Opinion
No. 05-11-01026-CR
08-20-2012
JARET LEWIS JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM;
On Appeal from the County Court of Law No. 1
Collin County, Texas
Trial Court Cause No. 001-82351-2011
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Murphy
Appealing his conviction for assault causing bodily injury-family violence, Jaret Lewis Johnson contends his statement, "You bit me on my lip!" constitutes some evidence supporting his claim of self-defense and the trial court erred by refusing his jury-charge request. In three additional issues, he claims he is entitled to a new trial because the name and location of complainant's neighbor was not disclosed until trial, new evidence regarding complainant's offense involving family violence was discovered by his new counsel on appeal, and his trial counsel rendered ineffective assistance by failing to investigate that offense. We affirm the trial court's judgment.
Background
The only witness to testify at trial was the complainant, Tonya McKnight. McKnight testified that on December 31, 2010, she had been drinking with Johnson at her apartment. Johnson was McKnight's ex-boyfriend at the time, but he had been staying with McKnight for about a week because he "didn't have a permanent home and [she] felt sorry for him . . . ." She was also pregnant. According to McKnight, she and Johnson had started drinking earlier in the day, but he had left with his cousin for several hours. When he returned later in the evening, Johnson's demeanor had changed. McKnight described him as "more aggressive."
Johnson's version of events in his appellate brief differs in some respects from the trial record. Assertions in a brief not supported by the record are not considered on appeal. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985). We therefore limit our background recitation to those facts contained in the trial record.
After Johnson returned, they had been "joshing around, laughing, watching TV, and then it turned into violence . . . ." At some point, they began arguing because he wanted her to buy more beer and she refused. During the argument, McKnight was sitting on her couch, and Johnson "got on top" of her and started hitting her. McKnight testified that Johnson hit her several times in the face with his hands both opened and closed. She said she did not become aggressive with him "because it would have gotten worse, so [she] had to act like everything was okay." Shortly after the incident, McKnight got off the couch and secretly called 911.
On the 911 recording admitted into evidence, McKnight and Johnson can be heard arguing. McKnight's voice exclaims, "You hit me on my face!" Johnson's voice also exclaims, "You bit me on the lip!" McKnight testified at trial that she did not remember biting Johnson, and there is no indication on the 911 recording of when McKnight might have bitten him.
A third voice can also be heard on the 911 recording. McKnight testified that her neighbor came over shortly after Johnson hit her. She described her neighbor as a friend who would come over from time to time to check on her because she was staying alone. The neighbor and Johnson can be heard talking to each other in the background on the 911 recording. The neighbor left before the police arrived, and McKnight testified that she did not tell the police the neighbor had been there. During cross-examination, McKnight responded to questions from Johnson's trial counsel that she did not know her neighbor's last name; she only knew him as "Roosevelt." She also said he had done some repair work on her parents' cars in the past. McKnight testified the neighbor no longer lived at the apartment complex and she had not seen him since she moved.
When the police arrived, McKnight tried to open her front door. She said Johnson ran toward the door and locked it because "he heard the aggressive knock" and "knew it was the police." The officers kicked the door open, and they arrested Johnson.
Photographs of McKnight's injuries taken by the officers were admitted as evidence at trial. The pictures showed McKnight with two black eyes and facial swelling. The officers offered to take McKnight to the hospital, but she refused. When McKnight finally agreed to go to the hospital with her parents a few days later, she learned that she had miscarried. Self-Defense Instruction
Johnson first challenges the trial court's denial of his request for a self-defense jury instruction. He argues that his statement, "You bit me on my lip!" is an excited utterance that constitutes some evidence of his claim that he acted in self-defense.
We review a trial court's decision not to include a defensive issue in a jury charge for an abuse of discretion. See Love v. State, 199 S.W.3d 447, 455 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd) (citing Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. See Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). When reviewing claims of jury-charge error, we first determine whether an error actually exists in the charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists and appellant objected to the error at trial, we determine whether the error caused sufficient harm to require reversal. Id.; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988) (if error exists and was preserved, reversal required if error caused "some harm" to appellant from the error).
