No. 05-03-00209-CR
Opinion Filed November 24, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.3.
On Appeal from the 282nd Judicial, District Court Dallas County, Texas, Trial Court Cause No. F02-52879-IS.
Before Justices FRANCIS, LANG and LANG-MIERS.
ELIZABETH LANG-MIERS, Justice.
Appellant Kunta Kinte Mathis was convicted by a jury of aggravated assault. The trial court assessed his punishment at five years in prison. Appellant complains that he did not receive effective assistance of counsel during the guilt/innocence stage of his trial. We affirm the trial court's judgment.
INEFFECTIVE ASSISTANCE OF COUNSEL Standard of Review
The standard for reviewing claims of ineffective assistance of counsel is articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the court held that the appellant must prove that counsel's representation so undermined the "proper functioning of the adversarial process that the trial cannot be relied on having produced a just result." Id. at 686; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Strickland established a two part test. First, appellant must prove that counsel's performance was deficient. Strickland, 466 U.S. at 687. In order to do so, appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, as judged on the facts of a particular case and viewed at the time of counsel's conduct. Id. at 688-90. In evaluating this standard, counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant has the burden to overcome this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). An appellate court may not reverse a conviction on ineffective assistance of counsel grounds when counsel's actions or omissions may have been based on tactical decisions, but the record contains no specific explanations for counsel's decisions. See Bone v. State, 77 S.W.3d 828, 833-37 (Tex.Crim.App. 2002). Second, Strickland requires appellant to show that counsel's performance prejudiced his defense at trial. Strickland, 466 U.S. at 692. "It is not enough for the Appellant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, he must show that there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Id. at 694. "The question is whether there is a reasonable probability that absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. As a result, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland, 928 S.W.2d at 500. Appellant's Arguments
Appellant complains that trial counsel was deficient in the following areas: 1) he failed to object to the hearsay testimony of Officer Beezley; 2) he failed to request a hearing outside the presence of the jury on the admissibility of the hearsay testimony; 3) he failed to subpoena the complainant; 4) he failed to subpoena witnesses to verify appellant's version of the facts; 5) he failed to cross examine officers about the cocaine in the apartment; 6) he failed to request a lesser included charge of assault; and 7) he failed to point out the discrepancy in the two officers' testimonies as to where the knife was found. Evidence
The state called two police officers to testify at trial. Officer Beezley testified that he responded to a call from dispatch that someone had been "cut." When he arrived at the address, he knocked several times, with no response. Finally, after fifteen minutes, he observed that someone inside the apartment was flicking the inside lights on and off. Beezley then decided to enter the premises to determine if there was anyone in the apartment who was in danger. He entered with his gun drawn, announced his presence, and asked if anyone was in the apartment. He searched the front two rooms. No one answered him. He made his way down the hallway and entered the bathroom where he saw complainant sitting on the floor. She was shaking and crying, her head was laying on the toilet seat, and blood was dripping from her hand Beezley asked her where "he" was, but complainant did not answer. The officer repeated the question, at which point complainant indicated the bedroom. When Beezley entered the bedroom, he looked under the bed and then the closet. He discovered appellant in the closet hiding under clothes and other items. He also saw a bloody knife on the dresser approximately five or six feet from the closet. When Beezley questioned complainant after locating appellant, complainant was crying and shaking, apparently still frightened and "really shaken up." She looked as though she was "scared and hiding." Officer Beezley testified that the complainant told him the following: she and appellant had been fighting because he thought she was hiding a man in the apartment. Appellant punched her several times in the face, then he grabbed a kitchen knife, held it to her throat and said, "Tell me where the men are. Tell me where the men are or I'll kill you." Complainant pushed the knife away from her throat, at which time she sliced her finger on the blade. Complainant went on to tell the officer that when the police first arrived, she was lying on the bed and appellant was pacing back and forth holding the knife. He started flipping the lights on and off and finally hid in the closet. Complainant then ran to the bathroom, where the police found her. Pictures of complainant were published to the jury. They