Opinion
No. 05-04-01225-CR
Opinion issued January 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F03-56027-QK. Affirmed.
Before Justices O'NEILL, FITZGERALD, and LANG.
MEMORANDUM OPINION
Lester Deon Thomas appeals his conviction for murder. After the jury found appellant guilty, it assessed his punishment at twenty-five years' imprisonment. In six points of error, appellant contends the evidence is legally and factually insufficient to support his conviction, he lacked effective assistance of counsel at trial, and that the trial court erred by (a) denying appellant's motion for continuance, (b) admitting appellant's written statement when it was not audio or video recorded, (c) excluding evidence at the punishment phase about the prior bad acts of the victim, and (d) denying appellant's motion for new trial. We affirm the trial court's judgment.
BACKGROUND
At about midnight on the morning of September 28, 2003, appellant went to the apartment of his girlfriend, Stephanie Chapman. Also present downstairs in the living room was Dorley Crockett, Edward Chapman (Stephanie's cousin), and Horace Davis (Edward's nephew). Stephanie's fourteen-year-old daughter, Shaquinda, was upstairs in her bedroom. Appellant testified that Crockett made numerous crude references about having sex with Stephanie, and Stephanie admitted to appellant that she had slept with Crockett. Appellant testified he sat down and cried while Crockett, referring to appellant, said he was going to "knock him out" or "take him out." Appellant testified Edward told Crockett not to do anything and "handle your business, gun slinger." Appellant told Stephanie to get rid of Crockett, Edward, and Horace, and he drove away. After driving around for an hour or so, appellant drove to a friend's house and borrowed a 9-millimeter handgun. Appellant then drove back to Stephanie's apartment. Appellant testified that Stephanie met him at the door and they stepped inside the entry area of the apartment. Appellant kissed Stephanie and told her he loved her. He then saw movement from his left and noticed Crockett sitting on the couch. Appellant testified Crockett charged him, and appellant "shot in that direction." Crockett pushed appellant backwards, and appellant shot him a second time. As appellant fell, he fired a third time. When appellant stood up, he saw Stephanie lying against the wall with a pool of blood at her feet. He heard Shaquinda scream from upstairs, and he ran out of the apartment. Appellant drove to a roadside park in Hunt County where the police found him. After a three-hour standoff with appellant threatening suicide, the police disarmed appellant and apprehended him. At the Hunt County jail, appellant signed a written statement concerning the events. Shaquinda testified she was at the top of the stairs when appellant shot Crockett and Stephanie. She heard appellant say "Steff, I love you," and she saw him point the gun before she heard the gunshots. She then saw appellant turn around and run out of the apartment. She testified that Crockett was not fighting with appellant or on top of him when appellant fired the gun. When she came downstairs, Crockett was lying beside the couch and Stephanie was lying near the stereo. When the police arrived at the scene, Crockett's body had been removed by the paramedics, but Stephanie's body was still lying next to the stereo. Charles Clow, a firearm and toolmark examiner, testified that the recovered bullet fragments were fired by the gun taken from appellant when he was apprehended. Appellant was charged with capital murder by killing Stephanie and Crockett in the same criminal transaction or pursuant to the same scheme or course of conduct. Tex. Pen. Code Ann. § 19.03(a)(7) (Vernon 2003). The jury found appellant guilty of the lesser included offense of committing Crockett's murder.SUFFICIENCY OF THE EVIDENCE
In his second point of error, appellant contends the evidence is legally and factually insufficient to support his conviction for Crockett's murder. In determining the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether 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 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). In determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Our evaluation of the sufficiency of the evidence must give deference to the jury's verdict and to its determinations of the credibility and demeanor of the witnesses. Id. at 481. Our evaluation of the sufficiency of the evidence must not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Appellant argues the evidence is insufficient because the State failed to prove appellant's intent. The jury may infer the intent to kill from the defendant's use of a deadly weapon. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Hall v. State, 418 S.W.2d 810, 812 (Tex.Crim.App. 1967). Appellant testified he fired the gun at Crockett when Crockett charged him and pushed him. This is sufficient evidence to allow the jury to determine appellant intended to kill Crockett. The record contains no evidence that appellant did not intend to kill Crockett. Appellant also argues the evidence is insufficient to show he was the shooter. Appellant states in his brief that Shaquinda testified "Deon" shot Stephanie and Crockett and "Deon" ran out of the apartment holding a gun, but appellant asserts there is no evidence of whom Shaquinda was referring to as "Deon." Shaquinda did not identify appellant in court as "Deon" or as the shooter. However, regardless of whether Shaquinda identified appellant as Deon, appellant testified he shot Crockett. After reviewing all the evidence under the appropriate standards of review, we conclude the evidence is both legally and factually sufficient to support appellant's conviction. We overrule appellant's second point of error.MOTION FOR CONTINUANCE
