No. 05-05-00902-CR
Opinion issued January 12, 2007. Do Not Publish, Tex. R. App. P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-72008-UM.
Before Justices MORRIS, WHITTINGTON, and RICHTER.
Opinion By Justice JOSEPH B. MORRIS.
In this case, David Demark Brown was indicted for aggravated assault with a deadly weapon and convicted of the lesser included offense of deadly conduct. He complains on appeal that the trial court improperly admitted a photograph into evidence and denied his motion for mistrial, the evidence against him was factually insufficient, and he received ineffective assistance of trial counsel. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
The offense in this case took place during a dispute between the complainant and her employer, who was appellant's mother. The complainant and her sister drove to appellant's mother's business to confront her about why the complainant was losing her job. They were agitated and upset. Various other people also appeared at the scene to address the situation. While the complainant and her sister were in the parking lot for the business, appellant and his brother arrived. Appellant was armed with a revolver. The complainant struck appellant with her car as he was standing in the parking lot. At approximately the same time, witnesses saw appellant shoot at the complainant's car several times. The complainant admitted bumping into appellant with her car, but she claimed she was simply trying to get away from the scene because appellant had already shot at the tires of her boyfriend's car and was pointing the gun at her. She claimed she accidentally hit appellant while she was driving with her head ducked down to avoid being shot by him. The complainant's cousin, who was also present at the scene trying to calm the parties, testified that, in his opinion, she was trying to drive away from the scene when appellant shot at her car. For the defense, appellant's mother and father testified that appellant shot at the complainant's car to prevent the complainant from hitting him with her car. All but one of the gunshot marks on the car, however, indicated that the gun had been fired as the car was driving away from the shooter. The complainant and her sister claimed the complainant's children were in the back seat of her car when appellant shot at the car. Other witnesses claimed they never saw children in the car. At the close of testimony, the jury acquitted appellant of aggravated assault and found him guilty of deadly conduct. After the State presented extensive evidence of appellant's criminal history, including two enhancement offenses, the jury sentenced appellant to thirty-seven years' confinement. Discussion
In his first three issues, appellant complains the trial court improperly admitted a photograph of the complainant's children into evidence and allowed the photograph to be exhibited before the jury. He specifically complains the evidence was irrelevant, prejudicial, and improperly exhibited due to its prejudicial nature. We initially conclude the trial court did not err in overruling appellant's objection that the evidence was irrelevant. We review a trial court's decision to admit evidence under an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005). If the trial court's decision was within the "bounds of reasonable disagreement," we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App. 2005). At trial, the complainant and her sister testified the complainant's two young daughters were in the car at the time of the shooting. Other witnesses claimed they did not see the girls in the car. The photograph showed the girls' size at the time of the offense and allowed the jury to evaluate whether the children would be visible in the car, particularly if they had ducked down when the shooting began. The trial court did not abuse its discretion in overruling appellant's objection that the photograph was irrelevant to the case. See Tex. R. Evid. 401. We resolve appellant's first issue against him. Appellant complains in his next two issues that the photograph was "prejudicial." He argues the evidence was inadmissible on this ground and that the trial court erred by allowing the State to post it before the jury. By failing to object on these bases, appellant has forfeited his right to complain of the alleged errors. See Tex. R. App. P. 33.1(a). At the time the photograph of the complainant's young daughters was admitted into evidence, appellant objected solely on the ground of relevance. Because he failed to timely object on the basis that any probative value in the photograph was substantially outweighed by the danger of undue prejudice, he may not raise that argument now. See id. Moreover, to the extent appellant's objection at trial that the photograph "once admitted, can be published, but . . . placed along with any other evidence to be considered by the jury during deliberation" amounted to a complaint that the exhibition of the photograph rendered its probative value substantially outweighed by the danger of unfair prejudice, he has forfeited that complaint as well. For appellant to complain the exhibition of the photograph was unduly prejudicial to him, he had to first object at the time it was offered into evidence that any probative value in the photograph itself was substantially outweighed by the danger of unfair prejudice. Accordingly, appellant forfeited his right to complain about the prejudicial nature of exhibiting the photograph as well. See id. We resolve his second and third issues against him. In his fourth issue, appellant complains the evidence against him was factually insufficient to overcome his claim of self-defense. