Nos. 05-04-01144-CR, 05-04-01145-CR, 05-04-01146-CR
Opinion Filed August 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 401-81850-03, 401-81851-03, 401-81852-03. Affirm.
Before Justices BRIDGES, O'NEILL and MAZZANT.
Opinion By Justice O'NEILL.
Appellant appeals his convictions for aggravated assault with a deadly weapon. After finding appellant guilty, the jury assessed punishment at ten years' confinement in each case. In six issues, appellant contends (1) the evidence is legally and factually insufficient to support his convictions, (2) he received ineffective assistance of counsel, (3) the trial court erred in overruling his objection to irrelevant evidence, (4) the trial court erred in overruling his objection to hearsay, and (5) the trial court abused its discretion in denying his motions for new trial. For the following reasons, we affirm the trial court's judgments.
The State's Evidence
At about 7:00 p.m. on February 25, 2003, the three complainants, Mark Brown, Amy Pruett and Jerry Kersting went to appellant's residence to repossess his BMW. The complainants had previously obtained a repossession order from the lien holder and notified police of the repossession. When they arrived at appellant's residence, Pruett approached appellant's front door while Brown and Kersting began hooking the BMW to their truck. Appellant came out of his house and Pruett told him they had a repossession order and they were going to take the car. Appellant asked someone in the house to get him a gun. Shortly thereafter a child handed appellant a gun. Appellant pointed the gun at the complainants and threatened to "blow their heads off." Both appellant and the complainants called police who arrived a few minutes later. Meanwhile, at appellant's direction, appellant's wife came out of the house and got in the car. Appellant admitted to police he owned a gun, but denied displaying it. The police took statements from the complainants who stated appellant had an "Uzi type gun." Police told appellant if he would show them the gun, and if it did not match the description, they would leave. Appellant refused to show police his gun. As the police were arresting appellant, his wife said she would get the gun. She then showed police a gun in a dresser drawer. The gun matched the witnesses' description. She said appellant had just put the gun in the dresser and that they usually kept it on the top shelf in the closet. Appellant gave a statement to police after his arrest. He claimed that on the night of the offense, he was watching television when his daughter told him someone was stealing their car. He said he called 911 and then told his wife to go sit in the car to prevent the thieves from taking it. Appellant denied displaying a weapon. The only witness to testify for appellant was his wife, Shelia Stephens. Shelia testified that on the night of the offense, her daughter told her someone was trying to steal her car. Shelia claimed she had heard of people stealing cars with "wreckers" before. Shelia testified she ran outside without thinking and got in the car. She later testified that she actually believed someone was trying to repossess her car. However, she testified that although they may have been a little late with their car payment, they were within their grace period. Shelia said appellant never left the house and she never saw him with a gun. The jury was charged on the defense of property. The jury, finding appellant guilty, found against him on the defensive issue. In the first and second issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. Specifically, appellant asserts the State failed to disprove he was justified in using force to protect his property. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the trier of fact may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); see also Zuliani v. State, 97 S.W.3d 589, 593 (Tex.Crim.App. 2003). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). We must, however, be appropriately deferential to the jury's findings so as to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. A person in lawful possession of property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's unlawful interference with the property. See Tex. Pen. Code Ann. § 9.41(a) (Vernon 2003). A reasonable belief is a belief that would be held by an ordinary and prudent person in the same circumstances as the actor. See Tex. Pen. Code Ann. §§ 1.07(42) (Vernon 2003). If the evidence raises defense of property, the State has the burden of persuasion in disproving the defense. See Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). The State's burden, however, is not one of production, and it need not present affirmative evidence refuting the defense. See id. Rather, the State's burden is one of persuasion, requiring the State to prove its case beyond a reasonable doubt. See id. Appellant asserts the evidence is legally and factually insufficient to support the jury's implied finding against him on the defense of property issue. To find appellant guilty, the jury was required to find, beyond a reasonable doubt, that appellant did not reasonably believe force was immediately necessary to prevent the complainants' unlawful interference with his property. According to appellant, the jury could not make this finding because the State did not present competent evidence showing the repossession was lawful. However, as noted above, the State's burden is not one of production, but one of persuasion. Further, because appellant did not testify at trial, the only evidence showing appellant reasonably believed the complainants' interference with the car was unlawful was appellant's wife's testimony that their daughter told them the car was begin stolen and that they were at most a few days behind on their car payments. The State's evidence, on the other hand, showed that on the day of the offense, the complainants, three repossession agents, went to appellant's residence with a tow truck to repossess his car. One of the complainants went to appellant's door to tell him what they were doing, to get the keys, and to give appellant an opportunity to get his personal belongings out of the car. Appellant came out of the house. After he was told the complainants had authorization to repossess the car, appellant pulled a gun on the complainants and threatened to blow their heads off. When questioned by police, appellant denied having a gun. However, police recovered a fairly unique gun from appellant's house that matched the complainants' description. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could find, beyond a reasonable doubt, that appellant did not reasonably believe force was immediately necessary to prevent or terminate the other's unlawful interference with the property. We have also viewed all the evidence in a neutral light. After doing so, we cannot conclude (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. We resolve the first and second issues against appellant. In the third issue, appellant contends his trial counsel was ineffective because he essentially admitted appellant's guilt to the jury in opening statement and closing argument. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate on appeal that: (1) his lawyer's performance was deficient, i.e. that the lawyer made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) the errors of counsel were so serious that there exists a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id. at 694; Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986). An appellant must show his counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. In his opening statement and closing argument, trial counsel argued that although the State may have proven appellant had a gun, appellant was justified because he was protecting his property. Contrary to appellant's suggestion, trial counsel did not admit appellant's guilt. Rather, he argued that even if the jury believed that he had a gun, which they certainly could from the overwhelming evidence to that effect, they should still find him not guilty because he was protecting his property. Moreover, we disagree with appellant's argument that conceding elements of the State's case is necessarily ineffective. To the contrary, such concessions can be part of a sound trial strategy. See, e.g., Hathorn v. State, 848 S.W.2d 101, 118 (Tex.Crim.App. 1992); Estrada v. State, 882 S.W.2d 21, 23 (Tex.App.-El Paso 1994, no pet.). Under the facts of this case, we cannot conclude trial counsel's argument amounted to ineffective assistance. We resolve the third issue against appellant. In the fourth issue, appellant contends the trial court erred in admitting irrelevant testimony. Officer Robert Hemmenway was the officer that found appellant's gun in the dresser. The prosecutor asked Hemmenway how he "felt" when he saw the "Uzi" at knee level. Appellant's relevancy objection was overruled. Hemmenway responded that he thought appellant did not care about the safety of children. In this issue, appellant contends the trial court erred because the officer's "feelings" about the gun were not relevant. Assuming the trial court erred in overruling appellant's objection, we conclude any error was harmless. We disregard error in the admission of evidence unless it affects the defendant's substantial rights. Tex.R.App.P. 44.2(b). Substantial rights are not effected by the erroneous admission of evidence if we have a "fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). In making this determination, we consider everything in the record, including the nature of the evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence. Id. In this case, the State presented evidence without objection that there were children in the house at the time of the offense and appellant's gun was found within reach of those children. Indeed, there was evidence a child actually handed the gun to appellant just before he threatened the complainants with it. The complained-of evidence consisted of Hemmenway's "feelings" about seeing the gun within reach of children. We conclude any incremental harm appellant may have suffered from this evidence was, at most, slight. We resolve the fourth issue against appellant. In the fifth issue, appellant contends the trial court erred in admitting hearsay. During the direct examination of Amy Pruett, the prosecutor elicited testimony that the complainants had a repossession order authorizing them to take appellant's car. The prosecutor then asked Pruett what the order recited regarding the repossession of the car. Appellant objected on the basis of hearsay. The trial court overruled appellant's objection. Pruett then responded that the order stated that appellant was in default of his contract with the lien holder of his car. According to appellant, the trial court abused its discretion in overruling his objection. Appellant asserted he was harmed because Pruett's testimony constituted the only evidence the complainants had the right to repossess the car. Error in the admission of evidence is not reversible where the same evidence comes in elsewhere without objection. Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998). Prior to Pruett's testimony, Kersting testified without objection that complainants had in their possession a "valid" order authorizing them to repossess appellant's car. Because appellant did not object to Kersting's testimony about the order, he cannot now complain of Pruett's. We resolve the fifth issue against appellant. In the sixth issue, appellant contends the trial court abused its discretion in denying his motions for new trial. Prior to trial, defense counsel had asked appellant about his prior criminal record and appellant did not mention any felony conviction. Defense counsel also reviewed the district attorney's file, which did not show any prior felony convictions. Consequently, defense counsel filed sworn applications for probation in which appellant stated under oath that he had never before been convicted of a felony. During the punishment phase, however, appellant's trial attorney and the prosecutor discovered for the first time that appellant had in fact been convicted of a felony. Defense counsel told appellant that appellant had no choice but to withdraw the application for probation and that, if he did not do so, he could be charged with aggravated perjury. Appellant withdrew the application. In this issue, appellant contends that his trial counsel was ineffective for withdrawing his applications for probation because, although he was convicted of a felony, appellant was given probation and pursuant to section 42.12, section 20 of the code of criminal procedure, he was discharged from probation and was "released from all penalties and disabilities" resulting from the conviction. See Tex. Code Crim. Proc. Ann. art. 42.12, section 20 (Vernon Supp. 2004-05). Thus, he asserts he was actually eligible for probation. Appellant has cited no case law to support his argument that he was eligible for probation despite his prior conviction. Instead, he provides an analysis of the legislative history of section 20 which he asserts shows the legislature intended a defendant who was discharged from probation and whose conviction was set aside under that section to be treated as though he had never before been convicted of a felony. However, the only case addressing this issue, Smiley v. State, 129 S.W.3d 690, 690 (Tex.App.-Houston [1st Dist.] 2004, no pet.), reached the opposite conclusion. In that case, the Houston First Court of Appeals held that a defendant who had a felony conviction that had been set aside under article 42.12, section 20 was not eligible for probation because he had in fact been convicted of a felony. Thus, whether a defendant who was discharged from probation under section 20 had a prior felony for purposes of probation eligibility is not clearly settled. A defendant does not have the right to errorless or perfect counsel. Castaneda v. State, 135 S.W.3d 719, 721 (Tex.App.-Dallas 2003, no pet.). We will not find counsel ineffective where the claimed error is based upon unsettled law. Ex parte Chandler, No. WR-60942-01, 2005 WL 858290 (Tex.Crim.App. Apr. 13, 2005). We conclude appellant has not shown counsel was ineffective for withdrawing his sworn applications for probation. We resolve the sixth issue against appellant. We affirm the trial court's judgments.