A defendant is entitled to an instruction on every defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of what the trial court may think about the credibility of the defense. See Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008). A trial court may refuse an instruction on a defensive theory if the issue was not raised by the evidence. See Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007); Garza v. State, 829 S.W.2d 291, 294 (Tex. App.-Dallas 1992, pet. ref'd); see also Tex. Penal Code Ann. § 2.03(c) (West 2011) (defensive jury instruction not submitted to jury unless "evidence [was] admitted supporting the defense"). A defense is supported or raised by the evidence "if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true." Shaw, 243 S.W.3d at 657-58. The question of whether a defense is raised by the evidence is a sufficiency question, which we review as a question of law. Id. at 658.
The defendant bears the burden of showing that some evidence exists to support each element of the defense. Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010); Shaw, 243 S.W.3d at 657-58. In this case, Johnson would be justified in using force against McKnight if he reasonably believed the force was immediately necessary to protect him against McKnight's use or attempted use of unlawful force. See Tex. Penal Code Ann. § 9.31(a) (Self-Defense) (West 2011).
The only evidence Johnson suggests would support a self-defense instruction is his referenced exclamation-audible on the 911 recording-that McKnight bit his lip. This utterance does not constitute evidence that his assault was immediately necessary to protect himself against McKnight's alleged use of force. The statement provides no evidence of when the bite occurred and does not indicate that Johnson struck McKnight defending himself in response to her biting him on the lip. While Johnson's statement that McKnight bit him on the lip might provide some evidence that she did bite him, it provides no evidence that Johnson assaulted McKnight in self-defense. Johnson identifies no other evidence that would support his defense. Without such proof, Johnson has failed to provide some evidence that his use of force was immediately necessary to protect him against McKnight's use of unlawful force. Accordingly, the trial court did not err in refusing Johnson's request. We overrule Johnson's first issue.
Newly Discovered Evidence
Johnson next argues that the name and location of McKnight's former neighbor was not disclosed to him or his attorney until his attorney questioned McKnight during the trial. Although the record shows that this potential witness was not present when the assault occurred, Johnson argues that the former neighbor may have had information about the demeanor and emotions of Johnson and McKnight between the time the assault occurred and the time Johnson utters, "You bit me on my lip!" Johnson asserts this information "may lead [him] to factually establish that he had not calmed down sufficiently to engage in reflective thought process and that the statement was in fact an excited utterance that shows evidence of self-defense."
Article 40.001 of the Texas Code of Criminal Procedure provides that "[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. Proc. Ann. art. 40.001 (West 2006). Under that statute, a defendant is entitled to have his motion for new trial granted if (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).
Under the first prong, Johnson must show that the newly discovered evidence was unknown to him at the time of trial. It is evident from the record, however, that Johnson was aware of the potential witness. Both Johnson and McKnight's neighbor were present at McKnight's apartment at the same time. Both can be heard speaking to each other on the 911 recording. Thus the existence of McKnight's neighbor as a potential witness cannot be considered "newly discovered." See Baker v. State, 504 S.W.2d 872, 875 (Tex. Crim. App. 1974) (concluding potential alibi witness who was with appellant cannot be considered newly discovered).
Johnson's focus on the "name and location" of McKnight's neighbor as being newly discovered during trial does not change our conclusion. We interpret Johnson's issue to mean he was unable to contact the neighbor because he was unaware of his name or location. But Johnson fails to show that his inability to obtain the name and location of McKnight's neighbor was not due to Johnson's lack of diligence. The record is silent as to any attempt to locate the neighbor. The record also does not show whether McKnight knew how to contact the neighbor-she only knew the name "Roosevelt" and had not seen him since moving from the apartment. Whatever information Johnson claims was disclosed for the first time during trial is of questionable value to Johnson's pursuit of a new trial on appeal.
Johnson's trial attorney does indicate during cross-examination that he attempted to contact McKnight before the trial, but McKnight decided not to call him back after speaking with the district attorney's office. Counsel never suggested that the purpose of the call was to get information about McKnight's neighbor.
Article 40.001 provides that "[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." Tex. Code Crim. Proc. Ann. art. 40.001 (emphasis added). By the wording of his own issue, Johnson admits that the alleged newly discovered evidence was "not disclosed to [his] trial counsel until during trial." (Emphasis added). Johnson cites no case law suggesting that evidence disclosed during a trial constitutes evidence discovered "since" trial as required by article 40.001, and we decline to adopt that interpretation.
