Jerry Lee Myers Jr. v. State

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00365-CR
NO. 09-14-00366-CR
____________________

JERRY LEE MYERS JR., Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 128th District Court
Orange County, Texas
Trial Cause Nos. A-130725-R & A-090038-R
________________________________________________________________________

MEMORANDUM OPINION

In Cause No. A-090038-R, Appellant Jerry Lee Myers Jr. (Myers) was

indicted for and pleaded guilty on August 14, 2009, to aggravated assault. Myers

was placed on deferred adjudication community supervision for eight years,

assessed a $2,000 fine, and ordered to pay $1,795.51 in restitution. In November of

2013, while Myers was serving his community supervision for the earlier assault,

1
Myers was indicted for the aggravated assault of A.W. 1, an adult male, in Cause

No. A-130725-R. The State also filed a Motion to Impose Guilt in Cause No. A-

090038-R.

In Cause No. A-130725-R, Myers waived his right to a jury trial, and he

pleaded “not guilty” to the offense. Following a bench trial, the trial court found

Myers guilty of aggravated assault in Cause No. A-130725-R. The trial court also

found Myers guilty in Cause No. A-090038-R and revoked his probation. The trial

court sentenced Myers to seven years of confinement in each case, with the

sentences to run concurrently.

In appealing both convictions, Myers contends in a single issue that he

received ineffective assistance of counsel because his counsel did not object to (1)

admission of evidence of statements by a non-testifying witness identifying Myers

as the perpetrator and (2) testimony by police officers regarding what caused the

victim’s injuries and whether the injuries were caused by a deadly weapon. We

overrule his issue and affirm.

FACTUAL BACKGROUND

Officer Troy Tyson with the City of Orange Police Department testified that

he was on patrol on the morning of September 1, 2013, when he received a call

1
We refer to the victim by his initials.
2
from dispatch about an assault that occurred at a store in Orange County, Texas.

According to Officer Tyson, when he arrived at the store he observed the alleged

victim, A. W., sitting on the curb in front of the store. A.W. had a laceration to his

head. Officer Tyson testified that the laceration was “probably about 10 inches

long and about an inch deep[.]” Officer Tyson testified that A.W. described the

assailant as someone he knew as “Smiley.” A.W. told the officer that the assailant

left the scene in a white Avalanche. The patrol video of Officer Tyson’s interview

with A.W. was introduced into evidence. A.W. did not testify at the trial.

Officer Tyson obtained a statement from the store clerk who witnessed the

assault and who knew both the victim and assailant, and a statement from A.W. No

other witnesses were at the store when Officer Tyson arrived. According to Officer

Tyson, the store clerk reported that Myers used a knife in the assault. In Officer

Tyson’s opinion, the manner of use or intended use of the knife by Myers was

capable of causing death or serious bodily injury, and A.W. suffered bodily injury

as a result of being stabbed in the head with the knife.

Detective Sergeant Jason Ashworth with the City of Orange Police

Department testified that he conducted an investigation of the assault of A.W.

Ashworth obtained and reviewed the surveillance video from the store. The

surveillance video was played at trial. Ashworth explained that over approximately

3
a three week period he gave Myers an opportunity to give a statement, but Myers

did not give a statement. Ashworth reviewed the video surveillance and testified

that the video depicts A.W. pulling up to the store and being attacked even though

“it seemed like there was no provocation for it.” Sergeant Ashworth testified that,

based on his review of the surveillance video, it appeared that the attacker made a

motion that was consistent with the use of a knife, that it appeared to be a knowing

and intentional act, and that the instrument used was, in the manner of its use and

intended use, capable of causing death or serious bodily injury. Ashworth

explained at trial that although A.W. stated on the surveillance video that Myers

had cut him with a knife, A.W. never told Ashworth that Myers had a knife.

Ashworth agreed at trial that in A.W.’s statement A.W. stated that he did not see

the weapon, and A.W. also stated that it had to have been a very sharp object.

