COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00221-CR
THOYS DEWAYNE SANDERS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
A jury convicted appellant Thoys Dewayne Sanders of assault. The trial
court assessed punishment at 270 days‘ confinement and probated that
sentence for two years, placing Sanders on community supervision. The court
also required Sanders to pay $21,541 in restitution. In three issues, Sanders
contends that the evidence is insufficient to prove he assaulted the alleged
victim, that the trial court abused its discretion by assessing the restitution
amount, and that he received ineffective assistance of counsel at trial. We will
affirm.
II. BACKGROUND
Leah Williams, who lived with her mother and Sanders, her stepfather,
entertained friends on the night of Saturday, April 21, 2007. Sara Grauerholz,
Amanda Sessions, Jeremiah Langen, and Justin Henninge, the alleged victim in
this case, were Williams‘s guests. Williams and her friends smoked marijuana
and drank alcohol that evening. They eventually fell asleep in different rooms of
the residence‘s garage apartment.
Early the next morning, Williams‘s mother woke her up and told her that
Sanders was angry and that she and her friends needed to leave. Williams‘s
mother was also upset because someone‘s car was blocking her car in the
driveway. The layout of the garage apartment requires one to walk down the
stairs and exit through the garage, where Sanders kept his cabinet-making
workshop. As Williams and her friends began to leave, Williams and Grauerholz
walked outside as Sanders quickly passed them and entered the garage. At that
moment, Sanders encountered Henninge. That encounter led to assault charges
against Sanders.
A. Justin Henninge
According to Henninge, he was woken when Williams‘s mother confronted
Williams that morning. He said that Williams‘s mother said, ―Wake up. Wake up.
2
[Sanders] is angry. [Sanders] is mad. You have to leave.‖ Henninge testified
that he, Grauerholz, and Williams walked down the stairs of the garage
apartment, attempting to exit the garage. By Henninge‘s account, as soon as
Grauerholz and Williams left the garage, Sanders came into the garage and,
using his arm, ―pinned [Henninge] against the wall.‖ Henninge said, ―from then I
woke up to [Grauerholz] yelling.‖ Henninge said that because he was knocked
unconscious by Sanders, he did not really remember much of anything from the
encounter other than Grauerholz yelling ―You hit my boyfriend.‖ Henninge and
the prosecutor re-enacted Henninge‘s account of the encounter with Sanders for
the jury. Henninge said that despite having smoked marijuana the night before,
he was sober when these events happened. At some point, police and EMT
arrived on the scene and Henninge was taken to the hospital. Henninge did not
remember talking with a police officer and did not remember riding to the
hospital, but he did remember being placed on a stretcher.
The next thing Henninge vividly remembered was getting an MRI at the
hospital. Henninge said Sanders‘s actions left a huge bruise on one side of his
face, another on the back of his head, and another on the opposite side of his
face. The State introduced pictures of these injuries, and Henninge testified that
they were accurate depictions of the injuries he had sustained from his encounter
with Sanders. Henninge also averred that Sanders had caused him to have a
black eye, multiple facial rashes and abrasions, and internal bleeding of the
3
brain. Henninge testified that the hospital performed multiple scans, including
MRIs and X-rays.
B. Sara Grauerholz
Much like Henninge‘s account, Grauerholz testified that she, Henninge,
and a few others stayed with Williams that night. As the morning approached,
Williams‘s mother woke them all, mildly irritated that Grauerholz‘s vehicle was
blocking hers. According to Grauerholz, Williams‘s mother informed them that
Sanders was upset. Grauerholz recounted the noise she heard when she left the
garage and was outside, ―[W]e heard a noise against a garage door . . . . A slam
or something hitting a garage door.‖ Grauerholz said she immediately turned
toward the garage and saw Henninge lying on the floor not moving. She said
that Sanders was standing over Henninge. She and Williams attempted to carry
Henninge to her car, but Williams‘s mother came out, told them to stay, and
informed them that 9-1-1 had been called. Grauerholz also testified that she
believed Henninge was sober that morning. She said that she asked Sanders
why he had hit her boyfriend and that Sanders simply went upstairs without
responding. Sanders also did not assist Henninge despite Henninge‘s injuries.
