Affirmed and Memorandum Opinion filed June 30, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00407-CR
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SHANE LATRELLE SAM, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1095112
M E M O R A N D U M O P I N I O N
Appellant, Shane Latrelle Sam, was convicted of the felony offense of violating a protective order by assaulting the complainant. See Tex. Penal Code Ann. ' 25.07 (Vernon Supp. 2008). He was sentenced to five years= confinement. On appeal, he presents three issues for our review. In the first issue, appellant challenges the factual and legal sufficiency of the evidence as to one of the essential elements of the alleged crime. In his second issue, he claims the trial court erred in admitting evidence of his prior convictions for violations of a protective order. In his third issue, appellant challenges the effectiveness of his trial counsel. Finding no reversible error, we affirm.
Background
On December 3, 2004, the complainant, Joanna Sam, obtained a protective order against appellant. The order restricted appellant from committing family violence against the complainant, communicating directly with her, or going near her residence or place of employment.
However, on December 2, 2006, while the protective order was still in place, appellant entered the complainant=s home where he hid in her utility room until she arrived home from work. He then confronted her, grabbed her by her shirt, and held a butcher knife to her neck. Although the knife did not break the skin, the complainant testified that appellant maintained a tight grip on her, and that she was unable to breathe during the attack.
Based on the attack that took place on December 2, 2006, appellant was charged by indictment with (1) aggravated assault and (2) violation of a protective order by assaulting the complainant. He pleaded Anot guilty@ to both offenses. After hearing the evidence, the jury acquitted appellant of aggravated assault but convicted him of violating the protective order. On appeal, appellant asks that we reverse his conviction for violation of a protective order, and that we remand for a new trial.
Analysis
A. Legal and Factual Sufficiency
In his first issue, appellant contends the evidence is legally and factually insufficient to support the conviction. Specifically, he argues that the evidence is insufficient to establish that he assaulted the complainant in violation of the protective order because he claims there is no evidence that she actually suffered bodily injury, a necessary element of assault.
1. Standard of Review
The standards of review for legal and factual sufficiency are well-known. In evaluating a legal sufficiency claim attacking a jury=s finding of guilt, we must view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19 (1979). Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000) (emphasis added).
When conducting a factual sufficiency review, we review the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We determine (1) whether the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ or (2) whether, considering conflicting evidence, the fact finder=s verdict is nevertheless against the great weight and preponderance of the evidence. Id. at 414B15. Here, appellant claims the evidence that the complainant suffered bodily injury is so weak that it undermines confidence in the jury=s determination. See Zuliani v. State, 97 S.W.3d 589, 593B94 (Tex. Crim. App. 2003).
A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Penal Code Ann. ' 22 .01(a)(1) (Vernon Supp. 2008). ABodily injury@ is defined as Aphysical pain, illness, or any impairment of physical condition.@ Tex. Penal Code Ann. ' 1.07 (Vernon Supp. 2008). This definition is purposefully broad and encompasses even relatively minor physical contacts so long as they constitute more than mere offensive touching. Salley v. State, 25 S.W.3d 878, 881 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (citing Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989)).
2. Application to Facts
Having reviewed the record, we conclude that the evidence is legally and factually sufficient to support the finding that the complainant suffered bodily injury as a result of appellant=s attack. Specifically, the complainant testified that appellant held her by her shirt and that she could not breathe. She also testified that appellant held a butcher knife to her throat, which she demonstrated for the jury. When the prosecutor asked the complainant if appellant=s actions caused her pain, she responded affirmatively.
The jury is the sole judge of the weight and credibility of witness testimony. See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Due deference must be given to the determinations concerning the weight and credibility of the evidence, and reversal of those determinations is only appropriate to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004). We must presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Jackson, 443 U.S. at 326.