The store clerk that witnessed the incident testified at trial. The clerk

testified that she knows Myers and A.W. Myers is known by the name of “Smiley”

and A.W. is known as “Tony.” She testified that she knew both of them because

they periodically would come into the store. She explained that at the time of the

incident she was the only clerk working and that Myers had been in and out of the

store several times that night. When the incident occurred, the clerk was holding

the front door of the store open and smoking a cigarette. She testified that she was

4
“pretty close” to the incident and that “Smiley” was sitting in a truck with his

girlfriend and another female when A.W. pulled up in his car with “possibly one or

two other people.” According to the clerk, there was no conversation between the

men before “Smiley” got out of the truck and came around A.W.’s car. The clerk

explained that, before A.W. could get out of A.W.’s car, “Smiley” had “cut

[A.W.’s] head open” with something “sharp” and “silver-looking” that “looked

like a knife.” She handed the phone to her son and told him to call 9-1-1. The clerk

testified that, based upon what she could see, A.W. did not do anything to provoke

Myers.

Myers testified that on the evening of the incident he was driving around in

his vehicle and he had another male, a female that was his fiancée at the time, and

another female in the car. Myers explained at trial that on the day before the

incident, his fiancée at the time who had “a [drug] problem with

Methamphetamines and . . . pills [and] stuff” had returned home after being gone

three days. According to Myers, his fiancée had been “over-drugged” and she told

him that five people had raped her, and it looked to Myers “like she had been

violated.” Myers testified that prior to the incident A.W. and the others in his car

had threatened him and that he went to the convenience store because he knew that

the store would have surveillance and he wanted protection “from being jumped by

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three people that just got through threatening [his] life and the life of [his] loved

ones[.]” He left the store and came back “a couple of times.” He then brought his

fiancée and two other people with him to the store.

According to Myers, he and his fiancée had just gotten out of their truck to

go into the store when A.W. and the other males pulled up in a car. Myers testified

that he thought that A.W. was armed, and that A.W. believed that Myers and

Myers’s fiancée were “snitches,” because Myers had given law enforcement

information regarding meth dealers and because Myers had testified against

someone in a prior theft case. Myers explained that he had been at odds with gangs

for a year or two. Myers testified that one of the males in A.W.’s vehicle made a

“humping motion” towards Myers’s fiancée and then the males laughed.

According to Myers, he saw a baseball bat in the front seat of A.W.’s car. Myers

testified that he went to the front of the car, yelled at A.W. and the others, and hit

the hood of the car, trying to scare them away. According to Myers, when A.W.

opened the door, Myers tried to keep A.W. “inside that door,” and then A.W.

“overpowered” Myers and A.W. got out. Myers testified that A.W. and the men in

A.W.’s car “were about to get [Myers] pin up” where he could not defend himself,

his fiancée, or the other female with him. According to Myers, when A.W. came

toward him, Myers swung at him, and a novelty screwdriver that was part of

6
Myers’s keychain caught A.W. Myers claimed he did not mean to cut A.W. Myers

then yelled to his fiancée to get in the truck, and they left in the truck as quickly as

possible. According to Myers, he believed that A.W. had learned from the other

man that had left with Myers’s cousin that Myers was at the store, and A.W. and

the other men with A.W. had come to the store to hurt or kill Myers because of

past confrontations and because Myers knew they were after his fiancée. Myers

testified that he dropped the other female off and he and his fiancée hid for three

days at another location. According to Myers, eleven men were watching them.

Myers admitted that although he had his cell phone for the three days after the

incident, he never called the police. Myers testified that he did not give a statement

because he had been advised not to make a statement at all. Myers admitted to

being on probation at the time of the incident. Myers explained that the video

shows that after the altercation, but prior to the officers’ arrival, A.W. and the two

men with A.W. unloaded items out of their car and then the two men drove off and

left A.W. at the store. According to Myers, A.W. did not tell the officers about the

two men with A.W.

AGGRAVATED ASSAULT

A person commits assault if he intentionally, knowingly, or recklessly

causes bodily injury to another; or he intentionally or knowingly threatens another

7
with imminent bodily injury; or he intentionally or knowingly causes physical

contact with another when the person knows or reasonably should believe that the

other will regard the contact as offensive or provocative. Tex. Penal Code Ann.

§ 22.01 (West Supp. 2014).2 Assault becomes aggravated assault if the person

committing assault causes serious bodily injury or uses or exhibits a deadly

weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a)

(West 2011). “Serious bodily injury” is defined as “bodily injury that creates a

substantial risk of death or that causes death, serious permanent disfigurement, or

protracted loss or impairment of the function of any bodily member or organ.” Tex.