C. Jason Bowman
Jason Bowman, an EMT basic paramedic, responded to the request for
medical assistance that morning. Bowman said that when he arrived and
encountered Henninge, Henninge appeared confused. Bowman averred, given
4
his experience as an EMT paramedic, that Henninge did not appear high on
drugs or alcohol. He also said that Henninge was injured. Based on his training
and experience, Bowman believed that Henninge‘s injuries appeared to be the
result of an assault. Bowman testified that he initially diagnosed Henninge with a
concussion. He said that Henninge also had facial tenderness, swelling,
lacerations to the face, and a nosebleed. Bowman said that Henninge‘s injures
were severe and the result of a ―severe blunt force.‖ He also testified that
Henninge had no injuries to the back of his head and that Henninge‘s injuries
were consistent with a frontal blow.
D. Leah Williams
Leah Williams testified. Williams‘s account of the morning in question
tracked the testimony of Henninge and Grauerholz. That is, Williams also said
that she, Grauerholz, and Henninge were leaving because her mother woke
them up and asked them to leave. She testified that her mother was angry.
Williams also said that she heard what she believed to be Henninge hitting the
garage door. She said that the garage door ―rattled quite a bit‖ from whatever
impacted it.
E. Medical Records and Verdict
The State admitted into evidence a set of medical records, with an
accompanying affidavit, regarding Henninge‘s admittance into the hospital on the
morning of April 22, 2007. The records contain detailed medical information
5
pertaining to Henninge‘s obligations to pay for medical treatment of injuries he
sustained.
The jury found Sanders guilty. Sanders elected to have the trial court
assess punishment. At the punishment hearing, Henninge‘s mother testified that
despite Henninge having some insurance coverage, his insurance carrier would
not pay most of his medical bills and that her family has not been able to pay for
Henninge‘s medical bills. She also said that the bills were delinquent at the time
of trial. The State again introduced medical billing documents showing that
Henninge‘s unpaid medical costs related to injuries he sustained on April 22,
2007, totaled $21,541. The trial court assessed punishment at 270 days‘ in jail
but probated Sanders‘s sentence for two years. The court also ordered Sanders
to pay restitution in the amount of $21,541. This appeal followed.
III. DISCUSSION
A. Sufficiency of the Evidence
In his first point, Sanders contends that the trial court abused its discretion
by denying his motion for instructed verdict. Sanders‘s first point contains two
distinct subparts. First, it seems that Sanders argues that there exists a variance
between the charging instrument and the proof presented at trial to show that he
assaulted Henninge. Second, Sanders challenges the evidentiary sufficiency to
support his conviction.
6
1. No Material Variance
In part of his first point, Sanders argues that the evidence does not support
that Henninge‘s injuries were a result of him having struck a wall; rather, the
evidence ―indicates that the injuries sustained by [Henninge] were the result of
Henninge‘s fall to the floor.‖ Sanders appears to argue that because the
charging instrument—in this case by information—alleged that Sanders
―intentionally or knowingly cause[d] bodily injury to [Henninge], by striking him . . .
thereby causing him to strike or slam into a wall‖ and because the evidence at
trial showed that Henninge‘s injuries were caused by him hitting the floor, the
evidence is insufficient to support Sanders‘s conviction. Thus, according to
Sanders, the trial court erred by not granting his instructed verdict.
A ―variance‖ occurs when there is a discrepancy between the allegations of
the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243,
246 (Tex. Crim. App. 2001). In other words, in a variance situation, the State has
proved the defendant guilty of a crime, but has proved its commission in a
manner that varies from the allegations in the charging instrument. Id. Only a
material variance requires reversal because only a material variance prejudices a
defendant‘s substantial rights. Fuller v. State, 73 S.W.3d 250, 263 (Tex. Crim.
App. 2002). We decide if the variance is material by determining ―whether the
[charging instrument], as written, informed the defendant of the charge against
him sufficiently to allow him to prepare an adequate defense at trial, and whether
7
prosecution under the deficiently drafted [charging instrument] would subject the
defendant to the risk of being prosecuted later for the same crime.‖ Gollihar, 46
S.W.3d at 257.
Sanders does not argue that the information was inadequate to inform him
of the charge against him sufficiently to allow him to prepare an adequate
defense, nor does Sanders argue that prosecution under the information would
subject him to the risk of being prosecuted later for the same crime. In fact,
Sanders‘s trial counsel repeatedly attempted to persuade the jury that Sanders‘s
and Henninge‘s encounter was purely accidental, rather than an assault. Trial
counsel also repeatedly demonstrated through extensive questioning of
witnesses that Sanders was fully aware of whom he was accused of injuring, and
there is no evidence that Sanders was surprised by any proof offered at trial.
