Opinion
NO. 09-11-00274-CR
05-16-2012
TERRY LEE PIASECKI, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 11-03-02382-CR
MEMORANDUM OPINION
Following a jury trial, appellant, Terry Lee Piasecki, was convicted of sexual assault, aggravated assault with a deadly weapon, and robbery. Piasecki was sentenced to concurrent life sentences for each offense. On appeal, Piasecki argues that the trial court abused its discretion in admitting certain evidence, that the evidence was legally insufficient to support his conviction for robbery, and that he was provided ineffective assistance of counsel. After considering the arguments and authorities of counsel and a review of the record of the trial proceedings, we affirm the judgment of the trial court.
BACKGROUND
In July 2010, Piasecki's girlfriend, C.D., told Piasecki she wished to end their relationship. C.D. testified that Piasecki called her twenty-six times the following day. C.D. eventually answered the phone and talked to Piasecki who told her he had her "cell phone bill money." C.D. agreed to meet Piasecki so she could get the money for the bill. According to C.D., a friend dropped Piasecki off at a local convenience store where she was waiting for him. Thereafter, C.D. and Piasecki left together to go pick up C.D.'s daughter at a friend's house.
C.D. testified that while she was driving, Piasecki demanded that she give him her cell phone and physically assaulted her. According to C.D., Piasecki made her drive to a wooded area near a lake and hit her several times in the head and face during the drive. C.D. testified that Piasecki accused her of being with another man. C.D. told the jury that Piasecki was "raging" and looked through her truck and threw everything out the window, including her purse, compact discs, cologne and jewelry. C.D. further testified that Piasecki sexually assaulted her during the drive and hit her over the head with a flashlight. C.D. stated that there was "blood everywhere." C.D. told the jury that at one point she tried to exit the vehicle but Piasecki prevented her from doing so, he then hit her three more times and told her if she tried to escape again he would kill her. C.D. testified when they got near the lake she "[saw] lights on at some houses" so, she honked the horn. C.D. stated that Piasecki then ripped the horn out of the vehicle and made her drive farther up the road. C.D. stated that when they stopped at the lake, Piasecki broke all the windows in the vehicle, including the windshield and the sunroof.
Photographs of C.D.'s vehicle introduced at trial showed that the horn had been removed from the steering wheel.
According to C.D., Piasecki eventually calmed down and helped C.D. clean up her face. C.D. also testified that her daughter called her cell phone repeatedly during this time and Piasecki eventually answered the phone and allowed C.D. to talk to her daughter. C.D. told her daughter they were on their way to pick her up and whispered to her that she had been beaten. C.D. testified that when they left the lake, Piasecki drove them back towards his sister's house. According to C.D., when they arrived at Piasecki's sister's house, Piasecki took her cell phone and the flashlight and allowed her to leave. C.D. drove to the house where her daughter was staying. When she arrived, someone called 91-1 and she waited with her daughter until the paramedics arrived and took her to Conroe Regional Medical Center to treat her injuries. Among other things, C.D. had a black eye, broken nose, swollen lip, and received four staples in her head to close her wounds.
ADMISSION OF LETTERS
In his first issue, Piasecki argues that the trial court abused its discretion in admitting into evidence letters purportedly written by Piasecki to C.D. while he was in jail awaiting trial. Piasecki argues that the letters were not properly authenticated. We may not disturb a trial court's evidentiary ruling absent an abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). We must uphold the trial court's decision if it was "within the zone of reasonable disagreement and was correct under any theory of law applicable to the case[.]" Id. This is because trial courts are generally in the best position to determine whether evidence is admissible. Id.
At trial, the court initially addressed the issue of admissibility of the letters outside the presence of the jury. During the conference, C.D. testified that she recognized the handwriting in State's exhibits 71 through 80 as Piasecki's handwriting, and explained that the letters were addressed to her and sent to Joe Belnoski, a mutual friend of hers and Piasecki's. On voir dire, C.D. explained that she was familiar with Piasecki's handwriting because Piasecki was previously confined for a portion of their relationship and during that time they "wrote back and forth every day." C.D. further testified that the original letters were at her residence. Defense counsel objected to the admission of the letters on the basis that they were hearsay and not properly authenticated. When the trial court noted that there appeared to be no fraud or tampering with the documents, counsel responded, "we certainly can't know that without, first, the originals." The trial court overruled counsel's objections to the admission of the letters and the jury was brought back in.