Penal Code Ann. § 1.07(a)(46) (West Supp. 2014); Tucker v. State, 274 S.W.3d

688, 691 (Tex. Crim. App. 2008). The Penal Code does not require that the actor

actually intend death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503

(Tex. Crim. App. 2000). An object is a deadly weapon if the actor intends a use of

the object in which it would be capable of causing serious bodily injury. Id.

STANDARD OF REVIEW

“The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland v.
2
We cite to the current version of the statute as the subsequent amendments
do not affect the outcome of this appeal.
8
Washington, 466 U.S. 668, 686 (1984). To prevail on an ineffective assistance

claim, Myers must establish that (1) trial counsel’s representation fell below the

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 counsel’s deficient performance. Id. at 687-88, 694; Perez v.

State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010); Hernandez v. State, 726

S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (holding Strickland standard applied to

ineffective assistance claims under the Texas Constitution). An appellant bears the

burden of proving by a preponderance of the evidence that his counsel was

ineffective. See Perez, 310 S.W.3d at 893; Robertson v. State, 187 S.W.3d 475,

483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999).

When determining the validity of a defendant’s claim of ineffective

assistance of counsel, our judicial review must “be highly deferential to trial

counsel and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813

(citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). There is a

strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance and that counsel was motivated by sound trial strategy.

Strickland, 466 U.S. at 689; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App.

9
2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Chambers v.

State, 903 S.W.2d 21, 32-33 (Tex. Crim. App. 1995); Jackson v. State, 877 S.W.2d

768, 771 (Tex. Crim. App. 1994). Therefore, “the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)); Tong, 25 S.W.3d at 712. To overcome the

presumption of reasonable professional assistance, “[a]ny allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 814

(quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)); see

also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). The

appropriate context is the totality of the representation; counsel is not to be judged

on isolated portions of his representation. See Thompson, 9 S.W.3d at 813; Solis v.

State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990).

Direct appeal is usually an inadequate vehicle for raising a claim of

ineffective assistance of counsel because the record is generally undeveloped.

Goodspeed, 187 S.W.3d at 392 (citing Thompson, 9 S.W.3d at 813-14); Bone v.

State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (“Under normal circumstances,

the record on direct appeal will not be sufficient to show that counsel’s

10
representation was so deficient and so lacking in tactical or strategic

decisionmaking as to overcome the presumption that counsel’s conduct was

reasonable and professional.”). “The reasonableness of counsel’s choices often

involves facts that do not appear in the appellate record.” Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 2002). A petition for writ of habeas corpus

usually is the more appropriate method for a defendant to raise a claim of

ineffective assistance of counsel. Id. Where the record is silent as to counsel’s

motivations, a reviewing court will not speculate thereon. See Stults v. State, 23

S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Gamble v.

State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). When the

record is silent as to the motivation of counsel, we will not find ineffective

assistance of counsel unless counsel’s conduct was “‘so outrageous that no

competent attorney would have engaged in it.’” Goodspeed, 187 S.W.3d at 392

(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

The right to effective assistance of counsel ensures the right to “reasonably

effective assistance[,]” and it does not require that counsel must be perfect or the

representation must be errorless. See Ingham, 679 S.W.2d at 509. Isolated failures

to object to improper evidence or argument ordinarily do not constitute ineffective

assistance of counsel. See id.; Ewing v. State, 549 S.W.2d 392, 395 (Tex. Crim.

11
App. 1977). In order to meet his burden regarding his claim that his counsel was

ineffective for failing to object to evidence, the appellant must also establish that

the trial court would have committed error in overruling such objection had an

objection been made. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App.

1996).

COUNSEL’S ALLEGED DEFICIENCIES

In his sole issue on appeal, Myers complains that he received ineffective

assistance of counsel because his counsel did not object to (1) evidence of

statements by a non-testifying witness identifying Myers as the perpetrator and (2)

testimony by police officers regarding what caused the victim’s injuries and

whether the injuries were caused by a deadly weapon.

