Opinion
No. 05-04-00620-CR
Opinion issued April 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00121-KN. Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
OPINION
At his trial, Donald Wayne Cooks was convicted of deadly conduct in the shooting of a homeless man. The homeless man did not testify at appellant's trial. Appellant now contends in two issues on appeal that the trial court violated his right to confront the witnesses against him and that he received ineffective assistance of counsel. We conclude appellant's issues are without merit and affirm the trial court's judgment. In his first issue, appellant contends the trial court erred by allowing the State to elicit evidence in violation of his constitutional right to confront the witnesses against him. During the State's case-in-chief, two police officers testified about what the complainant had told them. The first officer testified, with no defense objection, that the complainant was "very shaken. He had just been fired at . . . six times, and he was visibly shaken." A second officer later testified that the complainant "was sitting on a curb just shaking. He was so nervous. And he said he had been shot at." Defense counsel immediately objected to the statement on the ground that the testimony was hearsay. The trial court sustained the objection and instructed the jury to disregard the officer's answer. That same officer testified, without defense objection, that he was present when the complainant identified appellant without hesitation as the man who shot at him. An investigator for the district attorney's office testified that he had searched thoroughly but had been unable to locate the complainant to testify at trial. At the conclusion of the State's case-in-chief, defense counsel moved for a directed verdict. Counsel argued, in part,
. . . there's a complaining witness, and we just heard testimony that there's been an effort to locate him, but . . . we've heard nothing from that complaining witness as to any facts or any circumstances that may be germane to this situation. It denies . . . my client . . . his right of confrontation of this witness.And we would further move and ask that this matter be dismissed based on the failure of the State to . . . produce a complaining witness where it denies my client his right of confrontation of the complaining witness in this case. The Confrontation Clause of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him." U.S. Const. amend. VI. Nevertheless, a failure to object at trial waives even constitutional error. Crawford v. State, 139 S.W.3d 462, 464 (Tex.App.-Dallas 2004, pet. ref'd). A defendant waives his constitutional right to confront witnesses if he does not timely object at trial. See id. Here, appellant did not timely object to the statements he now complains violated his rights under the Confrontation Clause. Accordingly, he has waived his right to complain of this alleged error on appeal. See id.; see also Tex.R.App.P. 33.1(a). We resolve appellant's first issue against him. In his second issue, appellant complains he received ineffective assistance of counsel. He specifically complains counsel failed to present character witnesses for him at the punishment hearing. At the punishment hearing, appellant entered pleas of true to two enhancement offenses, which made the punishment range for his offense confinement for twenty-five years to ninety-nine years or life. See Tex. Pen. Code Ann. §§ 12.42(d), 22.05(e) (Vernon 2003). Sakenia Beaty, appellant's former girlfriend and the mother of his two children, was compelled to testify by a State subpoena. She stated that appellant was a "drunk" who had, on one occasion, choked her, pulled her hair, and cut off her hair with a knife. He threatened her with the knife and ripped her shirt and bra. Another time, appellant hit her in the face with his fist so hard that she blacked out. On cross-examination, Beaty admitted that there were times that she and appellant had a "very good relationship." She stated that he loves his children very much and provided for them and her. Beaty stated that she did not want to see appellant go to the penitentiary and hoped he could get help for his drinking problem. She said that appellant "is overall a very good person, and he'll help anybody." A police officer who arrested appellant following one of the assaults against Beaty testified that, at the time of the arrest, he found keys to a stolen Ford Explorer in appellant's pocket. The officer found the Explorer in the apartment complex where appellant lived. The officer confirmed that the vehicle in fact was stolen. On cross-examination, the officer admitted that appellant told him he had purchased the vehicle. The officer further admitted that, although in many stolen vehicles the steering column is broken, the steering column was not broken on this vehicle. On redirect examination, the officer testified that, despite the fact the Explorer was worth $6,000, appellant told him he paid approximately $300 for it. Through fingerprint evidence, the State linked appellant to convictions for several offenses. The offenses included the two enhancement offenses of unauthorized use of a motor vehicle. Appellant also had been convicted of violation of a protective order, three offenses of evading arrest or detention, possession of marijuana, and attempted robbery. The defense did not put on any witnesses at punishment. The jury assessed appellant's sentence