No. 05-02-00982-CR.
Opinion Filed June 10, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199TH Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81153-01. AFFIRMED.
Before Chief Justice THOMAS and Justices MOSELEY and HADDEN.
The Honorable Roby Hadden, Former Judge, Twelfth Court of Appeals, Tyler, Texas, sitting by assignment.
Opinion By Justice HADDEN.
A jury found appellant Juan Chavez Asturias guilty of aggravated assault of a public servant and assessed punishment at five years' confinement. In two grounds, appellant alleges he received ineffective assistance of counsel and the verdict is contrary to the overwhelming weight of the evidence. We affirm the trial court's judgment.
Factual Background
The record shows the McKinney Police Department received a call reporting that, at an apartment on Main Street, someone was threatening people with knives. Officers Aaron Howell ("Howell") and Wes Mesner ("Mesner") responded to the call. Both officers were in police uniform and drove separate marked police vehicles. Upon arriving at the apartment, the officers heard a man inside yelling. Howell, standing in front of Mesner, knocked on the apartment door, identified himself and Mesner as police officers, and ordered the occupant to open the door. The door opened. Appellant stood in the doorway holding a steak knife in each hand. Appellant held the knives by their handles at face level, with the blades pointing outward toward Howell. Appellant then stepped toward Howell, raised the knives, and stated, "I'm going to fucking kill you." The officers drew their guns, pointed them at appellant, and repeatedly ordered appellant to drop the knives. When appellant finally dropped the knives, the officers arrested appellant. After his arrest and while being transported to the Sheriff's office, appellant acted violently. The officers had difficulty placing him in the police car and the jail. During this time, appellant told Howell he was going to kill Howell or "get my [appellant's] people after you [Howell]." Howell testified that during the incident, he was scared, and felt that appellant was going to stab him. The officers stated that if appellant had come any closer to them with the knives, they would have shot him. Howell testified that he was so upset by the confrontation that he was unable to write his report because his hands were shaking so badly. Appellant testified at trial. He admitted that when he first saw the two officers, he recognized them as police officers. He agreed that a knife could cause death or bodily injury. However, his version of what happened differed from the police officer's testimony. Appellant stated he had only one knife and was only trying to play a joke on a friend. He denied struggling with the officers. He also denied threatening the officers, but was only trying to apologize, and blamed the misunderstanding on his poor English. Ineffective Assistance of Counsel
In his first ground, appellant contends he received ineffective assistance of counsel. Appellant asserts counsel did not spend enough time with him before trial to enable him to make an intelligent decision between his right to trial by jury and his right to enter a guilty plea, did not sufficiently discuss his defense before trial, and that counsel prejudiced the jury by waiving his opening argument. Appellant's ground is inadequately briefed. An appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." See Tex.R.App.P. 38.1(h). Ordinarily when a party raises a point of error without citation of authority or argument, nothing is presented for appellant review. See, e.g., Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000); Walder v. State, 85 S.W.3d 824, 827-28 (Tex.App.-Waco 2002, no pet.). Here, appellant sets forth the general standards of review but makes general allegations with no analysis, no argument, and only one reference to the record. However, in the interest of justice, we will address this issue. To show trial counsel was ineffective, appellant must meet the two-prong test articulated in Strickland v. Washington, 466 U.S. 668 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms, and (2) actual prejudice from counsel's deficient performance. See id. Appellant must prove his claim by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In analyzing the claim of ineffective assistance of counsel, we begin with the strong presumption that counsel was competent and that counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Thompson, 9 S.W.3d at 813; see also Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appellant has the burden of rebutting this presumption by presenting evidence illustrating why trial counsel chose a particular course of action. See Thompson, 9 S.W.3d at 813-14. In most cases, a silent record will provide no explanation for counsel's actions or inactions and will not overcome the strong presumption of reasonable assistance. See id. In other words, appellant cannot meet his burden if the record does not provide the reasons for trial counsel's conduct. See Osorio v. State, 994 S.W.2d 249, 253 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). Appellant's claims of ineffective assistance of counsel fail because the record does not support his assertions. Nothing in the record shows how much time counsel spent with appellant discussing his defense or what advice counsel gave appellant regarding his right to go to trial or plead guilty. The record also does not show actual prejudice from counsel's allegedly deficient performance. Appellant filed a motion for new trial, but did not attempt to develop the record in that proceeding to support his allegations of ineffective assistance. The record also fails to support appellant's allegation that counsel rendered ineffective assistance by waiving his opening argument. Decisions whether to present an opening statement and what to present in that statement are matters of trial strategy. See Davis v. State, 22 S.W.3d 8, 13 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Waiving an opening statement can be a tactical decision, since such a statement might give the State a preview of the defense strategy. Standerford v. State, 928 S.W.2d 688, 697 (Tex.App.-Fort Worth 1996, no pet.). Appellant has not overcome the presumption that counsel's decision not to make an opening statement was sound trial strategy. Therefore, we conclude appellant has not affirmatively demonstrated from the record counsel's ineffectiveness. Accordingly, we overrule appellant's first ground. Factual Sufficiency of the Evidence
In his second ground, appellant asserts the verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appellant argues the evidence overwhelmingly shows that he did not intentionally or knowingly threaten a police officer because he thought the person at the door was a friend of his and he was playing a bad joke on his friend by raising the knife in a mock gesture of attack. In conducting a factual sufficiency review, we neutrally analyze all of the evidence without the prism of "in the light most favorable to the prosecution." Johnson v.State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We will reverse only if we determine the proof of guilt is so weak or the contrary proof so overwhelming that it renders the guilty verdict clearly wrong and unjust. Id. In conducting this review, we must be appropriately deferential to the fact finder's role. Thompson v. State, 93 S.W.3d 16, 21 (Tex.Crim.App. 2001), petition for cert. filed, 71 U.S.L.W. 3708 (U.S. Apr. 8, 2003) (No. 02-1579); Connor v. State, 67 S.W.3d 192, 198 (Tex.Crim.App. 2001). A person commits the offense of aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon while doing so. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon 2003). The offense is a first-degree felony if it is committed "against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty." Id. § 22.02(b)(2). In this case, when appellant opened the door, the two officers were wearing their police uniforms and were on official duties. Appellant knew Howell and Mesner were policeman. Both officers testified that appellant had a knife in each hand held face high, with the blades pointing outward toward Howell. Appellant took a step toward Howell and stated "I'm going to fucking kill you." The evidence shows the knives were capable of causing serious bodily injury or death and that Howell felt threatened with imminent bodily injury or death by appellant's conduct. Although appellant denied that he threatened the officers and offered an explanation for his conduct, the jury was free to disregard his testimony as not credible. See Lee v. State, 29 S.W.3d 570, 574-75 (Tex.App.-Dallas 2000, no pet.) (jury free to believe State's evidence over defendant's). Having analyzed all the evidence in a neutral light, we conclude the proof of guilt is not so obviously weak nor the contrary proof so overwhelming that it renders the guilty verdict clearly wrong and manifestly unjust. Therefore, the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second ground. We affirm the trial court's judgment.