See Fuller, 73 S.W.3d at 253–54 (―There is no indication in the record that
appellant did not know whom he was accused of injuring or that he was surprised
by the proof at trial.‖). We hold that Sanders has failed to show a fatal variance
between the indictment and the proof at trial, and we overrule this portion of his
first point. Thus, we will disregard the alleged variance in determining whether
the evidence is sufficient to prove that Sanders assaulted Henninge. See Hilburn
v. State, 312 S.W.3d 169, 175 (Tex. App.—Fort Worth 2010, no pet.)
(disregarding alleged variance and conducting evidentiary sufficiency review
when appellant failed to explain on appeal how alleged variance prevented him
8
from preparing a defense or how he could be prosecuted again under same
facts).
2. The Evidence is Sufficient to Support Sanders’s
Conviction
In the remainder of his first point, Sanders challenges the sufficiency of the
evidence to support his conviction for assaulting Henninge. Sanders claims both
that we are to conduct a legal sufficiency review and that we are to remand this
case for a new trial; thus, Sanders implicates issues of both legal and factual
sufficiency reviews. But the crux of Sanders‘s point is that ―[t]here is no evidence
that the injuries sustained by Henninge were the result of [Sanders] causing him
to strike a wall‖ and that there exists a ―reasonable hypothesis other than
[Sanders‘s] guilt‖ that Henninge ―fell to the floor accidentally.‖ We conclude that
the evidence supports Sanders‘s conviction.
The court of criminal appeals has held that there is ―no meaningful
distinction between the Jackson v. Virginia legal-sufficiency standard and the
Clewis factual-sufficiency standard‖ and that the Jackson standard ―is the only
standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893,
895, 902 (Tex. Crim. App. 2010). Accordingly, we review Sanders‘s claims of
evidentiary sufficiency under ―a rigorous and proper application‖ of the Jackson
standard of review. Id. at 906.
9
Under the Jackson standard, ―the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, 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, 99 S. Ct. 2789, 2789
(1979); see Brooks, 323 S.W.3d at 899 (characterizing the Jackson standard
as: ―Considering all of the evidence in the light most favorable to the verdict, was
a jury rationally justified in finding guilt beyond a reasonable doubt‖). ―[T]he
factfinder‘s role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be considered in the
light most favorable to the prosecution.‖ Jackson, 443 U.S. at 319, 99 S. Ct. at
2789; see Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979) (―The jury, in all
cases, is the exclusive judge of the facts proved and of the weight to be given to
the testimony.‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000),
cert. denied, 532 U.S. 944 (2001) (―The jury is the exclusive judge of the
credibility of witnesses and of the weight to be given testimony, and it is also the
exclusive province of the jury to reconcile conflicts in the evidence.‖).
Sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394,
404 (Tex. Crim. App. 2000); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—
Corpus Christi 2002, pet. ref‘d). Under a hypothetically correct jury charge, the
State was required to prove beyond a reasonable doubt that Sanders
10
―intentionally, knowingly, or recklessly cause[d] bodily injury to another.‖ Tex.
Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2010).
The State is not required to present direct evidence to establish guilt. See
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Indeed,
circumstantial evidence is as probative as direct evidence in establishing the guilt
of the actor, and circumstantial evidence alone can be sufficient to establish guilt.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Guevara, 152
S.W.3d at 49. The law does not require that each fact ―point directly and
independently to the guilt of the appellant, as long as the cumulative force of all
the incriminating circumstances is sufficient to support the conviction.‖ Hooper,
214 S.W.3d at 13; see Guevara, 152 S.W.3d at 49.
Moreover, it is not incumbent upon the State to exclude ―every reasonable
hypothesis other than guilt‖ for the evidence to be considered sufficient. See
Geesa v. State, 820 S.W.2d 154, 157–61 (Tex. Crim. App. 1991), overruled on
other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000);
see also Villarreal Lopez v. State, 267 S.W.3d 85, 97–98 (Tex. App.—Corpus
Christi 2008, no pet.) (citing Harris v. State, 133 S.W.3d 760, 763–65 (Tex.