In his first point of error, appellant contends the trial court erred in denying appellant's motion for a continuance. We review the denial of a motion for continuance for an abuse of discretion. Harrison v. State, No. PD-1511-04, 2005 WL 3408208, at *5 (Tex.Crim.App. Dec. 14, 2005); Vasquez v. State, 67 S.W.3d 229, 240 (Tex.Crim.App. 2002); Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996). To establish an abuse of discretion, the defendant must show actual prejudice from the denial of the continuance. Vasquez, 67 S.W.3d at 240; Janecka, 937 S.W.2d at 468. Appellant retained his trial counsel on August 3, 2004, twenty days before the trial, and he filed a motion for continuance on the day of trial. The motion for continuance states counsel had less than twenty days to prepare for this capital murder trial and that when he made an appearance on August 3, he did so with the understanding that the case would be reset to the fall of 2004 or February 2005. The motion states, "There are several fact witnesses that have yet been obtained and named, which can shed light on this charge of Capital Murder." At the hearing on the motion for continuance, counsel told the court that appellant "doesn't feel that I have adequate information to go forward and represent him effectively in this case. He has urged me to file this Motion For Continuance so that he may properly get his witnesses down here, and that the other witnesses that he wants to have down here be interviewed potentially for his defense of his case." Appellant testified he requested the continuance so that witnesses could be interviewed and counsel could properly prepare the case for trial. The trial court conferred with counsel and learned that besides voir dire, which would consume the first day of trial, the State's case would take at least a full day to present, which would give appellant two days to interview witnesses and prepare his case. The court then denied the motion for continuance. Appellant did not renew his motion after the State rested. In his defense, appellant presented his own testimony and the testimony of his mother and stepfather. In his own testimony, appellant testified he had no intent to harm Stephanie and did not mean to shoot her, and his testimony raised the inference that his shooting Crockett was in self-defense. The jury rejected the capital murder charge in favor of the lesser included offense of the murder of Crockett. At the punishment phase, appellant presented seven witnesses, including himself. Although the punishment range allowed the jury to assess punishment of life or up to ninety-nine years, the jury assessed punishment of twenty-five years. Appellant argues he showed prejudice from the denial of the continuance at the hearing on the motion for new trial. Shatambra Smalley, who is the mother of one or two of appellant's six children, testified that after the trial, she spoke to Crockett's brother-in-law, John. John told Smalley that "on the day of the incident that night they did return to the scene and . . . they removed Mr. Crockett's car from around the corner, and in the car he did admit there were drugs and a firearm in that vehicle." Appellant does not explain how evidence of the presence of a firearm and drugs in Crockett's vehicle while Crockett was around the corner inside Stephanie's apartment could have affected the case. Appellant also asserts he was prejudiced by the denial of the continuance because counsel lacked adequate time to prepare to cross-examine the witnesses; however, appellant's counsel never complained of lack of time to prepare to cross-examine the witnesses. Appellant also asserts he "was harmed in he did not have the opportunity to find and interview witnesses for the defense." Other than Smalley, "John," and Crockett's brother-in-law, appellant does not specify what witnesses could have testified for appellant. Furthermore, appellant has not shown that the testimony of Smalley, "John," or Crockett's brother-in-law would have assisted appellant. We conclude appellant has failed to demonstrate actual prejudice from the denial of the motion for continuance. Accordingly, he has not shown the trial court abused its discretion in denying the motion for continuance. We overrule appellant's first point of error.APPELLANT'S WRITTEN STATEMENT
In his third point of error, appellant contends the trial court erred in admitting his written statement in violation of article 38.22. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). Appellant argues that his signed, written statement had to be audio or video recorded to comply with the statute. A written statement is admissible when it complies with the requirements of article 38.22, section 2. Audio or video recording is not one of the requirements. To comply with article 38.22, section 2, the face of the written statement must show (a) appellant received certain admonishments and (b) "the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section." Id. art. 38.22, § 2(a), (b). In this case, the face of appellant's written statement shows compliance with article 38.22, section 2. Audio or video recording the statement was not necessary. Appellant also argues "there is not proof Article 38.22 was complied with in this case, because there is no testimony the defendant had the opportunity to review the statement prior to signing it." Detective Devon Davis testified that he interviewed appellant at the Hunt County jail. Davis testified he read appellant the statutory warnings and that appellant agreed to waive his rights and make a statement. Appellant told Davis that Davis could write out appellant's statement. Davis testified he wrote down what appellant told him. Davis also testified he made sure appellant could read by having appellant read the statutory warnings. Davis gave appellant a copy of the statement and Davis "read through the statement along with him." Davis asked appellant if he wanted to make any corrections or changes, and appellant said "no, that's all right." Appellant then signed the statement. Appellant testified Davis took down appellant's statement but did not allow appellant to read it before telling appellant to sign it. Appellant also testified that the contents of the statement are different from what he told Davis. When the admissibility of evidence involves a mixed question of fact and law and the question of fact turns on an evaluation of the credibility and demeanor of the witnesses, the appellate courts show almost total deference to the trial court's determination. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Franks v. State, 90 S.W.3d 771, 784 (Tex.App.-Fort Worth 2002, no pet.). In this case, Davis testified he read the statement with appellant, which allowed appellant to review the statement before signing it. Appellant testified he did not have the opportunity to review the statement before signing it. Resolution of this issue required an evaluation of the credibility and demeanor of the witnesses. Accordingly, we must show almost total deference to the trial court's decision. We conclude appellant has not shown the trial court erred in admitting his written statement. We overrule appellant's third point of error.EXCLUDED EVIDENCE
In his fourth point of error, appellant contends, "The court excluded testimony about the prior bad acts of the victim, which was offered to advance the theory of the defense of self defense." The excluded evidence was offered at the punishment phase, not the guilt phase. By that time, the jury had rejected appellant's defense of self defense. Exonerating evidence and evidence of defenses are not relevant to the assessment of punishment. Nixon v. State, 572 S.W.2d 699, 701 (Tex.Crim.App. [Panel Op.] 1978); Bisby v. State, 907 S.W.2d 949, 960 (Tex.App.-Fort Worth 1995, pet. ref'd). We conclude the trial court did not err in excluding at the punishment phase evidence relevant to appellant's defense of self-defense. We overrule appellant's fourth point of error.MOTION FOR NEW TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL
In his fifth point of error, appellant contends the trial court erred in denying appellant's motion for new trial. Appellant argues a new trial should have been granted on the ground of newly discovered evidence. A defendant is entitled to a new trial because of newly discovered evidence when the defendant shows:(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial;
(2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and,
(4) the new evidence is probably true and will probably bring about a different result on another trial.Keeter v. State, 74 S.W.3d 31, 36-37 (Tex.Crim.App. 2002). The trial court has discretion to decide whether to grant a new trial based upon newly discovered evidence, and its ruling will not be reversed absent an abuse of discretion. Id. at 37. Likewise, the trial judge determines the credibility of the witnesses and whether the new evidence is probably true. Id. Appellant argues the trial court should have granted the motion for new trial because "Appellant in the instant case can provide new evidence in the form of testimony the victim may have had a weapon." It appears appellant is referring to Smalley's testimony that Crockett's brother-in-law told her that Crockett's car had been parked around the corner from Stephanie's apartment and that "they" removed Crockett's car from the scene and found a gun and drugs in the car. We disagree that this evidence shows Crockett may have been armed when appellant shot him. That Crockett had a gun in his car around the corner from where he was does not show Crockett had a weapon at hand when appellant shot him. Appellant has not shown the new evidence would "probably bring about a different result on another trial." Keeter, 74 S.W.3d at 37. We conclude the trial court did not abuse its discretion in denying the motion for new trial on the ground of newly discovered evidence. The remainder of appellant's argument under his fifth point of error and his argument under his sixth point of error concern his assertion that he lacked effective assistance of counsel at trial. To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish: (1) trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions; and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance-that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "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, 812 (Tex.Crim.App. 1999). When the record contains no evidence of the reasoning behind trial counsel's actions, the record will not overcome the strong presumption of reasonable assistance, and we cannot conclude that counsel's performance was deficient. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003); see Jackson, 877 S.W.2d at 771; see also Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); Thompson, 9 S.W.3d at 814. Appellant asserts he "should be entitled to a new trial because his attorney's failure to investigate, to interview witnesses, and to produce witness [sic] at trial is not due to appellant's lack of due diligence." Appellant provides no explanation in either his fifth or his sixth point of error of what evidence his counsel should have presented. At the hearing on the motion for new trial, appellant testified his attorney did not have time to interview Horace Davis or Ms. Erris. Horace Davis was Edward Chapman's nephew. Ms. Erris was someone appellant talked to in Hunt County on the day of the incident, and appellant testified "she could have testified as to, you know, what I was saying or my-the state I was in." Appellant does not explain how Horace Davis's and Ms. Erris's testimony would have affected the outcome of the trial. Appellant also presented no evidence from his trial counsel of whether, in fact, counsel did not have time to interview the witnesses or why he did not call Horace Davis or Ms. Erris to testify. Appellant's claim of ineffective assistance is not firmly grounded in the record, and appellant has failed to overcome the presumption of reasonable assistance. We conclude the trial court did not abuse its discretion by denying appellant's motion for new trial, and we also conclude appellant has failed to show he lacked effective assistance of counsel at trial. We overrule appellant's fifth and sixth points of error. We affirm the trial court's judgment.