No. 04-03-00375-CR.
Delivered and Filed: March 3, 2004. DO NOT PUBLISH.
Appeal from County Court at Law No. 7, Bexar County, Texas, Trial Court No. 838371, Honorable Monica Guerrero, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice and Sandee Bryan MARION, Justice.
Opinion by: SANDEE BRYAN MARION, Justice.
A jury found defendant, Carey Roper, guilty of a misdemeanor offense of assault causing bodily injury. The trial court assessed his punishment at a $2,000 fine, probated to $1,800, 100 hours of community service, payment of $50 to the Battered Women's Shelter, and a one year confinement probated for eighteen months. Defendant complains of his conviction in eleven issues on appeal. We affirm.
SUFFICIENCY OF THE EVIDENCE
In his first two issues, defendant contends the evidence is legally and factually insufficient to support his conviction. Defendant argues the State failed to prove he assaulted or caused bodily injury to the complainant, Lisa Dean. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999) (same); Johnson v. State, 23 S.W.3d 1, 6-7, 10-11 (Tex.Crim.App. 2000) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). In order to convict defendant of a Class A misdemeanor assault/bodily injury, the law requires the State to prove beyond a reasonable doubt defendant committed the essential elements of the crime; namely that he "intentionally, knowingly, or recklessly caused the bodily injury to another including a person's spouse." Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon 2003). On December 26, 2002, police dispatched Officer Vigilio Gonzales to investigate a potential assault. Officer Gonzales arrived at the scene at 7226 Blanco Road and heard the sound of a woman, later identified as Lisa Dean, crying inside the apartment. Dean did not open the door for Officer Gonzales until after he identified himself as a police officer and reassured her that no one else was present. Dean proceeded to relate to Officer Gonzales that defendant, her son, hit and pushed her. Because defendant had left for his place of employment, Oshman's Sporting Goods, before Officer Gonzales arrived, Officer Gonzales decided to go to Oshman's to look for defendant. In the meantime, defendant returned to the apartment. While at Oshman's, Officer Gonzales received a phone call to return to the apartment. When he returned to the apartment, he found defendant there and placed him under arrest. The State called Officer Gonzales as its only witness to testify to the assault. He testified that when he arrived, Dean was crying and noticeably upset. In addition, Officer Gonzales testified that he noticed red marks on Dean's left arm and biceps, as evidenced by a red hand impression where defendant appeared to have grabbed her. He stated the red marks were consistent with marks found on a person who had just received a blow and in places consistent with Dean's version of the assault. Further, he testified that defendant did not have any red marks on him consistent with defendant's version of the assault. Defendant testified that Dean moved in with him because she had nowhere else to live. According to defendant, Dean became upset and began assaulting him after he asked her to leave because she was not cleaning up after her pets. Defendant testified he only raised his arms defensively to keep Dean from hitting him and, in order to avoid a fight, he left the apartment to go to Oshman's. While Officer Gonzales did not observe the assault, the State provided the jury with his testimony and photos of Dean's red marks consistent with her version of the assault. The jury heard Officer Gonzales' testimony that he did not see any marks on defendant consistent with his version of the assault. While defendant presented his own testimony as to what occurred, the jury was free to decide which version of the facts to believe. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). Based on our review of the record, we find the evidence is legally and factually sufficient. INEFFECTIVE ASSISTANCE OF COUNSEL
In his remaining issues on appeal, defendant argues he received ineffective assistance of counsel because of several errors and omissions made by his counsel during trial. Defendant contends his trial counsel failed to: (1) object to hearsay testimony; (2) request a hearing to determine if the complainant was unavailable to testify, and if so, her reason for unavailability; (3) request a jury instruction regarding self defense; (4) request a jury instruction regarding the lesser included offense of a simple assault Class C misdemeanor; and (5) object to unqualified jurors. Although defendant's arguments invoke both state and federal constitutional protections, he has not separated his points of error in such a way as to argue a separate ground of relief under the Texas Constitution. Therefore, we must assume that he is claiming no greater protection under the Texas Constitution than that provided by the United States Constitution. Muniz v. State, 851 S.W.2d 238, 251-52 (Tex.Crim. App. 1993). We follow the standard of review for evaluating claims of ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim. App. 1999). First, a defendant must show that counsel's deficient performance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, defendant must affirmatively prove counsel's conduct prejudiced him. Id. In other words, defendant must prove by a 'reasonable probability' that the proceeding would have resulted differently but for counsel's conduct. Id. A reviewing court cannot speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must presume trial counsel acted pursuant to a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837-38 (Tex.Crim.App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim. App. 2003); Thompson, 9 S.W.3d at 813. Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-14. Normally a silent record cannot rebut the presumption that counsel's performance resulted from sound or reasonable trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim. App. 1994). The appellate record here does not affirmatively demonstrate defendant's grounds of ineffective assistance of counsel. The record does not contain any explanations for his counsel's failure to object to Officer Gonzales' testimony or inquire as to Dean's availability to testify. Although the State only offered Officer Gonzales' testimony as evidence to establish that defendant assaulted Dean, we cannot conclude, on this silent record, that trial counsel was ineffective for not raising a hearsay objection. See Rylander, 101 S.W.3d at 110-11. Also, the record does indicate counsel knew Dean was unavailable as evidenced by his reference to her travels with her husband across the country during his closing argument. Further, the record does not demonstrate why defendant's trial counsel did not request an instruction on self defense or the lesser included offense of a Class C misdemeanor. Trial counsel may have taken the reasonable trial strategy of an "all or nothing" approach by not asking for a lesser included offense. See Lynn v. State, 860 S.W.2d 599, 603 (Tex. App.-Corpus Christi 2001, pet. ref'd). Counsel may have realized defendant was not entitled to a self defense instruction because defendant denied committing the assault stating that he never grabbed or hit Dean. See Young v. State, 991 S.W.2d at 838-39. Gilmore v. State, 44 S.W.3d 92, 96-97 (Tex. App.-Beaumont 2001, pet. ref'd). Finally, the record is silent as to why trial counsel did not challenge certain veniremembers for cause. Even assuming defendant could establish an error on counsel's part, he did not establish prejudice because two of the veniremembers did not sit on the jury, and the record does not contain the name of the third veniremember or give any indication he or she sat on the jury. We will not reverse a conviction based on ineffective assistance of counsel grounds when counsel may have based his actions or omissions upon tactical decisions. See Bone v. State, 77 S.W.3d 828, 830 (Tex.Crim.App. 2002). Defendant's trial counsel may have proceeded as he did for strategic reasons and the record is silent as to counsel's reasons for proceeding as he did. For all these reasons, we presume trial counsel acted pursuant to a strategic plan for representing defendant. Therefore, defendant has failed to rebut the presumption that trial counsel's decisions were reasonable. CONCLUSION
We overrule defendant's issues on appeal and affirm the trial court's judgment.