No. 10-01-269-CR.
Opinion delivered and filed June 11, 2003. DO NOT PUBLISH.
From the 82nd District Court, Falls County, Texas, Trial Court # 7549.
Before Chief Justice Davis, Justice Vance, and Justice Gray
BILL VANCE, Justice.
A jury convicted Claude Henry Hardeman of murder for the stabbing death of Benny Wade. The jury assessed punishment at fifty-five years in prison. On appeal, he complains that: (1) the evidence is factually insufficient to support his conviction; (2) the trial court erred in allowing testimony of hearsay; (3) the trial court erred in allowing an inflammatory photograph to be admitted into evidence; and (4) his counsel was ineffective for failing to object to improper impeachment of a defense witness. We will affirm the judgment.
Facts
Hardeman and Wade were at a family gathering with numerous other people. Apparently Wade heard Hardeman make derogatory comments about Dorothy Robinson which Wade then repeated to Robinson. When Robinson confronted Hardeman about the comments, he denied them and confronted Wade. At some point, Hardeman slapped Wade who slapped Hardeman back. Then Hardeman pulled out a knife and stabbed Wade once in the heart, killing him. Several eyewitnesses testified at trial, as did Hardeman, whose confession to police was also introduced into evidence. Hardeman claimed self-defense, which the jury rejected by its verdict. The record discloses the following: Vernon Prescott testified he saw Hardeman with a knife "tussling" with Wade. He testified he saw Hardeman stab at Wade three or four times as Wade was trying to get away. Wade said "he cut me" and fell to the ground.
Janice Lusk testified she saw Dorothy Robinson cursing and threatening Hardeman. Then she saw Hardeman and Wade talking. Hardeman slapped Wade who slapped Hardeman back. Hardeman then pulled a knife from his pocket. Wade backed up as Hardeman ran up to him and swung, apparently missing. Then Hardeman swung again, striking Wade in the chest.
Archie Zeno testified that Hardeman came to Zeno's house after the incident and said he had cut Wade. Zeno went to investigate and, on returning to his house, informed Hardeman that Wade was dead.
Hardeman gave a statement to police. In it he said Wade slapped him and said "come on." Then Hardeman pulled out a knife and, while Wade was backing away, Hardeman stabbed Wade "in his stomach." Hardeman said he "didn't mean to stab [Wade] because he is a friend of mine."
Hardeman testified that Wade confronted him and said "come on." Hardeman said Wade was known to carry weapons. Fearing for his safety, Hardeman pulled out a knife and stabbed Wade. Hardeman said that stabbing Wade was a reaction and that he did not intend to do it.
The knife penetrated the length of its blade — three inches into Wade.
Issue 1: Sufficiency of the Evidence
Hardeman was indicted under two theories of committing murder, and the jury was charged that it could convict him if it found the evidence supported either theory. The indictment, and the charge, tracked the language of the murder statute, which reads in part: (b) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual; [or]
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual . . .
Tex. Pen. Code Ann. § 19.02(b) (Vernon 1994). Hardeman complains that the evidence is factually insufficient to support a conviction. In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). We must view all the evidence without the prism of the "in the light most favorable to the prosecution" construct. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex.Crim.App. 2001). We must also remain cognizant of the factfinder's role and unique position — one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). Furthermore, "intent" is a fact issue which is usually established by circumstantial evidence and inferred from the acts, words, and conduct of the accused. E.g., Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998); Slomba v. State, 997 S.W.2d 781, 783 (Tex.App.-Texarkana 1999, pet. ref'd); Fitts v. State, 982 S.W.2d 175, 188 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). The uncontradicted evidence is that Hardeman pulled a knife, advanced toward Wade who was backing away, and stabbed him in the heart, killing him. The knife penetrated three inches into Wade's chest. This evidence supports a jury finding that Hardeman "intend[ed] to cause [Wade] serious bodily injury" and, by stabbing him, "commit[ted] an act clearly dangerous to human life that cause[d]" Wade's death. Hardeman's claim of self-defense and of a "reaction" was rejected by the jury according to its verdict. Reviewing all the evidence, we do not find that it "demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11. We overrule issue one. Issue 2: Hearsay
The State called Dorothy Robinson to testify. Although she arrived on the scene after the stabbing and did not see it, the State attempted to elicit testimony from her that she had started an argument involving Hardeman and Wade; she denied this. Later, to contradict Robinson, the State elicited testimony from Janice Lusk that Robinson was cursing and threatening Hardeman. Hardeman objected that this was hearsay. The State responded that it was impeaching Robinson with a prior inconsistent statement. Tex.R.Evid. 613(a). Hardeman's complaint on appeal is that the only reason the State called Robinson was so that it could call Lusk to give hearsay testimony under the guise of impeaching Robinson with a prior inconsistent statement. Hardeman cites a recent ruling from the Court of Criminal Appeals that a party may not call a witness to "set up" a situation so that otherwise inadmissible testimony may be introduced under the pretense of impeaching another witness's testimony. Hughes v. State, 4 S.W.3d 1 (Tex.Crim.App. 1999). But the Court held that, under the plain language of Rule of Evidence 607, a party may impeach its own witness. Id. at 5; Tex.R.Evid. 607 (discarding the "voucher rule"). Whether the State had knowledge that its witness would testify unfavorably is a factor in an analysis under Rule of Evidence 403. If the court concludes that the State is offering the impeachment evidence for the primary purpose of placing otherwise inadmissible evidence before the jury, it should exclude the evidence. Id.; Tex.R.Evid. 403. That is because the State profits from the witness's impeaching testimony only if the jury misuses the evidence by considering it for its truth. Consequently, any probative value the impeachment testimony may have is substantially outweighed by its prejudicial effect. Hughes, 4 S.W.3d at 5; Tex.R.Evid. 403. Hardeman's argument fails because he objected in the trial court to "hearsay," not to a Hughes violation. Thus he did not preserve a Hughes complaint for appeal. Tex.R.App.P. 33.1(a). We overrule issue two. Issue 3: Admission of a Photograph of the Corpse