included several of her in a bloody t-shirt and shorts. The only other evidence produced by the state was the testimony of Office Kresse, who testified that she arrived at the scene and took custody of the knife, which looked as though it had wet blood on it. Kresse stated that she found the knife on the sink in the bathroom. She did not do any tests on the knife because the investigating officer did not request any. Appellant testified on his own behalf. He stated that complainant was his girlfriend who was then living with him and his mother. He had spent the day at his cousin's house, but returned to his apartment at approximately 12:00 midnight. Because he did not have a key, he knocked on the door. No one answered. He assumed complainant was not home. Appellant played dominoes with his friends in front of his apartment in the breezeway. Approximately fifteen to twenty minutes later, complainant came to the door wearing only a robe. According to appellant, complainant's eyes were "bugged," as though she had been using drugs. Appellant began searching the apartment. He also opened complainant's robe and saw cocaine on her breasts. He knew at that point complainant had been "fornicating" and doing drugs with another man. Although he did not find the other man, the blinds in his mother's room were pulled down as if someone had hurriedly left through that window. He also found cocaine and a blade in the bedroom on the dresser. A fight ensued between him and complainant. She hit him and he hit back. Complainant then went to the kitchen and returned with a knife. Appellant struggled with her to take the knife away, at which point complainant was cut. When the police arrived, complainant told appellant to hide because she did not want him to get in trouble. Appellant explained he had served time in prison for possession of cocaine, and complainant knew he would go back to jail if the police found drugs in his apartment. Appellant testified that complainant also hid from the police. Appellant denied threatening complainant with a knife, and asserted she was cut only because he took the knife away from her in order to protect himself. Analysis
1. Failure to object to hearsay/failure to request hearing concerning hearsay. The state established that complainant's statement to Officer Beezley was more than likely an excited utterance and thus admissible. See Tex. R. Evid. 803(2). Whether trial counsel made the objection in front of the jury or in a hearing outside the presence of the jury, the testimony would still have been admissible. It is not ineffective assistance if an attorney fails to make an objection to admissible evidence. Cooper v. State, 707 S.W.2d 686, 688-89 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd). 2. Failure to subpoena complainant or other witnesses. When an appellant complains about trial counsel's failure to call certain witnesses to testify, he must show that such witnesses were available and that he would have benefitted from such testimony. Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim. App. 1986). Appellant has failed to do so. 3. Failure to cross-examine regarding cocaine. Although appellant testified he saw drugs on the dresser, there is nothing in the record to show whether the trial attorney knew, in fact, that cocaine was not present when the police arrived. If an attorney knows the answer to a question, and the answer will not help the defense, failing to ask the question is not deficient performance. See Matthews v. State, 830 S.W.2d 342, 346 (Tex. App.-Houston [14th Dist.] 1992, no pet.) ("Where an attorney's actions have a plausible basis, it cannot be said to be ineffective assistance."). 4. Failure to request charge on lesser included offense. Assuming appellant was entitled to an instruction on a lesser included offense, trial counsel could have determined it would be better trial strategy not to request it, hoping for an all-or-nothing acquittal. Wood v. State, 4 S.W.3d 85, 87-88 (Tex. App.-Fort Worth 1999, pet ref'd). With nothing in the record to tell us otherwise, we must presume this to be the case. Thompson, 9 S.W.3d at 813. 5. Failure to point out discrepancy about location of knife. The record does not reveal why counsel chose not to point out the discrepancy in the officers' testimony concerning the location of the knife. Once again, this could have been a matter of trial strategy and we cannot hold counsel's representation to be deficient simply because appellant disagrees with counsel's approach. See Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.-Fort Worth 1997, pet. ref'd) (declining to mention alleged discrepancies in the state's evidence during final argument is an inherently tactical decision). As we stated earlier, when the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude counsel's performance was deficient. See Bone, 77 S.W.3d at 833-37; Jackson, 877 S.W.2d at 772. Counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Thompson, 9 S.W.3d at 813. In the case before us, appellant has failed in his burden to rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Jackson, 877 S.W.2d at 771. Accordingly, we overrule appellant's sole issue. Finding no error, we affirm the trial court's judgment.