Opinion
No. 08-16-00098-CR
08-30-2017
AARON STUCKWISCH, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 384th District Court of El Paso County, Texas (TC# 20150D04349) OPINION
A jury found Appellant, Aaron Stuckwisch, guilty of aggravated assault with a deadly weapon and assessed punishment at three years' confinement at the Texas Department of Criminal Justice and a $10,000 fine. Appellant first argues the evidence was legally insufficient to support his conviction. Second, Appellant contends that his trial counsel was ineffective. We affirm.
I. BACKGROUND
This case arises from an altercation that occurred late one evening in a service area located behind a vacant grocery store involving a transient and two of his acquaintances. On July 8, 2015, El Paso Police Officer Richard Kimberlin was dispatched to the corner of Mesa and Balboa to an area near a gasoline station and a closed grocery store. Upon arrival, Officer Kimberlin met with three individuals, Hugh Michael Freitas, who is the complaining witness in this case, Freitas's girlfriend, and a transient named Claude Delbert Faust. Officer Kimberlin immediately observed that Freitas had injuries to his face and ear, and also appeared to be highly intoxicated. Freitas's right ear had a laceration which appeared to have been recently inflicted.
Officer Kimberlin also met with Appellant, and noticed that he seemed agitated and angry, had a strong body odor, but he did not have any visible injuries other than some redness on his forehead and underneath his right eye. When Kimberlin spoke with Appellant he said he had been attacked by Freitas. He said Freitas threw rocks at him and hit him with a 2-by-4. He said that the 2-by-4 was broken on the top of his head and that he was also hit in the face with a brick. When Appellant spoke to Kimberlin, he did not say that Freitas had threatened Faust, or that he was defending Faust, or that Faust had been attacked by anyone that night.
Officer Kimberlin found three rocks at the scene. One appeared to have a moist, red, blood-like fluid. Another was about the size of a brick. The third was smaller, approximately the size of Officer Kimberlin's fist. The blood-like fluid was found only on the third rock.
At trial, Freitas testified that he was visiting Faust, his transient friend, who was then living behind the closed grocery store on the evening of July 8, 2015. Freitas and Faust had been friends for many years. During those years, although Faust had been homeless, addicted to alcohol, and in poor health, Freitas and Faust remained personal friends. Freitas's sister had earlier driven him to the closed grocery store at approximately 5 p.m. that evening, and the two began "kind of catching up" while consuming alcohol. Approximately five hours later, Freitas and Faust were joined by Appellant, whom Faust knew by name. Freitas described that Appellant left and returned several times throughout the evening. According to Freitas, Appellant eventually became loud, aggressive, and appeared anxious. After leaving one final time, Appellant unexpectedly returned and struck Freitas on the side of his head. Freitas was initially unaware of what Appellant used to hit him, but described that he was struck on the side of his head, which caused his ears to ring, extreme dizziness, and numbing. He analogized the force used as being the "equivalent of somebody just lined up with a baseball bat. Like an aluminum, metal, baseball bat[.]" Freitas reacted by covering his ear, which had begun bleeding. Freitas described that upon turning his head to see, he saw a rock in Appellant's hand. Freitas subsequently fell over and was unable to get up as Appellant hit him once again on the right side of his body.
Freitas testified that Faust yelled at Appellant to stop. His girlfriend, Linda Conchas, then arrived, soon followed by Officer Kimberlin and emergency medical services (EMS). Conchas eventually transported Freitas to a local hospital to receive additional medical attention. Freitas sustained a laceration and some cartilage damage to his right ear . He testified that he never became angry with Faust and did not otherwise threaten Faust. He further testified that if he had hit Appellant, it would only have been to fight him off.
Conchas testified that while she earlier planned to pick Freitas up on her way home from work at around 2 a.m., she instead went for Freitas after he called in a state of panic at approximately 11:30 p.m. While the area behind the closed grocery store was dimly lit, by shining the lights of her vehicle upon arriving, she saw Appellant standing over Freitas with "a big rock in his hand about - like he was trying to hit him or about to hit him." Freitas was heavily bleeding and holding his head, seemingly protecting his face from Appellant. Conchas never saw Appellant hit Freitas, however, she confirmed that the rock she had seen Appellant holding was very similar to the brick-like rock Officer Kimberlin had previously testified to finding at the scene. She began sounding her horn and yelling at Freitas, at which point Appellant finally threw the rock down and walked away towards the end of the parking lot. Conchas then exited her vehicle and retrieved Freitas and Faust.