App.—Texarkana 2004, pet. ref‘d)); Richardson v. State, 973 S.W.2d 384, 387
(Tex. App.—Dallas 1998, no pet.) (―[T]he mere existence of an alternative
reasonable hypothesis does not render the evidence . . . insufficient. . . . [E]ven
when an appellant identifies an alternative reasonable hypothesis raised by the
11
evidence, the standard of review remains the same.‖); Orona v. State, 836
S.W.2d 319, 322 (Tex. App.—Austin 1992, no pet.)).
In this case, the jury heard testimony that Sanders was angry the morning
that Henninge was injured. Multiple witnesses testified that Williams and her
friends were woken by Williams‘s mother, who declared that everyone needed to
leave and that Sanders was angry. Grauerholz testified that as she and Williams
left the garage, Sanders quickly went into the garage; a loud noise and rattling of
the garage door could be heard; and both Williams and Grauerholz said that as
they looked to see what had occurred, Henninge was then on the floor,
unconscious. Multiple witnesses testified that Sanders was standing over
Henninge and not assisting him. Grauerholz‘s reaction was to immediately
exclaim, ―I can‘t believe you hit my boyfriend.‖ And Sanders did not deny hitting
Henninge. Henninge testified that as Sanders came into the garage, he pinned
Henninge against the wall with his arm and that from there, Henninge lost
consciousness. Bowman, the paramedic who immediately treated Henninge,
testified that Henninge had tenderness, swelling, and other signs of impact injury,
including lacerations, nosebleed, contusions, and abrasions to his head and neck
area. Bowman also testified that Henninge acted consistent with a person who
had been hit by a strike that was a ―[p]retty severe blunt force. A very good
punch, hit, [or] kick.‖
12
Viewing the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found beyond a reasonable doubt that Sanders
intentionally, knowingly, or recklessly caused Henninge‘s bodily injuries See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778; see
also Tex. Penal Code Ann. § 22.01. Accordingly, we hold that the evidence is
sufficient to support Sanders‘s conviction for assault. See Moon v. State, 44
S.W.3d 589, 593 (Tex. App.—Fort Worth 2001, pet. ref‘d) (holding that evidence
was legally sufficient to prove defendant used his hands to injure his wife, despite
lack of direct testimony, because jury could infer use of hands from
circumstances surrounding wife‘s injuries). We overrule the remainder of
Sanders‘s first point.
B. Effective Assistance of Counsel
In his second point, Sanders argues that the trial court abused its
discretion by denying his motion for new trial. Sanders‘s motion claimed that he
received ineffective assistance of counsel. Filed with his motion, Sanders
attached an affidavit of an alleged witness who averred that he would testify that
Sanders accidentally ran into Henninge and that Sanders did not intentionally
injure Henninge. Concerned that trial counsel had failed to call a potentially
exculpating witness, on October 18, 2010, this court abated Sanders‘s appeal
and remanded the case to the trial court to conduct a hearing on his motion for
new trial. In our abatement order, we specifically stated that ―Sanders‘s trial
13
counsel should have been afforded an opportunity to explain his actions.‖ At the
hearing, however, Sanders did not call his original trial counsel to testify and
explain his trial tactics. The trial court again denied Sanders‘s motion for new
trial. Thus, we will conduct our analysis of Sanders‘s second point using the
record from the trial and from the abatement hearing.
Our review of counsel‘s performance must be highly deferential. Strickland
v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984). The burden of
proving ineffective assistance of counsel is on the appellant. Stafford v. State,
813 S.W.2d 503, 506 n.1 (Tex. Crim. App. 1991); Moore v. State, 694 S.W.2d
528, 531 (Tex. Crim. App. 1985); Cannon v. State, 668 S.W.2d 401, 403 (Tex.
Crim. App. 1984). An allegation of ineffective assistance of counsel will be
sustained only if it is firmly founded and if the record affirmatively demonstrates
counsel‘s alleged ineffectiveness. Ex parte McWilliams, 634 S.W.2d 815, 819
(Tex. Crim. App. 1980), cert. denied, 459 U.S. 1036 (1982). Effective assistance
of counsel is gauged by the totality of the representation from the pretrial
representation of the accused through the punishment stage of the trial. Ex parte
Walker, 777 S.W.2d 427, 431 (Tex. Crim. App. 1989). Thus, the trial as a whole
must be reviewed and not simply isolated incidents of counsel‘s performance.
