Opinion
No. 11-02-00096-CR.
March 20, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Dallas County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
The jury convicted Tommy Lee Alcantar of the offense of murder and made an affirmative deadly weapon finding. Appellant pleaded true to the enhancement allegation, and the jury assessed his punishment at confinement for life and a fine of $10,000. We affirm. Appellant presents three issues for review. In the first and second issues, he challenges the legal and factual sufficiency of the evidence in support of his murder conviction. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App. 2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App. 2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996). The record shows that the victim suffered six gunshot wounds and was shot from close range. The victim later died as a result of his wounds. The question in this case involves the identity of the shooter. There was one eyewitness, Uridell Johnson, who testified at trial. Johnson testified that he had given the victim marihuana in exchange for crack cocaine on the evening of the shooting. He left the apartment, walked to a nearby field, and smoked his crack cocaine. After a while, appellant and another man came walking through the field. Both had weapons and were wearing black clothes and black ski masks. When the men were in the field, appellant's ski mask was rolled up so that Johnson could see his face. Johnson watched the men and followed them from a distance. Johnson saw appellant go to the apartment where the victim was, knock on the door, ask for "Dolittle," and begin shooting as soon as the door opened. "Dolittle" then came through the window and ran away. The man with appellant stood in the breezeway and yelled, "[H]e's getting away" when "Dolittle" escaped; but the man did not fire his weapon. Willie Clark, also known as "Dolittle," testified that he and the victim were the only people in the apartment when the shooting occurred. Clark was in a bedroom resting when he heard a knock on the door. Clark heard the victim answer the door, and he heard appellant ask for "Dolittle." The victim told appellant that Clark was not there but would be back later. Clark testified that he later heard more knocking on the door and somebody mumble something. Immediately after the victim answered the door, Clark heard gunfire and dove through the bedroom window to escape. Clark did not see the shooter, and he could not identify the muffled voice at the door. Clark testified, however, that he used to sell PCP to appellant on a daily basis and that he and appellant had had an altercation earlier in the month of the shooting. The first police officer to respond to the shooting testified that, before the victim died, he gave a description of the shooter. The victim told the officer that the shooter was wearing black clothes and had something covering his face. The victim also stated that he was shot with a "Mack 10," which the officer described as a small, "hand held machine pistol-type gun." Although the murder weapon was not recovered in this case, nine .9 mm shell casings that were fired from the same semiautomatic or automatic weapon were found by the front door and in the living room of the apartment. Appellant's "jailhouse" confession was admitted over objection. Mark Anthony Thornton, a witness who was in a holdover cell with appellant on the last day of the guilt/innocence phase of appellant's trial, testified that he recognized appellant from their neighborhood and struck up a conversation about why they were in jail. Appellant said that he "killed the nigger, but they couldn't make it stick." Later, after they both returned to holdover, appellant said, "[W]ell, I'm gone to the house." The two joked about Thornton needing the same attorney as appellant. Thornton testified that he asked his attorney one question about his conversation with appellant and that, because of all the interrogation he was subjected to, he regretted ever mentioning his conversation with appellant. We hold that the evidence is both legally and factually sufficient to show that appellant committed the offense of murder as found by the jury. Eyewitness testimony showed that appellant committed the crime. Furthermore, the victim's description of the shooter matched the eyewitness's description of appellant at the time of the shooting. Witnesses placed appellant at the scene of the crime earlier in the day. Finally, a witness that was in a holdover cell with appellant testified that appellant confessed to the murder. Appellant's first and second issues are overruled. In his final issue, appellant contends that the trial court abused its discretion in overruling appellant's motion for new trial, which was based upon his assertion that trial counsel was ineffective for failing to request a continuance prior to Thornton's testimony. In order to determine whether trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). In order to assess counsel's performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel's perspective at the time. We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App. 1991). The record shows that Thornton came forward with information regarding statements that appellant had made to him while they were in a holdover cell together on the last day of the guilt/innocence phase of appellant's trial. Trial counsel was informed of the new witness and of the statements allegedly made by appellant. Trial counsel objected that he was surprised by the witness who was not on the witness list. Trial counsel requested a hearing, which the trial court held outside the presence of the jury. During the hearing, trial counsel was given "full discovery" regarding Thornton and his criminal history. Trial counsel stated during the hearing that he was "trying not to ask for a continuance here." After trial, appellate counsel filed a motion for new trial based on trial counsel's ineffectiveness. Trial counsel testified at the hearing on the motion for new trial. Trial counsel testified that he had been offered a continuance by the trial court but that he decided to go ahead with the trial. In retrospect, trial counsel thinks he should have requested a continuance. Trial counsel testified, however, that it was his trial strategy to not ask for a continuance. We hold that appellant has failed to show that trial counsel rendered ineffective assistance. Viewed from counsel's perspective at the time of trial, we cannot determine that his assistance fell below an objective standard of reasonableness. Furthermore, appellant has not shown that there is a reasonable probability that the result of the trial would have been different if counsel had obtained a continuance. Appellant's third issue is overruled. The judgment of the trial court is affirmed.