When testimony resumed, the State questioned C.D. to lay the foundation to authenticate the letters. C.D. testified that she recognized the handwriting in State's exhibits 71 through 80 as Piasecki's handwriting. She further testified that the copies of the letters were true and correct copies of the originals that she received. She explained that with the exception of one, all of the letters began by referencing her name. She testified that some, but not all of the letters, were signed by Terry. With regard to one of the letters purportedly written by an "unbiased third party," C.D. testified that when she first received the letter she thought it was from a third party, but after reading the entire letter and examining the handwriting she believed Piasecki had written it pretending to be someone else. After concluding his voir dire examination, defense counsel objected to the admission of the letters on the basis of "hearsay and authentication." The trial court overruled the objections and admitted the letters into evidence.
C.D. explained that since Piasecki did not know her current address, he sent the letters to Belnoski's residence. C.D. told the jury that the envelope of each letter stated "Joe, please make sure [C.D.] gets this" and included C.D.'s phone number. C.D. explained that her mom picked up some of the letters from Belnoski, and she picked up some of the letters herself. C.D. then read a significant portion of each letter to the jury.
"The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). Under Texas law, evidence may be authenticated by testimony of a witness with knowledge that a matter is what its proponent claims it to be. Tex. R. Evid. 901(b)(1). A person familiar with another's handwriting may authenticate a writing "based upon familiarity not acquired for purposes of the litigation." Tex. R. Evid. 901(b)(2). In addition, documents may be authenticated by distinctive characteristics, including contents and substance, taken in conjunction with relevant circumstances. Tex. R. Evid. 901(b)(4).
All of the letters pleaded with C.D. to help Piasecki get out of jail by changing her story or telling the district attorney she would not testify against him. The letters contain details regarding C.D. and Piasecki's relationship, as well as reference to C.D.'s children. One of the letters refers to C.D.'s daughter by name. We find that C.D.'s testimony was sufficient to authenticate the letters. See Tex. R. Evid. 901(b)(1), (2); see also Stafford v. State, 248 S.W.3d 400, 409 (Tex. App.—Beaumont 2008, pet. ref'd). In addition, the contents and substance of the letters are sufficient to support a finding that Piasecki authored the letters. See Tex. R. Evid. 901(b)(4); see also Druery v. State, 225 S.W.3d 491, 502-03 (Tex. Crim. App. 2007).
In conjunction with issue one, Piasecki argues that the trial court abused its discretion in "admitting the copies of the letters rather than forcing the State to introduce the originals." However, Piasecki did not object on the basis of the best evidence rule when the letters were admitted at trial. See Tex. R. Evid. 1002, 1003, 1004. Therefore, Piasecki failed to preserve this issue for review. See Tex. R. App. P. 33.1(a)(1)(A). We overrule issue one.
ROBBERY
In issue two, Piasecki argues that the evidence is legally insufficient to support his conviction for robbery. A person commits the offense of robbery if, in the course of committing a theft, and with the intent to obtain or maintain control of property, he: "(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code Ann. § 29.02(a) (West 2011). "'In the course of committing theft'" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft." Id. § 29.01(1).
Piasecki argues that "the State presented no evidence that [Piasecki] committed these acts with the intent to obtain or maintain control of the cellular phone or any of her other belongings." Intent is a fact issue for the jury. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984). Intent may be inferred from circumstantial evidence. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Intent to obtain or maintain control of property as set forth in section 29.02 addresses the defendant's state of mind regarding the property and not his state of mind regarding the assault. Finley v. State, 917 S.W.2d 122, 125 (Tex. App.—Austin 1996, pet. ref'd); see also White v. State, 671 S.W.2d 40, 42 (Tex. Crim. App. 1984). Generally, the requisite connection between an assault and a theft may be inferred when the offenses occur in close temporal proximity. See Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002). This inference "will not be negated by evidence of an alternative motive that the jury could rationally disregard." Id.
C.D. testified that while on the way to pick up her daughter, Piasecki asked her for her cell phone. C.D. stated that when she questioned him about why he needed the cell phone, "that's when he hit me the first time" and demanded the phone. C.D. further testified that Piasecki was "raging," that he held her by the back of her head and threw everything out of her truck. Additionally, C.D. testified that Piasecki hit her four times because he wanted a flashlight out of her back pocket. C.D. stated that Piasecki removed her seat belt and retrieved the flashlight from her back pocket. Thereafter, Piasecki hit C.D. over the head with the flashlight, cursed at her and ordered her to drive.