Appellant testified that while he had known Faust for approximately five years, he had never met Freitas. He explained that Freitas and Faust had already been drinking heavily when he arrived. Appellant stated he consumed only one "tallboy" after purchasing it that evening—the only time, according to him, that he left before the altercation began. Appellant stated that Freitas later began "hounding" him about "get[ting] cocaine." Appellant responded by informing Freitas that he did not "know anything about that" and to "[l]eave [him] alone." Appellant explained that Freitas's demeanor began to change and he became angry, got up, and began taking steps towards Faust as if threatening to punch Faust. Appellant then put himself between the two, at which point Freitas began to "pound" on Appellant's face and head. Appellant reacted by grabbing Freitas and "launch[ing] him off the curb." Freitas hit the concrete parking block and he then grabbed his ear as blood began to gush through his fingers and hands. Appellant attempted to run after seeing the blood, kicking Freitas in the face after Freitas attempted to restrain Appellant by grabbing his ankle. At that point, a van arrived and began honking, and both Freitas and Faust got in.
Following the trial testimony, the jury convicted Appellant of the charge of aggravated assault with a deadly weapon. The jury assessed punishment at three years' confinement and a fine of $10,000. Appellant timely appealed.
II. DISCUSSION
In two issues, Appellant contends that the evidence is legally insufficient to support his conviction for aggravated assault and that he was denied effective assistance of counsel. We address both issues.
Legal Sufficiency
The standard of review for reviewing the legal sufficiency of the evidence is whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) (determining that Jackson standard "is the only standard that a reviewing court should apply" when examining sufficiency of evidence). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).
Our role is not to "re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder." Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010) (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999)). Rather, we defer to the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Isassi, 330 S.W.3d at 638. "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper, 214 S.W.3d at 13.
When a general verdict is returned and a defendant challenges the sufficiency of the evidence, the verdict will be upheld if the evidence is sufficient to support a guilty finding under any of the paragraph allegations submitted. Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App. 1992) ("when a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted the verdict will be upheld"); Nevarez v. State, 847 S.W.2d 637, 643 (Tex.App.--El Paso 1993, pet. ref'd); see also Adair v. State, 155 Tex.Crim. 377, 235 S.W.2d 170, 172 (1950) (opinion on rehearing) (verdict applied to an offense that found support in the facts in rape prosecution where both rape by force and rape by threat were submitted to the jury and general verdict returned).
A person commits aggravated assault if (a) he intentionally or knowingly threatens someone with imminent bodily injury while using or exhibiting a deadly weapon during the assault; or (b) he intentionally or knowingly threatens someone with imminent bodily injury and does cause serious bodily injury. TEX.PENAL CODE ANN. §§ 22.01, 22.02 (West Supp. 2016 & West 2011). Relevant to subpart (a), a "[d]eadly weapon" means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id. § 1.07(a)(17) (West Supp. 2016).
In this case, the charge included both theories: (1) aggravated assault by threatening Freitas with a deadly weapon, namely, a rock; and (2) aggravated assault by causing Freitas serious bodily injury with a deadly weapon, namely, a rock. The jury returned a general verdict of "guilty" for aggravated assault with a deadly weapon. As to his evidentiary sufficiency challenge concerning the assault-by-threat, Appellant contends that there was no evidence that he threatened Freitas with a rock or that Freitas perceived any fear of the rock in Appellant's possession. As to his evidentiary sufficiency challenge concerning the assault-by-injury, Appellant contends that there was no credible evidence that Appellant hit Freitas with a rock. We first turn to the assault-by-threat charge. We understand Appellant's contention to be that there is insufficient evidence of a threat since Freitas testified that he was initially unaware of what and who hit him. The Court of Criminal Appeals found that "there must be some evidence of a threat being made to sustain a conviction of assault by threat." Olivas v. State, 203 S.W.3d 341, 349 (Tex.Crim.App. 2006). The crucial inquiry is "whether the assailant acted in such a manner as would under the circumstances portend an immediate threat of danger to a person of reasonable sensibility." Id. at 347. While the court in Olivas left open the issue of whether a victim must perceive the threat, the evidence need only be legally sufficient to establish that Appellant threatened Freitas with a deadly weapon. See Boston v. State, 410 S.W.3d 321, 326 (Tex.Crim.App. 2013) (finding there was sufficient evidence for a rational jury to infer the threat was perceived); and Schmidt v. State, 232 S.W.3d 66, 68 (Tex.Crim.App. 2007) (there was ample evidence for the jury to find the defendant communicated a threat of further violence).