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006). The jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Here, the conflicting testimony presented two versions of the events that culminated in the shooting. By the State's version, the complainant accidentally hit appellant with her car as she was avoiding being shot by him and trying to drive out of the parking lot. By the defense version, appellant shot at the complainant in an attempt to prevent her from running him down with her car. Even if appellant's version of events presents sufficient facts to mount a self-defense claim, this matter of witness credibility was for the jury to decide. Furthermore, appellant was convicted of deadly conduct, not aggravated assault. The jury in the case was instructed that if it had a reasonable doubt appellant acted in self-defense, it should acquit appellant of aggravated assault and proceed to consider whether he was guilty of the lesser included offense of deadly conduct. The application paragraph for the deadly conduct offense contained no provision for the jury to consider whether appellant acted in self-defense when he committed the offense of deadly conduct, nor did appellant request an instruction on self-defense in that context. After viewing all the evidence under the appropriate standard, we conclude the evidence against appellant was factually sufficient to support his conviction for deadly conduct. We resolve his fourth issue against him. In his fifth issue, appellant complains the trial court erred by denying his request for a mistrial. During the punishment phase of trial, the prosecutor asked appellant's mother if she was aware he had two pending forgery offenses. The trial court first overruled a defense objection to the question but then sustained the objection and instructed the jury to disregard the question and the answer. Appellant moved for a mistrial, which the court denied. We review a trial court's denial of a mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). In determining whether a trial court abused its discretion in denying a motion for mistrial during the punishment phase of trial, we consider: (1) the severity of the misconduct, (2) any curative measures taken, and (3) the certainty of the punishment assessed absent the misconduct. See Primes v. State, 154 S.W.3d 813, 815 (Tex.App.-Fort Worth 2004, no pet.). Ordinarily, a prompt instruction to disregard by the trial court will cure any error associated with an improper question, answer, or argument. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). A mistrial should be granted only when the error is "highly prejudicial and incurable." Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003). By the time appellant's mother testified at the punishment hearing, the State had already put on evidence showing his previous convictions for bribery, unauthorized use of a motor vehicle, robbery, theft of service, terroristic threat, domestic violence assault, theft by check, and possession of cocaine. The jury had already convicted him of knowingly discharging a firearm at or in the direction of the complainant. And the trial court promptly instructed the jury to disregard the question and answer about the two pending forgery cases. Under the facts of this case, the trial court did not abuse its discretion in denying appellant's motion for mistrial. We resolve appellant's fifth issue against him. In his sixth and final issue, appellant complains he received ineffective assistance of trial counsel. In particular, he points to his attorney's failure to object to testimony about his allegedly shooting out the tire of the complainant's boyfriend's car before he then starting shooting in the complainant's direction. Appellant argues this evidence was "improper testimony as to an unrelated an unduly prejudicial extraneous offense." We evaluate claims of ineffective assistance of counsel under the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both deficient performance and prejudice. An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate the claim's merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance. See id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before an appellate court may deem counsel ineffective. Id. Absent such an opportunity, we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. (quoting Garcia v. State, 57 S.W.3d 436 (Tex.Crim.App. 2001)). The record in appellant's case contains no explanation for why trial counsel refrained from challenging the complainant's testimony about appellant shooting out her boyfriend's tire before shooting at her car. We note that the complainant's boyfriend also testified about the shooting of his tire, as did a third witness who claimed appellant's brother had shot the tire. The State offered no physical evidence showing that the tire was, in fact, damaged. It is possible defense counsel surmised that conflicting evidence on the matter of the tire would call into doubt the complainant's testimony about appellant's guilt for the charged offense. It is also possible counsel had already determined the evidence was going to be admitted by the trial court as same transaction contextual evidence. We conclude that, on this record, appellant has failed to show he received ineffective assistance of counsel. We resolve appellant's sixth issue against him. We affirm the trial court's judgment.