Officer Tyson and Sergeant Ashworth testified that A.W. identified Myers

as his attacker, and a video recording of Officer Tyson’s interview in which A.W.

identified Myers as his attacker was admitted into evidence. On appeal, Myers

argues that his trial counsel was ineffective because the attorney did not object to

the testimony from the Officer about what the victim told the officers at the scene,

and because the attorney failed to object to the video of the interview of A.W.

which was admitted at trial wherein A.W. identified Myers as the attacker. Myers

asserts that “[a] reasonably prudent attorney would have objected to all of the times

12
that the State introduced testimony of Anthony [A.W.]” because A.W. did not

testify and those statements constituted hearsay, and that “[c]ounsel was not

prepared to object to all of the evidence presented with respect to the witness that

was not presented at trial.”3 Myers also complains that his counsel was ineffective

because he “allowed police officers to speculate on what caused the injuries to

[A.W.] and whether the injuries had to be caused by a deadly weapon.” Myers

contends that the testifying police officers were not qualified to give their opinions

on those matters and that counsel’s failure to object to the speculation “led to

harmful error and was such deficient performance as to meet the first prong set

forth in Strickland.”

Officer Tyson opined that the manner of use or intended use of the

instrument used by Myers to injure A.W. was capable of causing death or serious

bodily injury and that A.W. suffered bodily injury as a result of being stabbed on

the head. Sergeant Ashworth testified that, based on his review of the surveillance

video and more than twenty years’ experience in law enforcement, it appeared to

him that the attacker made a motion that was consistent with the use of a knife, that

3
Myers states in one sentence in his brief on appeal that Myers had “no
chance to confront his accuser.” We note that Myers does not brief any error under
the Confrontation Clause, nor does he cite any authority to support such a claim.
Accordingly, any such argument has not been properly briefed or presented on
appeal. See Tex. R. App. P. 38.1(i).
13
it appeared to be a knowing and intentional act, and that the instrument used, both

in the manner of its use and intended use, was capable of causing death or serious

bodily injury. The store clerk testified that Myers “cut [A.W.’s] head open” with

something “sharp” and “silver-looking” that “looked like a knife.” Furthermore,

although A.W. did not testify regarding his injuries, photographs depicting his

injuries were admitted into evidence and the photographs appear to depict a cut on

A.W.’s head.

ANALYSIS

The record in the case at bar is silent as to why Myers’s trial counsel may

have chosen not to object to the video or why he chose not to make a hearsay

objection to the particular evidence at trial. Where, as here, the record is silent as to

the underlying reasons for counsel’s strategy or conduct, we will not speculate

about them. See Bone, 77 S.W.3d at 835 (“Ineffective assistance of counsel claims

are not built on retrospective speculation[.]”); see also Ex parte Varelas, 45

S.W.3d 627, 632 (Tex. Crim. App. 2001) (“[T]he bare record does not reveal the

nuances of trial strategy.”). However, employing the “strong presumption that

counsel’s conduct [fell] within the wide range of reasonable professional

assistance[,]” we cannot say that the failure to object to such evidence and

testimony was unsound trial strategy. Strickland, 466 U.S. at 689; Ex parte White,

14
160 S.W.3d at 51; Tong, 25 S.W.3d at 712. We decline to speculate about

counsel’s strategy or reasoning. The appellate record provides no basis for us to

conclude that trial counsel’s strategy was unreasonable based on prevailing

professional norms.

In order for Myers to meet his burden regarding his claim that his counsel

was ineffective for failing to object to the evidence, Myers must establish that the

trial court would have committed error in overruling such objection had an

objection been made. See Vaughn, 931 S.W.2d at 566. After the State concluded its

case in chief, and in making the defense motion for a finding of not guilty due to

insufficient evidence and the inability to cross-examine A.W., defense counsel

argued that “the State’s evidence mostly relied upon officers who were not there

and two videos” that constitute “all kinds of hearsay[.]” The trial court denied

defense counsel’s motion. Assuming without deciding that defense counsel made a

timely hearsay objection to the testimony of the two police officers and the video,

it would not have been an abuse of discretion for the trial court to overrule the

hearsay objection because A.W.’s statements are within an exception to the

hearsay rule as a present sense impression, and the identification of Myers as the

assailant would otherwise be cumulative of the eyewitness testimony of the store

clerk who identified Myers as the assailant. See Tex. R. Evid. 803(1). Under the

15
present sense impression exception to the hearsay rule, a statement describing or

explaining an event or condition made while the declarant was perceiving the event

or condition, or immediately thereafter, is not excluded as hearsay. Tex. R. Evid.

803(1); Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992). Failure to

object to admissible evidence does not constitute ineffective assistance of counsel.

McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on

other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).

