Opinion
No. 14-06-00047-CR
Opinion filed February 20, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 337th District Court Harris County, Texas, Trial Court Cause No. 1034431.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Appellant, Rickie Jerome Cooper, appeals his conviction for the felony offense of aggravated assault. Appellant was found guilty in a bench trial and sentenced to confinement in the state penitentiary for a term of seven years. In three points of error, appellant argues: (1) the evidence was factually insufficient to support a finding of guilt; (2) the record fails to provide proof he waived, in writing, his right to a trial by a jury; and (3) his counsel rendered ineffective assistance. We affirm. Appellant bought two pit bull dogs from Willie Coleman, approximately four or five years before the alleged assault. The dogs died of parvo. Appellant sought a return of the $500 he paid for the dogs. Appellant and Coleman had an ongoing series of altercations over the money. Once, appellant confronted Coleman while both were incarcerated in the Harris County jail. Later, appellant broke out a window of Coleman's vehicle. On July 2, 2005, appellant, Coleman, and Coleman's brother, Chris, met each other at a local barber shop. A dispute erupted, and appellant left the barber shop for 20 to 30 minutes. During this hiatus, appellant made two phone calls — one to Kevin Davis, also known as "K.K.," and the other to Al Vester, also known as "Papa," because he was uncomfortable confronting Coleman by himself with Coleman's brother present. Appellant returned to the barber shop with Vester who attempted to mediate the dispute. However, as the encounter became more heated, Patrick Myles, a barber, told appellant, Coleman, Chris, and Vester to "take it outside." After a heated exchange in the parking lot, Coleman said he turned to leave and was immediately shot by appellant. The bullet entered Coleman's left buttock, passed through his genitalia, into his right thigh and out the front. Appellant went to his truck where his girlfriend, Quieteller Smith, was waiting. They left the scene without calling 911 or the police. Appellant and Smith drove to "Skinny Man's" house, and subsequently returned home. Appellant claimed self-defense and alleged Coleman brought the gun to the barbershop. Coleman testified that appellant brought the gun and shot him over the disputed debt. In his first point of error, appellant contends the evidence is factually insufficient to support his conviction. In conducting a factual sufficiency review, we view the evidence in a neutral light and will set aside the verdict only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). A clearly wrong and unjust verdict occurs when the finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App. 2005). We must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the trier of fact reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). There are two ways in which the evidence may be insufficient. Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be evidence both supporting, and contrary to, the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met and the guilty verdict should not stand. Id. If there is evidence that establishes guilt beyond a reasonable doubt which the trier of fact believes, the judgment cannot be reversed on sufficiency of the evidence grounds. Wicker v. State, 667 S.W.2d 137, 143 (Tex.Crim.App. 1984). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The evidence deemed most important to appellant appears to be the Emergency Medical Services ("EMS") report, the shorts placed into evidence, and the conflicting testimony. Appellant contends the EMS report is consistent with his testimony and not Coleman's. The EMS report states that Coleman told the paramedics that "a friend that he had a falling out with walked up and shot him close range with a 9mm gun." Coleman testified it was the paramedics who said it looked like a 9mm gunshot at close range. Coleman said he did not know what caliber of gun was used. Coleman further testified appellant was eight or nine feet from him when he was shot. The trial judge pointed out that "close range" was not an exact measurement, and certainly eight or nine feet would be within "close range." Appellant also claims the entry/exit pattern described in the EMS report is not consistent with a shot fired from eight or nine feet away. The EMS report states that the bullet entered, "hitting pt in left buttox [sic], and exiting right leg." During trial, appellant demonstrated with his attorney the alleged struggle with the gun. Appellant claimed he was facing Coleman when the gun fired, while they "tussled." However, the entry/exit pattern is not consistent with appellant's testimony that he and Coleman were facing each other and "tussling" when the gun went off. Before appellant closed, the trial court examined the EMS report. The trial court asked appellant's attorney how, if appellant and Coleman were facing each other as appellant demonstrated, Coleman could be shot from behind. Appellant's attorney had no explanation. The trial court pointedly observed it would be very difficult for appellant to shoot Coleman in the buttock while they faced each other. Appellant next argues that the State did not contradict the defense evidence concerning the particular black shorts appellant claims he wore the day of the incident. Appellant contends this is important because the shorts he placed into evidence did not have a pocket large enough to hold a gun. Myles and Coleman each testified they could not remember what kind of shorts the appellant was wearing. However, Myles, the only disinterested witness, repeatedly testified appellant had a large lump in his pocket that he feared was a gun. Coleman testified appellant brought the gun that was used against him. Finally, appellant contends that conflicts between Coleman's testimony and the testimony of other witnesses renders Coleman's testimony unreliable. For example, Coleman testified appellant was in the barbershop when