Opinion
No. 05-05-00653-CR
Opinion issued July 10, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd District Court, Dallas County, Texas, Trial Court Cause No. F04-01519-JW. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
OPINION
Jerry Webster appeals his aggravated assault conviction. A jury convicted appellant, and the trial judge sentenced him to thirty years' confinement. In three issues, appellant argues the evidence is factually insufficient to prove he committed aggravated assault or that he used a knife, and he received ineffective assistance of counsel. We affirm the trial court's judgment. A little after midnight on April 21, 2004, fifteen-year-old Anthony Chew was working on a car out in front of his house. Appellant approached Chew and asked if he wanted to rent appellant's truck. Chew had, on a prior occasion, paid appellant for a ride to Chew's cousin's house. Chew said he did not want to rent the truck, but he did want a ride to the store. Appellant agreed, and Chew got in the truck. Appellant stopped at a motel and went inside for a few minutes before driving to a gas station. Chew went inside the store, and appellant pulled around to the gas pumps. When Chew came out of the store, he was "putting [his] money back in order," and he gave appellant five dollars "to put in the gas tank." Appellant could see that Chew had about $400. Chew was "rolling up a blunt" as appellant went in the store. When appellant came back out, they drove away. Chew was smoking and looking out the window when he felt appellant start stabbing him. Chew tried to defend himself, but appellant stabbed him three times before Chew was able to climb out the truck window. Chew never saw the weapon appellant used. When he stood up outside the truck, Chew's "whole shirt was bloody." Chew saw appellant making a U-turn to come back toward him, and he ran through several back yards before he saw a car with someone he recognized in it. Chew said "the crackhead had stabbed me," and the man called 911. Chew lost consciousness and was taken to the hospital where he was treated for "about a month and a half" for his injuries. Chew's injuries required open-heart surgery because appellant had stabbed him in the heart, and his lungs collapsed as a result of his injuries. Chew was able to describe appellant to police, but he did not know appellant's name. After Chew's release from the hospital, he saw appellant driving by in a van, and he wrote down the license number of the van. Chew told his mother, who called the police. Chew subsequently identified appellant in a photographic lineup, and appellant was charged with aggravated assault. A jury convicted appellant, and this appeal followed. In his first and second issues, appellant argues the evidence is factually insufficient to show he committed aggravated assault or that he used a knife against Chew. Instead, appellant argues, the evidence showed he acted in self defense and there was no evidence he used a "knife" as alleged in the indictment. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). 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.). The factfinder is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). Appellant argues that the evidence does not support his aggravated assault conviction but instead shows he acted in self defense. Appellant relies on his own testimony that Chew flagged him down, had him drive to a motel and a store, "started talking crazy," threatened appellant, and "made a motion inside his jacket." Appellant testified he "hit brakes and slung [Chew] to the windshield" and "leaped over him and that's when we started tussling, and [appellant] had a cut right in the palm of [his] hand." According to appellant, Chew then "went out of the window and started running." In contrast, Chew testified appellant stabbed him three times, and Chew's medical records show he received three wounds, including a stab to his heart which required open heart surgery. As to the weapon that was used, appellant's own voluntary statement indicates that the weapon Chew pulled out of his jacket "turned out to be a knife." Under these circumstances, we conclude the evidence was factually sufficient to show appellant committed aggravated assault on Chew and that he used a "knife" as alleged in the indictment. See Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first and second issues. In his third issue, appellant complains his trial counsel was ineffective in failing to object to the prosecutor's statement that appellant "knew [he] had beat [his] wife that night and stolen her truck and that's why [he was] not going home. . . ." We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. The record in this case is silent as to trial counsel's strategy in failing to object to the prosecutor's reference to appellant's having beaten his wife and stolen her truck. In fact, the record shows appellant's counsel, prior to the prosecutor's statement, successfully objected to the admissibility of evidence of this extraneous matter. However, appellant has failed to rebut the presumption that it was a reasonable decision to avoid objecting to the prosecutor's later reference to the matter. See id. at 814. Further, we cannot conclude a reasonable probability exists that, but for trial counsel's failure to act, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Under the facts and circumstances of this case, we cannot conclude appellant received ineffective assistance of counsel. We overrule appellant's third issue. We affirm the trial court's judgment.