Additionally, the failure to object to otherwise cumulative evidence will not

support a claim of ineffective assistance of counsel. Darby v. State, 922 S.W.2d

614, 624 (Tex. App.—Fort Worth 1996, pet. ref’d); Marlow v. State, 886 S.W.2d

314, 318 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

On the record before us, Myers has not established that his counsel’s

representation fell below an objective standard of reasonableness. Jackson, 877

S.W.2d at 771; Hernandez, 726 S.W.2d at 55. We lack any basis in the record

before us to conclude that the alleged failure of his defense counsel to object to the

testimony and evidence in question was “so outrageous that no competent attorney

would have engaged in it.” Goodspeed, 187 S.W.3d at 392. Myers has failed to

establish the first Strickland prong, i.e., that trial counsel’s representation fell

below the objective standard of reasonableness based on prevailing professional

16
norms. See Strickland, 466 U.S. at 700 (“Failure to make the required showing of

. . . deficient performance . . . defeats the ineffectiveness claim.”); see also Estrada

v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (deciding the record was

insufficient to address ineffective assistance of counsel claims where it did not

sufficiently show that counsel’s representation was deficient as to tactical and

strategic decisionmaking).

When a defendant fails to satisfy one prong of the Strickland test, a court

need not consider the other prong. Garcia, 57 S.W.3d at 440 (citing Strickland,

446 U.S. at 697). Nonetheless, we also conclude that Myers has failed to establish

that there is a reasonable probability that the result of the proceeding would have

been different but for counsel’s alleged deficient performance. Even if we accept

Myers’s contention that defense counsel should have lodged additional hearsay

objections to the video or that his attorney should have objected to the officer’s

testimony about the cut or use of a knife or “deadly weapon,” the record does not

support Myers’s assertion that there is a reasonable probability that, but for his

attorney’s deficiency, the result of the trial would have been different. See

Strickland, 466 U.S. at 689. The store clerk testified that she knew both A.W. and

Myers by their nicknames, that she witnessed the incident, that a male she knew as

“Smiley” was the assailant who attacked A.W., that it appeared to her that A.W.

17
did not provoke “Smiley,” and she identified Myers at trial as the man she knew as

“Smiley” and as the person who attacked A.W. Myers admitted at trial that he

attacked A.W. The complained-of evidence concerns statements by A.W.

identifying Myers as his assailant that are merely cumulative of other admissible

evidence. Therefore, trial counsel’s failure to object to the admission of the

complained-of evidence, regardless of whether it was hearsay, does not render

counsel’s performance below an objective standard of reasonableness.

With respect to the testimony about the instrument Myers used to inflict the

injury to A.W., expert testimony is not required to show an instrument can be used

as a deadly weapon. Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App.

1978). Wounds inflicted upon a victim are a factor to consider in determining

whether a weapon qualifies as a deadly weapon. Id. at 130; see also Alvarez v.

State, 566 S.W.2d 612, 614 (Tex. Crim. App. 1978). The fact finder may determine

whether an object was a deadly weapon based on lay witness testimony alone. See

Denham, 574 S.W.2d at 131; Cruz v. State, 576 S.W.2d 841, 842 (Tex. Crim. App.

1979); Bailey v. State, 46 S.W.3d 487, 492 (Tex. App.—Corpus Christi 2001, pet.

ref’d); Bui v. State, 964 S.W.2d 335, 345 (Tex. App.—Texarkana 1998, pet. ref’d).

The State need not prove that the defendant caused or even intended to cause death

or serious bodily injury in order to justify a deadly weapon finding; rather the State

18
must only prove that the actual use or intended use of the object was capable of

causing death or serious bodily injury. See Garcia v. State, 92 S.W.3d 574-76

(Tex. App.—Austin 2002, no pet.); Brooks v. State, 900 S.W.2d 468, 472 (Tex.

App.—Texarkana 1995, no pet.).

Myers has failed to establish the first Strickland prong, i.e., that trial

counsel’s representation fell below the objective standard of reasonableness based

on prevailing professional norms. See Strickland, 466 U.S. at 700; see also

Estrada, 313 S.W.3d at 311. Furthermore, Myers has failed to demonstrate that,

but for counsel’s alleged errors, the outcome of his trial would have been different.

See Bone, 77 S.W.3d at 833; Graves v. State, 310 S.W.3d 924, 929 (Tex. App.—

Beaumont 2010, pet. ref’d). We reject Myers’s ineffective assistance of counsel

claim, and we overrule his issue.

We affirm the trial court’s judgments.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on May 21, 2015
Opinion Delivered July 29, 2015
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.
19