We note that while the indictment included a deadly weapon finding, section 22.02(a)(1) does not require a deadly weapon finding. See TEX.PENAL CODE ANN. § 22.02(a)(1).
In addition to the testimony noted by Appellant, Freitas identified Appellant as the individual who had joined Freitas and Faust, who then left, and who then returned. Freitas testified that after being struck on the side of his head, he turned to see what had hit him and he then saw Appellant with a rock in his hand. Freitas further testified that he eventually fell over, at which point Appellant proceeded to hit him on the side of his body. Conchas also testified that upon arriving, she saw Appellant standing over Freitas with a rock as if he was about to hit Freitas. Officer Kimberlin testified that he found three rocks at the scene and the State introduced photographs of the three rocks.
While a rock is not a deadly weapon per se, a rock can be a deadly weapon if the manner of its use or intended use is capable of causing death or serious bodily injury. TEX.PENAL CODE ANN. § 1.07(a)(17)(B); Faircloth v. State, No. 03-12-00133-CR, 2013 WL 2395194, at *5 (Tex.App.--Austin May 30, 2013, pet. ref'd) (mem. op., not designated for publication) ("a rational fact-finder could have found that appellant used or intended to use the rock in such a manner that it would be capable of causing serious bodily injury or death"); see also McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000) (the statutory definition of a "deadly weapon" is not "anything that in the manner of its use or intended use causes death or serious bodily injury[,]" rather, the statute provides that a deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury"). Here, Freitas's testimony of a continuing assault, Conchas's testimony that she saw Appellant holding a brick-size rock over Freitas, coupled with the photographs and Officer Kimberlin's testimony of the rocks at the scene were sufficient for the jury to find that Appellant used the rock as a deadly weapon. Viewed in the light most favorable to the verdict, a rational jury could have found Appellant threatened Freitas with imminent bodily injury by using a deadly weapon.
Having found that the evidence is sufficient to support the elements of assault-by-threat, we need not conduct a legal sufficiency analysis to determine whether the evidence supports the alternative theory of assault-by-injury since the jury returned a general verdict of guilt. Fuller, 827 S.W.2d at 931; see also Herrera v. State, 367 S.W.3d 762, 775 (Tex.App.--Houston [14th Dist.] 2012, no pet.).
We overrule Appellant's first issue.
Appellant also complains of incomplete police work, that Freitas's testimony was not credible, and that the jury had issues during their deliberations. Having found there is legally sufficient evidence for his conviction, however, addressing these complaints are not necessary for the disposition of this appeal.
Ineffective Assistance of Counsel
In his second issue, Appellant complains that he was denied effective assistance of counsel. He points to his trial counsel's failure to make a motion for a directed verdict after the State rested its case, his trial counsel's failure to poll the jury at the end of the guilt phase of his trial, and his trial counsel's failure to prevent him from testifying, and the jury's ostensible struggles.
The United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, the appellant must establish by a preponderance of the evidence that his attorney's performance was deficient and his attorney's deficient performance deprived him of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App. 2005). Both Strickland components must be satisfied and the failure to show either deficient performance or prejudice will defeat his ineffectiveness claim. Perez v. State, 310 S.W.3d 890, 893-94 (Tex.Crim.App. 2010); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003).
The first prong of Strickland requires that the appellant show the attorney's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Stated differently, he must show his attorney's actions do not meet the objective norms for professional conduct of trial counsel. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). The second prong of Strickland requires that the appellant establish a reasonable probability that but for his attorney's deficient performance, the outcome of the case would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812. "[R]easonable probability" is that which is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998).
A direct appeal is usually an inadequate vehicle for raising an ineffective assistance claim since the record is usually undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005); Thompson, 9 S.W.3d at 814, n.6. We presume the attorney's representation fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001) (citing Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000)). Ineffective assistance claims must be firmly founded in the record to overcome this presumption. Thompson, 9 S.W.3d at 813. The strong presumption of reasonable assistance may not be overcome even if the record is void of an explanation for the attorney's conduct. Rylander, 101 S.W.3d at 110-11 (noting that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective"); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This leaves few situations where counsel's conduct is so outrageous that no competent attorney would have engaged in it. Goodspeed, 187 S.W.3d at 392. With these standards in mind, we take up each of Appellant's complaints about his trial counsel.
