made this showing. Accordingly, we conclude that no ineffective assistance has been demonstrated, and we overrule appellant=s fourth issue.
D. Did the trial court err in overruling appellant=s objection to an alleged improper comment made by the State during closing argument?
In her fifth issue, appellant contends the State made an improper comment during closing argument and the trial court erred in overruling her objection to this comment.[2] More specifically, appellant argues that the State injected new and harmful facts when it referred to appellant=s recorded statement that was played to the jury.
The complaint pertained to the portion of the State=s closing argument in which the prosecution stated that appellant, Asays in her own statement, >Jonas [the complainant] tried to get out the front door, but we stopped him. He fought us, but we stopped him.=@ Appellant=s actual statement was as follows:
Ms. Hayward: We really couldn=t hold Jonas, you see what I=m saying? We couldn=t hold him. We could not hold Jonas at all, couldn=t hold him. We wasn=t trying to kill him or hurt him or anything. We just wanted him to stop putting his hands on me, that=s allBthat=s all I wanted, that=s all Marcus wanted, for him to stop hurting me, that was it. This was not supposed to happen like this.
Officer Kennedy: I understand. (inadudible). After Jonas comes running back in the living room and Chop is behind him, what happens then?
Ms. Hayward: That=s when he was stabbing him in the B
Officer Kennedy: In the back?
Ms. Hayward: In the back and thenB
Officer Kennedy: What happened then?
Ms. Hayward: That=s when he tried to run to the door.
Officer Kennedy: Who did?
Ms. Hayward: Jonas.
Officer Kennedy: The door was closed?
Ms. Hayward: The front door was closed.
Officer Kennedy: Okay. Then what happened then?
Ms. Hayward: Then Jonas was B hadB [sic] his head was facing the door.
Officer Kennedy: Was he laying down, laid out?
Ms. Hayward: He was on his side and that=s when I sawBthat=s when I really saw the blood on the wall. I said, AWe need to get out of here.@
(emphasis added)
We conclude that the argument in issue was not a reasonable deduction or summation of the evidence. We further conclude that the State=s comment during closing argument injected new facts into the recordCthat appellant stated that she and Hawkins stopped the complainant from getting out the front door. Therefore, the trial court erred in overruling appellant=s objection.
Having found that the argument was improper and the trial court should have sustained appellant=s objection, we now must consider whether this error warrants reversal. See Jones v. State, 38 S.W.3d 793, 796B97 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (holding that while the prosecutor=s comments injected new facts not within the record and the trial court erred in overruling appellant=s objection, the error was harmless); Tucker v. State, 15 S.W.3d 229, 238 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (finding that prosecutor=s statement injecting facts outside the record not so injurious to warrant reversal).
Erroneous rulings related to jury argument are generally treated as nonconstitutional error within the purview of Rule 44.2(b). See Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Rule 44.2(b) requires any error that does not affect substantial rights to be disregarded. See Tex. R. App. P. 44.2(b). In other words, a criminal conviction should not be overturned for nonconstitutional error if the appellate court, after reviewing the record as a whole, has fair assurance that the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The following three factors are used to analyze the harm associated with improper jury argument: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor=s remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). See Mosley, 983 S.W.2d at 259.
We conclude that the prosecutor=s comment did not amount to severe misconduct. While we recognize that it was improper, the comment was an isolated one, and it was not repeated by the State. See Hawkins v. State, 135 S.W.3d 72, 83B85 (Tex. Crim. App. 2004). Next, though the trial court did not give a proper cautionary instruction, the State did not emphasize the improper comment. Compare Jones, 38 S.W.3d at 797B98 (stating in its analysis that in consideration of the second Mosely factor, while the trial court did not make any curative instruction, the state did not emphasize the error) with Peak v. State, 57 S.W.3d 14, 18B21 (Tex. App.CHouston [14th Dist.] 2001, no pet.) (holding that the prosecutor=s repeated misstatements of the law during closing argument was reversible error under Mosley and that the prosecutor compounded the error by exclaiming, AOverruled. That means I=m right! That means I=m right!@). After appellant=s objection was overruled, the State moved on with its argument without any further comment on this issue.