In arguing insufficiency, appellant argues that the complainant Asuffered no bruises, cuts, or other marks.@ However, this court has held that a complainant=s testimony that she suffered pain is sufficient to prove bodily injury. Letson v. State, 805 S.W.2d 801, 806-07 (Tex. App.CHouston [14th Dist.] 1990, no pet.). Accordingly, we conclude that a rational jury could have found that the complainant suffered bodily injury and the evidence supporting that determination is not Aso weak@ that it renders the verdict Aclearly wrong and manifestly unjust.@ See Watson, 204 S.W.3d at 414B15. Therefore, we overrule appellant=s first issue.
B. Admission of Extraneous Offenses
Appellant=s second issue arises from the admission of evidence that appellant was also separately convicted for another violation of the 2004 protective order and for violating an earlier protective order in 2003. Generally, appellant contends the trial court abused its discretion by admitting evidence of both violations.[1] However, because the same evidence was admitted elsewhere without objection, we find no reversible error.
It is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged. Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998). Here, the evidence in controversy was admitted without objection[2] by way of the 2004 protective order and the testimony of Deputy Steve Mateo. Accordingly, we hold the trial court=s admission of the complainant=s testimony regarding the 2003 and 2006 violations was not reversible error. See id. Appellant=s second issue is overruled.
C. Ineffective Assistance of Counsel
In the third issue, appellant claims he received ineffective assistance of counsel because his attorney, among other things, failed to object to evidence of his convictions for other violations of protective orders. In reviewing this issue, we apply the usual two-pronged test to ineffective-assistance claims. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, appellant must prove that counsel=s performance was deficient, that is, that his representation fell below an objective standard of reasonableness. See id. at 687B88. Second, appellant must show that counsel=s deficient performance prejudiced his defense. See id. at 687. This latter element requires appellant to demonstrate a reasonable probability that, but for the allegedly deficient representation, the result of the proceeding would have been different. See id. at 694. Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
In this case, appellant contends his trial counsel was ineffective for three reasons: (1) she failed to object to the admission of appellant=s 2006 conviction under Rule 403 of the Texas Rules of Evidence; (2) she failed to request that a limiting instruction be given to the jury at the time evidence of the extraneous offenses was admitted; and (3) she failed to object to the broad limiting instruction included in the jury charge and to request a more specific instruction.
Under current law, our scrutiny of counsel=s performance must be deferential, and we are to presume that trial counsel rendered effective assistance. See Strickland, 466 U.S. at 689; Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Therefore, appellant must overcome the strong presumption that, under the circumstances, his attorney=s actions might be considered sound trial strategy. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Here, we conclude that appellant has not carried that burden.
The record is silent with regard to trial counsel=s reasons for not making a Rule 403 objection to the 2006 conviction and not requesting a specific limiting instruction. On such a record, we cannot determine that counsel provided ineffective assistance unless the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Here, we cannot conclude that no competent attorney would have acted as appellant=s counsel did, because there may be strategic reasons for her decisions. For example, appellant=s counsel may have decided that the likelihood of success (and its potential strategic benefits) were outweighed by the potential of drawing substantial jury attention to the extraneous offenses. See Webb v. State, 995 S.W.2d 295, 301 (Tex. App.CHouston [14th Dist.] 1999, no pet.); Duren v. State, 87 S.W.3d 719, 734 (Tex. App.CTexarkana 2002, pet. struck). Thus, because the record does not compel a conclusion that counsel was ineffective, appellant has failed to rebut the presumption of effective representation. See Perez v. State, 56 S.W.3d 727, 731B32 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Therefore, we overrule appellant=s third issue.
Conclusion
Accordingly, the judgment of the trial court is affirmed.
/s/ Kent C. Sullivan
Justice
Panel consists of Justices Yates, Guzman, and Sullivan.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] We review a trial court=s evidentiary rulings for an abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or when its decision lies outside the zone of reasonable disagreement. See Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003); Green v. State, 934 S.W.2d 92, 101B02 (Tex. Crim. App. 1996).
[2] Appellant objected to the authenticity of the protective order but lodged no objection on the basis of relevance or unfair prejudice. See Nino v. State, 223 S.W.3d 749, 755 (Tex. App.CHouston [14th Dist.] 2007, no pet.) (concluding defendant did not preserve relevancy and unfair-prejudice challenges by failing to object on those grounds).