he arrived. Myles stated, however, that appellant arrived after Coleman did. Appellant claims this discrepancy shows Coleman's testimony was "unreliable." However, appellant's own testimony confirms much of Coleman's testimony. Appellant testified that he left the barber shop and returned with Vester. Thus, on this point, the alleged "conflict" in the testimony seems superficial at best. Further, appellant's brief ignores the inconsistencies in appellant's own testimony, as well as those in the testimony of other defense witnesses. Smith testified she was with appellant all day. Smith stated she did not call the police because appellant was not hurt and had committed no crime. On cross examination, Smith testified she and appellant drove to Skinny Man's house. She further testified that appellant never told her Coleman had pulled a gun on him. Smith stayed in the truck while appellant went into the house for about thirty minutes, and when appellant returned, Smith asked him if he was okay. When the State's attorney asked her why she asked that, Smith replied "because he could have been shot." The State's attorney reminded Smith she testified she did not call the police because appellant had neither been hurt nor had he committed a crime. Appellant testified Davis arrived at the barbershop before Coleman came out of the barbershop and before Vester arrived. Davis, however, said he arrived just as Coleman was shot and that he promptly left the scene. Finally, appellant testified he stayed at the barbershop because he thought he was going to get paid. Appellant then testified he stayed to fight because he wanted justice. Thereafter, appellant testified he stayed because he wanted a chance to hit Coleman, although he knew fighting would violate his parole. Appellant, Smith, and Davis all testified Coleman and appellant were "tussling" when the gun went off. However, Coleman testified he and appellant never physically fought. Coleman testified that prior to being shot, he was standing by the hood of his car, and appellant was behind him by the trunk. Coleman also testified he told appellant he was through talking, and as he turned away, someone said "Will." He heard the gunshot, and looked towards appellant before falling to the ground. Thus, part of appellant's testimony supports Coleman's version of the facts. Appellant testified that when he went outside immediately before the shooting, "they all three like go by Will's car; and that's when I go in behind them." Myles testified he heard the gunshot approximately one minute after Coleman had left the barbershop. Appellant's time-delay was longer, to account for the eruption of a fight. It is within the province of the trier of fact to resolve any conflicts and inconsistencies in the evidence. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). The conflicts recited above were within the province of the trier of fact to resolve. Moreover, the trier of fact is the sole judge of the credibility of the witnesses and is free to believe or disbelieve all, part, or none of any witness' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). A decision is not manifestly unjust merely because the trier of fact resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410. Accordingly, we overrule appellant's first point of error. In his second point of error, appellant contends his conviction must be overturned because the record does not contain a written waiver of his right to a jury trial in accordance with Article 1.13 of the Texas Code of Criminal Procedure. This issue was addressed by the Court of Criminal Appeals in Johnson v. State, 72 S.W.3d 346, 349 (Tex.Crim.App. 2002). There, as here, the judgment of the trial court contained a recitation of a waiver of a jury trial. The court held that a such a recitation is generally sufficient. Id. The Court stated it must be presumed that the recitation in the judgment is binding in the absence of direct proof of falsity. Id. Johnson merely argued, as appellant does here, that there was no written jury waiver, not that he did not waive his rights. Id. at 348. The court found such omission to be a statutory error, not a constitutional one. Id. Therefore, the court stated the harm must be analyzed under Texas Rule of Appellate Procedure 44.2(b). Id. The Court found although Article 1.13(a) was violated, Johnson was not harmed because the record contained a recitation of waiver in the judgment. Id. at 349. While appellant contends the error here is of constitutional magnitude, we cannot distinguish the case before us from the facts and circumstances presented in Johnson. Accordingly, we analyze harm under Rule 44.2(b). If the error does not affect substantial rights, it must be disregarded. TEX. R. APP. P. 44.2(b). The judgment states appellant waived a trial by a jury. Appellant never alleged he did not know about his right to a jury trial, nor that he did not agree to a bench trial. Having no evidence in the record that the judgment's recitation that appellant waived a trial by a jury is false, we are bound by that statement. Accordingly, we overrule appellant's second point of error. In his third point of error, appellant contends his attorney provided ineffective assistance of counsel. To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 688-92 (1984). Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show trial counsel's performance was deficient. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208-09 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Here, appellant argues he received ineffective assistance of counsel because trial counsel failed to object to the introduction of extraneous offenses during the cross-examination of appellant. There was no motion for a new trial, and no affidavit from trial counsel appears in the record to overcome the presumption of reasonable performance. Thus, appellant fails the first prong of the Strickland test, and we overrule his third point of error. Having considered and overruled appellant's three points of error, we affirm the judgment of the trial court.