Hardeman complains about the admission of a photograph during the guilt-innocence phase of Wade's torso, arms, and head which showed some tubes coming from his mouth and arm. Hardeman says it was irrelevant and was intended to inflame the jury. The admissibility of a photograph is within the discretion of the court and is reviewed for abuse of discretion. Kelley v. State, 22 S.W.3d 642, 644 (Tex.App.-Waco 2000, no pet.). And we will not find error in a trial court's ruling unless the ruling falls outside "the zone of reasonable disagreement." Narvaiz v. State, 840 S.W.2d 415, 429 (Tex.Crim.App. 1992) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (opinion on reh'g)). First, the trial court must determine if the photograph is probative of some relevant fact. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). Here, the photograph accurately depicted the nature and extent of the injuries, which is probative both of the nature of the incident and of Hardeman's claim of self-defense and a "reaction." Second, the trial court must decide whether the probative value is substantially outweighed by the danger of unfair prejudice. Salazar v. State, 38 S.W.3d 141, 151 (Tex.Crim.App. 2001). Some of the factors the court should consider are "the number of photographs, the size of the photograph, whether it is in color or black and white, the detail shown in the photograph, whether the photograph is gruesome, whether the body is naked or clothed, and whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the appellant's detriment." Reese, 33 S.W.3d at 241; Chamberlain v. State, 998 S.W.2d 230, 237 (Tex.Crim.App. 1999). This color photograph was taken of Ward lying on the ground at the scene, unclothed from the waist up. It shows plastic tubes coming from his mouth and arm. There is some blood on the torso, but the photograph is not especially bloody or gruesome. Considering the Reese factors, the probative value was not substantially outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion in admitting the photograph. We overrule issue three. Issue 4: Ineffective Assistance of Counsel
The defense called Mel Davis as a witness to contradict Janice Lusk who had denied meeting Hardeman through Davis. Hardeman complains of ineffective assistance of defense counsel for failing to object to the State's impeaching Davis with the fact that he was, at the time of trial, serving a term of deferred-adjudication community supervision for a drug-related offense. Texas courts follow the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was so inadequate as to be in violation of the Sixth Amendment right to effective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Appellant must show: (1) counsel's assistance fell below an objective standard of reasonableness, and (2) counsel's deficient assistance, if any, prejudiced the defendant. Id. (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). This two-pronged test is the "benchmark for judging whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result." Id. at 812-13 (citing McFarland v. State, 845 S.W.2d 808, 843 (Tex.Crim.App. 1992), quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2064). The issue is whether "the conviction resulted from a breakdown in the adversarial process that renders the result unreliable." Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App. 1993) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). Appellant must prove ineffective assistance by a preponderance of the evidence. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813. A witness may not be impeached under Rule of Evidence 609 with evidence of a deferred-adjudication, because that is not a conviction. Tex.R.Evid. 609; Jones v. State, 843 S.W.2d 487, 496 (Tex.Crim.App. 1992); Juneau v. State, 49 S.W.3d 387, 389-90 (Tex.App.-Fort Worth 2000, pet. ref'd). However, we cannot determine from this record whether or not trial counsel's decision not to object was part of some strategy. As the Court of Criminal Appeals has explained, the Strickland test requires us to find evidence in the record that there is, in fact, no plausible professional reason for a specific act or omission, and speculations about trial strategy will not suffice. Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003); Bone, 77 S.W.3d at 836. Applying Bone, the record does not support a finding that trial counsel's failure to object fell below an objective standard of reasonableness. Even if we had made that finding, the complaint would fail under the second prong of Strickland, i.e., whether counsel's inaction prejudiced Hardeman. Thompson, 9 S.W.3d at 812. This second prong of Strickland — "prejudice" — is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. Appellant is not required to show that the errors "more likely than not" altered the outcome. Strickland, 466 U.S. at 693, 104 S.Ct. at 2068. "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Id., 466 U.S. at 694, 104 S.Ct. at 2068. Whatever probative weight Davis's testimony may have had, in the face of the other evidence that Hardeman committed the offense, we do not find that the result of the trial was rendered unreliable by defense counsel's failure to object. We overrule issue four. Conclusion
Having overruled Hardeman's issues, we affirm the judgment. Affirmed