Appellant first argues that his trial counsel was ineffective for failing to move for an instructed verdict. The record shows that at the conclusion of the State's case, the trial court asked Appellant's trial counsel if he had any motions for the court and he replied: "No, I don't." On appeal, Appellant argues that trial counsel's failure to request an instructed verdict caused him prejudice since the State failed to present evidence that Freitas felt threatened with imminent bodily injury by a rock. Appellant further posits that the trial court would have granted the motion for instructed verdict on this theory.
As explained above, while the court in Olivas left open the issue of whether a victim must perceive the threat, however, there was sufficient evidence to support Appellant's conviction of aggravated assault by threat with a deadly weapon. Counsel is not deficient for failing to move for a directed verdict if the State presents more than a scintilla of evidence to support a guilty verdict. Gomez v. State, No. 08-10-00276-CR, 2012 WL 390970, at *8 (Tex.App.--El Paso Feb. 8, 2012, no pet.) (not designated for publication) (citing Gill v. State, 111 S.W.3d 211, 217 (Tex.App.--Texarkana 2003, no pet.)). Consequently, defense counsel had no ground on which to move for an instructed verdict, and his failure to do so did not render his assistance ineffective.
Appellant also argues that his trial counsel was ineffective by calling Appellant to testify or otherwise not preventing Appellant from testifying. The record shows that Appellant's trial counsel indeed called Appellant as a witness to testify on his own behalf. On appeal, Appellant argues that by doing so, his trial counsel opened the door for the State to admit evidence prejudicial to Appellant's case which would have been otherwise inadmissible. Appellant further argues that the result would have been different but for Appellant's conflicting testimony of his drug use and conflicting statements about the events leading up to the altercation.
Although it is the attorney who controls the progress of the case, the defendant makes the personal decision of whether to testify on his own behalf. Johnson v. State, 169 S.W.3d 223, 235 (Tex.Crim.App. 2005). It is defense counsel's duty to inform a defendant of his right to testify including the fact that the ultimate decision of whether to testify belongs to him. Id. at 234-35. Nevertheless, where the record is silent as to whether defense counsel advised a defendant to testify or not, or what reasoning defense counsel used in calling a defendant to testify, a claim of ineffectiveness under this theory has not been affirmatively demonstrated in the record and cannot be sustained. Peralta v. State, 338 S.W.3d 598, 610 (Tex.App.--El Paso 2010, no pet.); Fugon v. State, 963 S.W.2d 135, 137 (Tex.App.--Houston [1st Dist.] 1998, pet. ref'd) (unpublished section); see also Roberts v. State, No. 08-12-00112-CR, 2014 WL 1513122, at *3 (Tex.App.--El Paso Apr. 16, 2014, no pet.) (not designated for publication). Our review of the record does not reveal any evidence of whether defense counsel advised Appellant. Since there is no evidence founded in the record concerning defense counsel's advice, if any, concerning Appellant testifying on his own behalf, we cannot sustain Appellant's ineffective assistance claim on this basis as Appellant has failed to overcome the presumption of reasonableness. Peralta, 338 S.W.3d at 611.
Appellant lastly argues that his trial counsel was ineffective by failing to poll the jury after the guilty verdict. The record shows that after finding Appellant guilty of aggravated assault with a deadly weapon, neither party polled the jury. On appeal, Appellant argues that no trial strategy explains trial counsel's failure to poll and points to a jury note given to the trial court sometime after beginning deliberations stating that the jury was struggling to reach a unanimous verdict. Notably, Appellant does not state how polling the jury would have resulted in a different outcome. Requesting that the jury be polled is not mandatory and, absent evidence within the record for a need to poll the jury, trial counsel's conduct was not deficient for failing to request the court to poll the jury. See TEX.CODE CRIM.PROC.ANN. arts. 37.04, 37.05 (West 2006). Appellant does not cite any evidence suggesting that any juror might have answered in the negative if polled or evidence indicating a reasonable probability that polling the jury would have produced a different outcome. Saucedo v. State, No. 14-06-00939-CR, 2008 WL 2261294, at *6 (Tex.App.--Houston [14th Dist.] June 3, 2008, pet. ref'd) (mem. op., not designated for publication). Appellant has therefore failed to overcome the presumption of reasonableness. Peralta, 338 S.W.3d at 611. We overrule Appellant's ineffective assistance claim.
III. CONCLUSION
Having overruled both of Appellant's issues on appeal, the judgment of the trial court is affirmed.
GINA M. PALAFOX, Justice August 30, 2017 Before McClure, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)