Affirmed.
Chris did not testify because he was shot and killed prior to the trial.
Coleman testified he thought "Papa's" name is Al Vester. Appellant testified "Papa's" name is Nathaniel House. Both agree he is known as Papa.
Smith only knew the man as "Skinny Man." In his testimony, appellant identifies Skinny Man as Chris Hawkins.
Much of the testimony given on direct and cross-examination of various witnesses concerned the locations of people and vehicles in the parking lot at the time of the incident or courtroom demonstrations. Testimony often consisted of pointing on various photos used as evidence to show the locations or live demonstrations. The trial judge, however, was in a position to see and appreciate the photos, gestures and demonstrations.
Additionally, Smith testified appellant told her he was going to fight when he called her. Smith's earlier testimony insisted she was with appellant all day, and she went with him to the barber shop. It is unclear from this testimony when appellant called Smith to tell her he was going to fight.
"They all three" refers to Coleman, Chris, and Papa.
Article 1.13 of the Texas Code of Criminal Procedure reads, in the pertinent part:
a) The defendant in a criminal prosecution for any offense other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.
TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (Vernon 2005).
Appellant cites Meek v. State to assert the waiver error is constitutional, not statutory, and, therefore, must be overruled unless this court determines the error did not contribute to his conviction or punishment. 851 S.W.2d 868, 870-71 (Tex.Crim.App. 1993). In Meek, the appellant effectively objected to the accuracy of the judgment by his request for a remand pursuant to Rule 55 of the Texas Rules of Appellate Procedure, and obtained a hearing on the issue of the written jury waiver. Id. at 870. The record was developed and evidence was admitted disputing the judgment's statements that a waiver was signed by the appellant. Id. This is not our case. Here, appellant first objected to the lack of written waiver on appeal. The Texas Court of Criminal Appeals stated the Meek opinion was fact specific. Id. The court distinguished the Meek opinion from others holding the absence of a written jury waiver from the record on direct appeal did not overcome the presumption of regularity and truthfulness of the judgment where there was no objection to the accuracy of the judgment, and no affirmative showing in the record that a written jury waiver was not executed by the defendant. Id. "We note that our opinion here turns upon the fact that there was evidence that appellant did not sign the jury waiver as required by article 1.13. We do not intend that this opinion necessarily extends to violations of other requirements of article 1.13 . . ." Id. at 871, n. 6. (emphasis added).
A girlfriend charged appellant with pulling a gun on her, and assault. The charges were dismissed.
The State introduced these same offenses during Smith's cross-examination. Appellant's counsel timely objected. The State contended it offered the offenses in rebuttal to character evidence introduced by appellant. Appellant's objection was sustained. However, the trial court allowed the State to rephrase, and Smith to answer. Even assuming appellant's assertion that counsel needed an additional objection during appellant's cross-examination is correct, he must show, as part of his claim, the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex.Crim.App. 2003). Under Rule 405(a), inquiry into specific instances of conduct are allowed during cross-examination, where opinion or reputation testimony as to character has been admitted. TEX. R. EVID. 405(a). Defense witnesses testified appellant was a nonviolent person and each witness claimed to have never seen appellant with a gun. Appellant testified during cross-examination that he does not carry guns and is not a violent man. Thus, appellant has failed to show the references to the extraneous offenses were inadmissible.