Though Piasecki allowed C.D. to drop him off at his sister's house following the incident, he kept her cell phone and the flashlight. Additionally, C.D. was not able to retrieve the items Piasecki had thrown out of her truck, such as her purse and jewelry, until the following day when she and her mother walked down Coaltown Road picking up the things Piasecki threw out the window. We conclude that there was sufficient evidence that a jury could reasonably conclude that Piasecki intentionally or knowingly caused bodily injury, or placed C.D. in fear of imminent bodily injury, with the intent to obtain or maintain control over her property. See Tex. Penal Code Ann. § 29.02(a). We overrule issue two.
INEFFECTIVE ASSISTANCE OF COUNSEL
In issue three, Piasecki argues he received ineffective assistance of counsel at trial. To prevail on a claim for ineffective assistance of counsel, Piasecki must show that (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant must prove there was no plausible professional reason for specific acts or omissions of his counsel. Id. at 836.
"Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional." Bone, 77 S.W.3d at 833. "In the absence of an evidentiary hearing in which counsel is called upon to explain his actions, we must presume that, under the circumstances, the challenged action might be simply considered to be part of an overall strategic plan." Jones v. State, 37 S.W.3d 552, 553-54 (Tex. App.—Beaumont 2001, no pet.). "The appellant may meet the burden of overcoming the presumption where an objective review of the record reflects that counsel's omission would have been unacceptable regardless of any trial strategy." Id. at 554.
Piasecki argues that defense counsel was ineffective for calling a witness, Michael Kiser, a convicted felon, who testified on cross-examination that while Kiser and Piasecki were both incarcerated, Piasecki bragged to him about committing the offenses. Kiser testified in graphic detail that Piasecki stated that he beat C.D., sexually assaulted her and he busted all the windows out of her truck. Kiser further testified that Piasecki showed no remorse and laughed about the whole incident. Piasecki asserts that his trial counsel stated his reasons for calling Kiser on the record during trial; therefore, the record is sufficient for this Court to find trial counsel's performance was deficient.
When defense counsel cross-examined C.D. during the State's case in chief, counsel established that C.D. had purchased methamphetamine from Kiser in the past. When counsel asked C.D. how many times she had purchased methamphetamine from Kiser the State objected and the following exchange took place:
[STATE]: Object to relevance, Your Honor.
. . . .
(At the bench, on the record)
[DEFENSE]: She starts working a deal with SIU to snitch off Kiser. Then defendant goes to Kiser and burns her with Kiser and says, look, she is setting you up with SIU, don't use any more dope in an attempt to keep her from using drugs. That was before all of this happens. The theory would be that Kiser is the actor and not [Piasecki], because she was acting as a confidential informant against him and Kiser was aware of it because [Piasecki] told.
. . . .
THE COURT: Well, what he is saying is because Kiser was selling dope and his client tried to get him not to and that he was being snitched out, that Kiser retaliated against her and beat her up because -- that's the inference.
The trial court overruled the State's objection, and C.D. testified that in late June or early July 2010, officers from the Special Investigations Unit (SIU) of the Conroe Drug Enforcement Agency asked her to work undercover to help them secure cases against dope dealers. C.D. testified that the officers did not specifically ask her to help secure a case against Kiser, but she acknowledged that Kiser's name was referenced by the officers during the conversation. C.D. testified that she declined to act as a confidential informant. C.D. stated that she did not know Piasecki told Kiser that she was considering working with the DEA. When asked to explain why one of the letters Piasecki wrote C.D. stated, "Kiser says you are clear on the dope[,]" C.D. stated she had obtained dope from Kiser and Piasecki stole it from her so she called Kiser and told him he would have to get his payment from Piasecki. When the State objected to this line of questioning, defense counsel explained it was relevant to establish that "there would have been a grudge with Mr. Kiser and [C.D.]"
Defense counsel called Kiser to testify. When defense counsel elicited testimony about a conversation between Kiser and Piasecki regarding C.D.'s involvement with the DEA the following exchange took place:
[STATE]: I object to relevance.