Johnson also has failed to show that any newly discovered evidence regarding the "name and location" of McKnight's neighbor would probably bring about a different result in a new trial. See Wallace, 106 S.W.3d at 108; see also Holmes v. State, 938 S.W.2d 488, 492 (Tex. App.-Texarkana 1996, no pet.) (concluding trial court did not abuse discretion when denied new trial based on evidence discovered during the trial that was unlikely to bring about different result at trial). Johnson indicates that McKnight's neighbor's testimony "may lead [him] to factually establish" that his statement that McKnight bit his lip "was in fact an excited utterance that shows evidence of self- defense." Johnson has not explained exactly what would be accomplished by showing that Johnson's comment was an excited utterance. Typically, an excited utterance is an exception to the hearsay rule that allows the evidence to be admitted into evidence. See Tex. R. Evid. 803. But the record indicates that Johnson's statement was admitted into evidence. The statement was recorded on a 911 call that was played to the jury during the trial, and both the State and Johnson's trial counsel questioned McKnight regarding the statement. Even with this statement in evidence, we have concluded the trial court did not commit reversible error when it denied Johnson's request for a self-defense jury instruction. Johnson therefore has failed to show the neighbor's testimony is likely to bring about a different result at trial. We overrule Johnson's second issue.
Ineffective Assistance of Counsel
Johnson's third and fourth issues involve what he describes as newly discovered evidence of McKnight's prior offense involving family violence. He argues that his trial counsel rendered ineffective assistance at trial by failing to investigate and cross-examine the State's only witness, McKnight, on her prior offense involving family violence. In issue three, he argues that new evidence regarding McKnight's prior offense was discovered by his new appellate counsel and should have been submitted during trial. In issue four, Johnson argues that his trial attorney acted ineffectively by failing to request discovery on McKnight's prior criminal history or to investigate her prior history independently. Both issues are intertwined, so we address them together and interpret the claims as ineffective assistance of counsel.
To the extent Johnson's third issue is a request for new trial based on newly discovered evidence, he never raised the issue to the trial court and has not shown any of the requirements for a new trial under article 40.001. See Wallace, 106 S.W.3d at 108. He also cites no portion of the record and makes no argument that he has met the requirements. Although he attaches an appendix to his brief, materials not made a part of the record cannot be considered on appeal. Reyes v. State, 647 S.W.2d 255, 256 (Tex. Crim. App. 1983).
To prevail on an ineffective assistance of counsel claim, Johnson must show by a preponderance of the evidence both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Williams v. State,301 S.W.3d 675, 687 (Tex. Crim. App. 2009). He must demonstrate under the first prong that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88; Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). To meet the second prong, he has to show the existence of a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Ex parte Lane, 303 S.W.3d at 707. His failure to satisfy one prong negates our consideration of the other prong. Williams, 301 S.W.3d at 687.
We consider the totality of the representation and the particular circumstances of this case in deciding whether Johnson met his burden. Ex parte Lane, 303 S.W.3d at 707. We presume counsel's conduct fell within the wide range of reasonable professional assistance and do not judge counsel's actions in hindsight. Strickland, 466 U.S. at 689; Ex parte Lane, 303 S.W.3d at 707. The fact that another attorney might have pursued a different strategy at trial is not sufficient to prove counsel was ineffective. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004).
The record also must demonstrate affirmatively the deficient performance Johnson challenges. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Without evidence of counsel's considerations, we will presume sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
The State argues that Johnson has not overcome the presumption that his counsel's representation was reasonable. We agree. Johnson has failed to bring us any record supporting his claim of ineffective assistance of counsel. The record is silent as to counsel's strategy or reasoning. In most cases, a silent record will not overcome the strong presumption of counsel's reasonable assistance. See id. at 110-11. A basic corollary is that counsel should be given the opportunity to explain any actions or inactions before being adjudged incompetent. Id. at 111. This has not occurred, and Johnson has not shown that this case is one of those extraordinary situations in which the face of the record shows counsel's challenged conduct was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (citing Thompson, 9 S.W.3d at 814). We overrule Johnson's third and fourth issues. Having overruled his four issues, we affirm the trial court's judgment.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111026F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JARET LEWIS JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01026-CR
Appeal from the County Court of Law No. 1 of Collin County, Texas. (Tr.Ct.No. 001- 82351-2011).
Opinion delivered by Justice Murphy, Justices FitzGerald and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 20, 2012.
MARY MURPHY
JUSTICE