at forty years' confinement. Afterward, appellant filed a motion for new trial alleging that he received ineffective assistance of counsel because his trial attorney had failed to call punishment witnesses on his behalf. The trial court conducted a hearing on appellant's motion. At the hearing, appellant testified that he had asked counsel if he was going to call character witnesses at punishment, and counsel told him they were going to call only one witness. That witness testified for the State during the guilt-innocence phase of trial. Appellant did not recall telling the trial judge before his trial that he wanted Beaty to testify, but he did recall asking the judge if he could have the complainant at trial. Appellant said that he had asked his trial attorney if his mother, father, and sisters could be at his trial. He claimed he gave the attorney his parents' phone numbers and his sisters' names and contact information. Appellant stated that he had asked his attorney if Beaty could testify for him, and he admitted she had testified at his trial. He also stated that he had asked his attorney to call Patricia McAdams to testify for him. McAdams testified at the hearing on appellant's motion for new trial that she had been appellant's neighbor for at least four years and that, in her opinion, he was "very honest." McAdams testified that appellant's attorney never said a word to her, but she would have testified on appellant's behalf if asked. McAdams admitted she had been present when appellant had cut Beaty's hair off with a knife. Appellant's niece Laquita Cooks testified as well. She said appellant was her favorite uncle and was very honest with her. She said, "About other people, I can't tell you, but to me, he didn't lie." She claimed she would have testified for appellant if she had been asked. Appellant admitted that he had not told his attorney he wanted the niece to testify. Also at the hearing, the State admitted into evidence an affidavit from appellant's trial attorney. It states, in pertinent part,
I represented the above named Defendant in trial before a jury on March 22, 2004 through March 25, 2004. Prior to the trial date my client . . . and I discussed potential witnesses for his defense. The main witness that Mr. Cooks wanted was Carl Eric Wynn for his case in chief. We also discussed his wife, Sakenia Beatty [sic], who was a complaining witness in another case pending against the said defendant. Ms. Beatty [sic] did testify in the case in chief even though she was called by the State, she was able to give testimony that was beneficial to the Defendant. The only other witness [appellant] wanted to testify was . . . the complaining witness in the above reference[d] case.The trial court denied appellant's motion for new trial. Appellant now contends he received ineffective assistance of counsel because counsel failed to interview potential character witnesses before trial and to have favorable character witnesses present to testify at his punishment hearing. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claims, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). In addition, because the trial court ruled on appellant's ineffective assistance claim by denying his motion for new trial after a hearing, we review his claim through the prism of an abuse of discretion standard. See State v. Gill, 967 S.W.2d 540, 542 (Tex.App.-Austin 1998, pet. ref'd). We view the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against appellant were made against him. See Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). We defer to the trial court's ruling to the extent that any reasonable view of the record evidence will support it. See id. at 210. Here, the only people appellant claimed he told his attorney he wanted to testify at punishment were his parents, his sisters, and Patricia McAdams. He claimed he also wanted his niece to testify on his behalf, but he acknowledged he had not told counsel about her. An appellant may base an ineffective assistance claim on his attorney's failure to present witnesses only if the appellant can show that the witnesses were available and their testimony would have benefitted him. Johnston v. State, 959 S.W.2d 230, 236 (Tex.App.-Dallas 1997, no pet.). Appellant failed to show that his parents or sisters were even available to testify on his behalf. By the testimony of McAdams and his niece at the motion for new trial hearing, appellant established only that they would have been available to testify at his trial and were willing to testify that he was honest and a good uncle. Of course, McAdams might have also testified that she saw appellant cut off Beaty's hair with a knife, and the niece might have also testified that she was unsure if her uncle was as honest with other people as he was with her. By the time of his punishment hearing, appellant had been convicted of shooting at a homeless man. The State put on evidence showing appellant had extensive previous convictions. The State also showed appellant had assaulted the mother of his children. Although the jury could have sentenced appellant to confinement for ninety-nine years or life, it sentenced appellant to forty years. The minimum sentence in the case was twenty-five years. In light of these facts, we conclude the trial court did not abuse its discretion in denying appellant's motion for new trial. We resolve appellant's second issue against him. We affirm the trial court's judgment.