Cannon, 668 S.W.2d at 403. The standard of review for ineffective assistance of
counsel is the same for all phases of the trial. See Hernandez v. State, 988
14
S.W.2d 770, 772 (Tex. Crim. App. 1999) (Strickland standard is standard for all
ineffective assistance of counsel claims).
A defendant seeking relief must demonstrate: (1) that counsel‘s
performance failed to constitute reasonably effective assistance by falling below
an objective standard of reasonableness under the prevailing professional
norms; and (2) that there is a reasonable probability that but for counsel's
deficient performance, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002). A ―reasonable probability‖ is defined as ―a
probability sufficient to undermine confidence in the outcome.‖ Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Bone, 77 S.W.3d at 832.
We begin our analysis with a rebuttable presumption that counsel is better
positioned than the appellate court to judge the pragmatism of the particular case
and that he made all significant decisions in the exercise of reasonable
professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App.
1992). The presumption may be rebutted by evidence of counsel‘s reasoning or
lack thereof. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994). In the absence of evidence of counsel‘s reasons for the challenged
conduct, the appellate court will assume a strategic motivation and will not
conclude that the conduct was deficient unless the conduct was so outrageous
that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d
15
436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003); see
Thompson v. State, 9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999). Generally,
performance of counsel cannot be adequately examined based on a trial court
record. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.]
1994, pet. ref‘d). Finally, an appellant‘s failure to satisfy one prong of the
Strickland test negates a court‘s need to consider the other prong. Strickland,
466 U.S. at 697, 104 S. Ct. 2069; Garcia, 57 S.W.3d at 440.
Here, we find no evidence rebutting the presumption that Sanders‘s trial
counsel made all significant decisions in the exercise of reasonable professional
judgment. Sanders contends that trial counsel was ineffective because he did
not call an alleged eyewitness to the stand who would have said that Sanders‘s
encounter with Henninge was an accident. Even though this court abated this
appeal and remanded for a hearing, allowing trial counsel to give his reasons for
not calling this witness, Sanders did not call trial counsel to the hearing. And, as
the State argues, Sanders‘s trial counsel‘s choosing not to call this witness may
have been reasonable trial strategy in that trial counsel may have concluded that
this witness was unreliable and unbelievable. The record does show that trial
counsel made numerous objections and repeatedly attempted to elicit testimony
that Sanders did not intentionally harm Henninge. With the limited record this
court has to review, we hold that Sanders has failed to meet his burden of
16
proving by a preponderance of the evidence that his trial counsel was ineffective.
Accordingly, we overrule Sanders‘s second point.
C. Restitution
In his third point, Sanders argues that the trial court abused its discretion
by ordering him to pay $21,541 in restitution to Henninge. The State argues
(1) that Sanders failed to preserve this issue for our review and (2) that the
restitution amount was supported by the record and was within the sound
discretion of the trial court to impose. Assuming without deciding that Sanders
has preserved this issue for our review, we agree with the State that the trial
court did not abuse its discretion in ordering the amount of restitution to be paid.
We review a trial court‘s decision to order restitution for an abuse of
discretion. See Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999);
Burris v. State, 172 S.W.3d 75, 77 (Tex. App.—Fort Worth 2005, no pet.); Lemos
v. State, 27 S.W.3d 42, 45 (Tex. App.—San Antonio 2000, pet. ref‘d). An abuse
of discretion occurs if the trial court acts without reference to any guiding rules or
principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d
372, 380 (Tex. Crim. App. 1991) (op. on reh‘g). A trial court abuses its discretion
when it sets restitution in an amount that is unjust or unsupported by facts.
Campbell, 5 S.W.3d at 696 (citing Cartwright v. State, 605 S.W.2d 287, 289 (Tex.
Crim. App. [Panel Op.] 1980)).
17
The code of criminal procedure provides that ―the court that sentences a
defendant convicted of an offense may order the defendant to make restitution.‖
Tex. Code Crim. Proc. Ann. art. 42.037(a) (Vernon Supp. 2010); see also Tex.
Const. art. I, § 30(b)(4); Weir v. State, 278 S.W.3d 364, 366–67 (Tex. Crim. App.