Finally, in considering the third Mosley factor, the certainty of the conviction absent the misconduct, we conclude that the isolated comment in question would have had little effect on a rational jury=s image of appellant and her credibility in light of all of the other evidence against her. In her videotaped statement, appellant admitted she and Hawkins were at the complainant=s apartment when the complainant was murdered. Appellant also stated: (1) when the complainant refused to give appellant money, she and Hawkins wrestled with him; (2) eventually, Hawkins restrained the complainant so appellant could hit him; and (3) when the complainant got away from Hawkins, a third person, Chop emerged from the kitchen and began stabbing the complainant.
Although appellant said Chop was coincidentally present and responsible for the murder, appellant stated she did not recall whether Chop repeatedly stabbed the complainant with a knife or a piece of glass, or what part of the body Chop stabbed. Appellant stated that she and Hawkins did not cover their hands but that Chop may have covered his hands. Appellant said she and Chop were close and indicated that she had known him for approximately two years. Nevertheless, she did not know Chop=s real name, where he lived, with whom he associated, or any establishments he frequented. Police officers were unable to locate Chop after an extensive investigation, and two detectives testified that they believed appellant invented Chop. Detective Garretson also testified that appellant=s gestures indicating her own hitting motions on the videotaped statement were consistent with stabbing motions.
Physical evidence also supported the State=s theory that two people were responsible for the murder because there were two sets of bloody footprints outside the complainant=s apartment. Moreover, although appellant cleaned her car after the murder, there was blood in her car and on Hawkins=s shoes. Appellant said that the shoes and clothes she was wearing when she was arrested were the ones she had worn at the murder scene. However, there was no blood on them, and Detective Garretson testified, based on his training and experience, that they could not be the same clothes because the absence of blood on them was inconsistent with the large amount of blood at the crime scene. Detective Garretson also testified that an informant told him appellant revealed she hid her bloody clothes at an abandoned house. Detective Garretson=s expert testimony discredited appellant=s statements that a third person was present, that she hit the complainant (but did not stab him), and that she was wearing the unstained clothes and shoes at the crime scene. See Barcenes v. State, 940 S.W.2d 739, 745 (Tex. App.CSan Antonio 1997, pet. ref=d) (holding evidence that appellant tried to cover up his actions and expert medical testimony discrediting appellant=s explanation of injuries was sufficient to sustain murder conviction). There was also ample evidence to show that Hawkins and appellant acted together. Hawkins and appellant traveled to the complainant=s apartment together early in the morning to get money from him. Both appellant and Hawkins wrestled with the complainant. Appellant claimed she was swinging at the complainant while Hawkins restrained him. Appellant and Hawkins also fled the scene together after appellant told Hawkins, AWe need to get out of here.@ They went to Hawkins=s mother=s house, chain smoked, and then cleaned the car. In her videotaped statement, appellant said, Awe [appellant and Hawkins] wasn=t [sic] trying to kill him@ and Athings was [sic] not supposed to happen like this.@ Because the record provides fair assurance that the comment in issue did not influence the jury or had but a slight effect, we conclude that the trial court=s error in overruling appellant=s objection to the State=s comment in closing arguments did not affect appellant=s substantial rights and therefore, the error is harmless. See Mosley, 983 S.W.2d at 259. Accordingly, we overrule appellant=s fifth issue.
Having overruled all of appellant=s remaining issues on remand from the Court of Criminal Appeals, we affirm the trial court=s judgment.
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Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion on Remand filed January 24, 2006.
Panel consists of Justices Yates, Anderson, and Frost. (Anderson, J., concurs in result only.)
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] We will not address this issue as we addressed it in our prior opinion and the analysis as stated in that opinion has not changed. We conclude, for the reasons stated in our prior opinion, that the evidence is legally sufficient to support appellant=s conviction, and we overrule this issue. See Hayward, 117 S.W.3d at 9B11.
[2] The State argues that appellant has waived this complaint because she failed to supply record references in connection with her briefing of this issue. We disagree. While a brief must contain Aappropriate citations to authorities and to the record,@ the briefing rules found in the Texas Rules of Appellate Procedure Aare meant to acquaint the court with the issues in a case and to present argument that will enable the court to decide the case.@ Bufkin v. State, No. 14-03-01229-CR, __ S.W.3d __ , __, 2005 WL 2675004, at *6 (Tex. App.CHouston [14th Dist.] Oct. 20, 2005, no pet. h.). When, as in this case, the court has had no difficulty locating the pertinent portions of the record relating to appellant=s fifth issue, it is within our discretion to review this issue. Id.