THE COURT: Counsel?
[DEFENSE]: Judge, it's the same thing as from yesterday. We have just got to get information there. The information went to Mr. Kiser regarding [C.D.] working with the special investigations unit and that Mr. Piasecki passed that information on through Mr. Kiser.
[STATE]: Relevance and cumulative, Your Honor.
THE COURT: Why is that relevant at this point?
[DEFENSE]: May I approach, Your Honor?
THE COURT: You may.
(At the bench, on the record)
[DEFENSE]: I'm trying to prove up the alternative theory of the offense. I have certainly got to prove there's other people who knew this information. If he doesn't know the information, it's not enough for the truth of the matter asserted. It's simply being used for this guy who is a methamphetamine dealer. And remember the letters, there's a reference to a you know the - the debt is taken care of or whatever in those letters. So it's one to establish and --
THE COURT: Is this defendant going to make admissions along this line?
[DEFENSE]: As far as actually being the actor, committing any offenses? I will bet you a million dollars he won't admit to the offense, but I certainly don't have to have an ultimate proof. I can create - it's implied through all the evidence.
Kiser testified that in late June or early July 2010 Piasecki told him that C.D. was working with the DEA to "snitch" on him and set him up. Kiser further testified that C.D. came to him "on her own accord and told [him] everything herself." Contrary to defense counsel's trial strategy, Kiser stated that he did not have any further dealings with C.D. after that. Instead, as set forth above, Kiser testified on cross examination that Piasecki made statements to Kiser bragging about committing the offenses against C.D.. Piasecki contends that defense counsel "either failed to 'woodshed' the witness . . . or counsel knew that his client confessed to Kiser and decided to call Kiser notwithstanding this knowledge." Piasecki argues that there is no reasonable justification for calling Kiser as a witness for the defense.
The record is silent as to whether defense counsel prepared Kiser as a witness or knew that he would testify that Piasecki confessed to committing the offenses. In the face of a silent record, we may not speculate about the reason for trial counsel's decision. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A failed trial strategy does not necessarily mean the attorney's conduct was below the standard of professional competence. To fairly assess whether an attorney's conduct rises to the level of ineffective assistance of counsel, we must make every effort "to eliminate the distorting effects of hindsight[.]" Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992). What may appear to be inadvisable after the jury returns its verdict may have been perceived differently by trial counsel during the trial.
The right to effective counsel, however, does not equate to the right to error-free counsel. Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986). Piasecki has not shown that defense counsel's representation fell below an objective standard of reasonableness. To further support the defensive theory, defense counsel called Piasecki's sister Brenda. Brenda testified that on the night in question Piasecki was living with her and went to bed shortly after 9 p.m. Brenda testified that C.D. showed up between 11 p.m. and 12 midnight beating on the door, screaming and hollering and wanting to speak with Piasecki. According to Brenda, C.D. "had blood on her head and her eye was all messed up" and she began "slapping and whacking" Piasecki yelling that this was "[his] fault." According to Brenda, Piasecki made C.D. leave. Given the scant amount of evidence to support the defensive position that someone else committed the offenses, we conclude that defense counsel's decision to call Kiser may be viewed as falling within the range of reasonable representation. Piasecki has failed to establish the first prong of Strickland.
Moreover, Piasecki has failed to establish the second prong of the Strickland test. The State presented a substantial amount of incriminating evidence against Piasecki. In addition to the testimony of C.D. and her daughter regarding what occurred on the night of the offenses, and among other things, the State presented photos of the extensive damage to C.D.'s vehicle, photos of Piasecki taken following his arrest on the night of the offenses that showed injuries on his hands and forearms consistent with breaking car windows, evidence that Piasecki had gone to several locations earlier that evening looking for C.D., and letters written by Piasecki to C.D. while awaiting trial in which he pleaded with her to change her story, consistently apologizing for "what happened," stating that he "was wrong," "was jealous," would make it up to her, and asking her to forgive him. Piasecki has not shown within reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 687. The record contains sufficient evidence apart from Kiser's testimony to sustain a guilty verdict. We overrule issue three.
Having overruled all three of Piasecki's issues on appeal, we affirm the judgment of the trial court.
AFFIRMED.
CHARLES KREGER
Justice
Do not publish Before McKeithen, C.J., Gaultney and Kreger, JJ.