2009). In determining the amount of restitution, the court shall consider ―the
amount of the loss sustained by any victim‖ and ―other factors the court deems
appropriate.‖ Tex. Code Crim. Proc. Ann. art. 42.037(c). ―The court shall impose
an order of restitution that is as fair as possible to the victim,‖ and the ―standard
of proof is a preponderance of the evidence.‖ Tex. Code Crim. Proc. Ann. art.
42.037(e), (k). See Burris, 172 S.W.3d at 78 (explaining that ―testimony from a
. . . victim of the crime with personal knowledge of the amount of [damages]
incurred . . . is adequate to support a restitution order‖). The burden of
demonstrating the amount of the loss sustained by a victim as a result of the
offense is on the prosecuting attorney. Tex. Code Crim. Proc. Ann. art.
42.037(k).
In this case, the State introduced several exhibits that specifically detail the
amount owed by Henninge to numerous medical providers in relation to the
injuries he sustained on April 22, 2007. According to bills introduced at trial, the
total cost of Henninge‘s medical treatment owing as a result of the injuries he
sustained was $21,541—the amount the trial court awarded as restitution. At the
sentencing hearing, there was also testimony that the bills in relation to
18
Henninge‘s injuries were delinquent and that any restitution would go to
compensate Henninge in payment of his medical expenses. Furthermore, a jury
found Sanders guilty of the assault that caused Henninge‘s injuries. See
Campbell, 5 S.W.3d at 697 (―A trial court may not order restitution for an offense
for which the defendant is not criminally responsible.‖). We hold that the record
supports the restitution ordered by the trial court. Thus, the trial court did not
abuse its discretion. We overrule Sanders‘s third point.
IV. CONCLUSION
Having overruled all three of Sanders‘s points, we affirm the trial court‘s
judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
PUBLISH
DELIVERED: May 5, 2011
19
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00221-CR
THOYS DEWAYNE SANDERS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
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DISSENTING OPINION
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I write separately because the majority appears to place a burden of proof
on Appellant. The majority appears to say, in part, that the evidence is sufficient
because ―Grauerholz‘s reaction was to immediately exclaim, ‗I can‘t believe you
hit my boyfriend.‘ And Sanders did not deny hitting Henninge.‖1 If the majority
requires Appellant to waive his Fifth Amendment right and deny the offense, I
must respectfully dissent.
1
Majority op. at 12 (emphasis added).
As to the allegations of ineffective assistance of counsel, the record
reflects that Appellant made an offer of proof that a specific witness, Jeremiah
Langen, would testify that he witnessed the event and that ―[i]t was a complete
accident.‖ Appellant argued that the failure of trial counsel to interview or call
Langen, a material witness, was deficient performance on its face.
This court abated to allow trial counsel to explain his failure to interview or
call Langen to testify. The majority states that we must presume ―that counsel is
better positioned than the appellate court to judge the pragmatism of the
particular case and that he made all significant decisions in the exercise of
reasonable professional judgment,‖2 relying on Delrio v. State, a jury selection
case questioning the wisdom of putting a particular juror on the panel.3
Here, the question is how can trial counsel justify not calling to the stand or
even interviewing a witness who saw what happened and said that Appellant
committed no assault. That is a far different issue than jury selection.
Instead of relying on caselaw that addresses jury selection, we should look
at ineffective assistance cases in which trial counsel failed to investigate and
failed to call witnesses to testify. We should not create an explanation for such
failure and put it in the mouth of the nontestifying trial counsel.
The Texas Court of Criminal Appeals has instructed us that
2
Id. at 15.
3
840 S.W.2d 443, 446–47 (Tex. Crim. App. 1992).
2
[i]n evaluating the potential impact of an alibi witness, we must also
consider the relative strength of the State‘s case. We compare the
evidence presented by the State with the evidence the jury did not
hear due to trial counsel‘s failure to investigate.4
Here, Henninge did not remember what had happened to him. Everyone
else guessed or speculated about what had happened. Only Langen actually
saw what had happened, but trial counsel did not interview him. What possible
trial strategy could involve not interviewing the only eyewitness?
Because I cannot think of any, I respectfully dissent.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: May 5, 2011
4
Perez v. State, 310 S.W.3d 890, 896 (Tex. Crim. App. 2010) (citations and
internal quotations omitted).
3
Thoys Dewayne Sanders v. State
Combined Opinion