Rosales v. State

JOHNSON, J.,

filed a concurring opinion.

I concur in the first three points of error and otherwise join the majority opinion.

In point of error one, appellant alleges that the evidence was legally insufficient to prove each and every element of the offense beyond a reasonable doubt. Specifically, he complains that the state was obligated to prove that the victim was struck *237“with a hard object the exact nature of which is unknown to the grand jury” as alleged in the indictment. He asserts that the state failed in its proof because it failed to show the grand jury used due diligence in attempting to ascertain the nature of the object in question.

In Matson v. State, 819 S.W.2d 839, 847 (Tex.Crim.App.1991), we stated that:

When an indictment alleges that the manner or means utilized to inflict an injury is unknown and the evidence at trial does not show what type of object was used, a prima facie showing exists that the object was unknown to the grand jury. [Citations omitted.] If, however, evidence at trial shows what object was used to inflict the injury, an issue is raised with respect to whether the grand jury had information, when it handed down the indictment, as to the object used. [Citation omitted.] Only in such a case, must the State prove that the grand jury did not know the manner or means of inflicting injury and that the grand jury used due diligence in its attempts to ascertain the manner or means.

See also McFarland v. State, 845 S.W.2d 824, 830-31 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). Appellant points to evidence in the record which he contends shows that the “blunt object” was a pair of pliers. The testimony appellant refers to, however, merely concerns officers’ recovery of several items used in the crime. That pliers were among the items used does not necessarily mean they were the item used to inflict the blunt force injuries. Given nothing more, the state was not required under Matson to prove that the grand jury did not know the manner or means of inflicting the injury or whether it used due diligence in its attempts to ascertain the manner or means. Nevertheless, the state did put one of the grand jurors on the stand to testify generally that the grand jury was unable to find out what object caused the blunt force injuries.

Appellant also asserts under this point that the evidence was insufficient because the indictment alleges that appellant committed capital murder “by stabbing ... FELDER with a knife and by striking [her] with a hard object ...,” (emphasis added) whereas the charge allowed conviction for stabbing Felder or striking her with an object. Appellant asserts that the disjunctive language in the charge thereby lowered the state’s burden of proof.

We have held on numerous occasions that, although an indictment may allege differing methods of committing capital murder in the conjunctive, it is proper for the jury to be charged in the disjunctive and a conviction on any method alleged will be upheld if it is supported by the evidence. White v. State, 890 S.W.2d 69, 72 (Tex.Crim.App.1994); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991), cert. denied, 504 U.S. 958, 112 S.Ct. 2309, 119 L.Ed.2d 230 (1992). A review of the evidence in the light most favorable to the verdict indicates that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Therefore, I concur in the judgment as to point of error one.

In point of error two, appellant claims that he was denied the effective assistance of counsel because his counsel wasted a peremptory strike on a veniremember he should have challenged for cause, and because he failed to object to the trial court’s charge which authorized the jury to convict appellant if he stabbed or struck the victim, whereas the indictment alleged he was guilty only if the state proved appellant stabbed and struck the victim.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (adopted by this Court in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986)), in order to prove ineffective assistance of counsel, an appellant must first demonstrate that his trial counsel’s perfor-*238manee was deficient. Secondly, he must show that his counsel’s deficient performance was so serious that it prejudiced his defense, rendering the trial unfair and the verdict suspect. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, appellant must prove that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and that this deficient performance rendered the result of the proceeding unreliable. Id, at 687-88 104 S.Ct. at 2064. There is a strong presumption that counsel’s actions fell within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. at 2065.

With regard to the “wasted peremptory,” appellant asserts that veniremember Michael Carley should have been challenged for cause because he “clearly indicated that he would improperly consider [ajppellant’s failure to testify or put on evidence.” A review of the record reveals that after the parties finished questioning Carley, the state commented that the veniremember was acceptable. Defense counsel then said that they had no legal challenge for cause and exercised a peremptory challenge. After a ten-minute break, during which time defense counsel apparently realized that he had meant to challenge Carley for cause, the trial judge called the parties together and allowed counsel to make his challenge. The judge thereafter denied the challenge. Because counsel did challenge the venireperson for cause, appellant’s assertion that he was ineffective on this basis fails.

For the reasons discussed above as to point of error one, appellant has also failed to show deficient performance of counsel for failing to object to the disjunctive wording in the jury charge. Based on the foregoing, I concur in the judgment as to point of error two.

In point of error three, appellant claims that he was denied due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and the right to the assistance of counsel under the Sixth and Fourteenth Amendments when the trial judge denied his motion to view the scene of the offense with his counsel.1 Appellant argues that the denial of his motion denied him a basic tool of his defense which would have been available were he not indigent. Appellant cites to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), to support his claim.

The defendant in Ake requested the appointment of a psychiatrist to assist the defense on the issue of his sanity at the time of the offense. The Supreme Court explained that due process requires access to the raw materials integral to the building of an effective defense. Id. at 77, 105 S.Ct. at 1093. The Court held that, while the state need not “purchase for an indigent defendant all the assistance that his wealthier counterparts might buy,” it must provide him the basic tools to present his defense within our adversarial system. Id. The Court set forth the following three factors as relevant considerations in determining what constitutes a “basic tool” and under what conditions the state is required to provide an indigent defendant with access to the tool:

The first is the private interest that will be affected by the action of the State. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.

Id. In the context of providing expert psychiatric assistance, the Supreme Court de*239voted only a paragraph to each of the first two factors. The Court stated that an individual’s interest in the accuracy of a proceeding where his life or liberty is at stake is “obvious and weighs heavily” in the analysis. Id. at 78, 105 S.Ct. at 1093. Given that the state also maintains an interest in the legitimacy of the verdict, the only interest the Supreme Court could identify that weighs against an accused’s interest in an accurate outcome is the state’s concern for judicial economy. Id. at 78-79, 105 S.Ct. at 1093-94. The Court concluded that the state’s interest in judicial economy was “not substantial, in light of the compelling interest of both the State and the individual in accurate dispositions.” Id. at 79, 105 S.Ct. at 1094.

The Supreme Court placed the greatest emphasis on the third factor, discussing the importance of psychiatric testimony in conveying to the factfinder an understanding of the defendant’s mental state and its potential impact on his behavior at the time of the crime. Id. at 79-82, 105 S.Ct. at 1094-96. The Court concluded that the risk of an inaccurate verdict was high where the defendant was not assisted by a psychiatrist to “help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses.” Id. at 82, 105 S.Ct. at 1096. The Ake Court further stated that where it is clear that the defendant’s sanity is likely to be a significant factor, “a defense may be devastated by the absence of a psychiatric examination and testimony; with such assistance, the defendant might have a reasonable chance of success.” Id. at 82-83, 105 S.Ct. at 1096. In Rey v. State, 897 S.W.2d 333 (Tex.Crim.App.1995), we extended the Ake analysis to include non-psychiatric experts.

Unlike the defendants in Ake and Rey, appellant in the instant case did not seek the appointment of an expert (e.g., a crime scene or forensic expert); nevertheless, his request can still be reviewed within the framework of the Ake decision. As discussed above, the defendant’s and the state’s interests must be factored into the analysis in each case. In this case, as in Ake, appellant, charged with capital murder, has an interest in the accuracy of the proceedings and that interest “is obvious and weighs heavily” in the analysis. The state likewise maintains an interest in the accuracy of the result, although this case also presents a heavy interest on the state’s part in maintaining public safety and keeping appellant in custody. However, given the weight of appellant’s interest in an accurate result and the fact that he could be constantly guarded during his time at the crime scene, appellant’s interest weighs somewhat more heavily than the state’s.

Addressing the third and most important consideration in the analysis, the Ake Court held that a defendant must make a preliminary showing that his sanity was “likely to be a significant factor” at trial. Id. at 74, 82-83, 86, 105 S.Ct. at 1091-1092, 1096, 1098. In Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985), the Supreme Court declined to entertain a petitioner’s Ake claim where he “offered little more than undeveloped assertions that the requested assistance would be beneficial.” See also Rey, 897 S.W.2d at 339. Here, appellant simply asserts that his presence at the crime scene might give his counsel unique insight into how events actually transpired. He presents no evidence of special expertise in crime scene analysis or knowledge of any subject which would be helpful in the development of a defensive theory. Furthermore, it is probable that any special insight he may have of the crime could be communicated to his counsel just as effectively through discussions and reviews of scene photographs and diagrams. Indeed, any communication appellant had with his counsel at the crime scene would probably not be confidential, as the demands of public safety would require an agent of the state be constantly nearby.

*240Without more, appellant has failed to make a sufficient showing that his presence at the crime scene was a “basic tool” to which he was entitled under Ake. The judge did not err in overruling appellant’s motion, and this ruling did not deprive appellant of due process and the assistance of counsel.

Based on the foregoing, I concur in the judgment as to point of error three.

. Appellant also claims that he was deprived of his rights to due course of law and the assistance of counsel “under the Constitution and laws of the State of Texas” by the denial of his motion. However, appellant fails to brief his state law claims. Therefore, I do not address them.