Opinion
NO. 12-11-00118-CR
04-30-2012
TIMOTHY THOMPSON, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 217TH JUDICIAL DISTRICT COURT ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
A jury convicted Timothy Thompson of arson of a habitation. The trial court assessed his punishment at imprisonment for seventeen years. In two issues, Appellant contends that his trial counsel was ineffective (1) for failing to object to the State's calling two witnesses for the sole purpose of impeaching them with their prior inconsistent statements, and (2) for failure to request a jury instruction informing the jury that they were not to consider the prior inconsistent statements as evidence of guilt. We affirm.
BACKGROUND
Appellant and his wife, LaRhonda Thompson, rented a house in Lufkin, which was severely damaged by fire. After a thorough investigation of the damages to the home and contents, Captain LeeFrann Skelton of the Lufkin Fire Department concluded that the fire originated in bedroom two and that the fire was intentionally set. Captain Steve McCool of the Lufkin Fire Department also concluded that the fire was intentionally set. Both Captain McCool and Chief Skelton continued to investigate in order to determine who started the fire.
Appellant first told Captain Ledford that he had left home approximately one hour before the fire. In a later interview, he told Captain McCool conflicting stories about how he learned of the fire. He told Captain McCool that the fire was burning in the children's bedroom when he got back to the house and that he had thrown three buckets of water on it in an effort to extinguish it. He said sparks were coming from an electrical outlet.
At trial, Appellant testified that he had allowed, Linda, a female friend, into the house to smoke crack cocaine on the night of the fire. He admitted giving the woman a candle to use in smoking the cocaine. He believed the woman accidentally started the fire. He testified that he was at home when the fire began. He heard the smoke detectors go off and saw fire coming from the bedroom, but he was unable to extinguish it. He admitted he had lied about sparks coming from the electric outlet, but said that he was only repeating what Linda told him.
Appellant's wife testified that she left the house at 5:30 p.m. the night of the fire with her three children. She returned briefly at 9:00 p.m. to find the front door wide open, and Alonzo Turner and Andre Monroe in the front yard. Appellant was not there and nothing was out of the ordinary in the home. He told her that he did not start the fire; however, he became unusually upset because "everyone else" was saying that he started it. Finally, Appellant told his wife that he had let a woman in the house to smoke crack, and he believed that was how the fire had started.
Alonzo Turner testified that after Ms. Thompson came by the house in the early evening hours, Appellant appeared agitated and worried. Turner left for a club down the street from Appellant's house. When he returned a short time later, Appellant was still agitated and "upset," and all the living room furniture was overturned. Turner testified that Appellant went to the back of the house. He then heard windows breaking. When Appellant returned to the living room, he told Turner, "Now she [Ms. Thompson] [will] have a reason to stay home. She can clean this mess up." Turner left the house, but came back a short time later, because he was worried about Appellant. He heard an odd sound coming from inside the house. He called out for Appellant, but Appellant did not respond. He went into the house and down the hallway from where he could see a small fire had started. He asked Appellant what he was doing, but Appellant did not respond. Appellant was standing at the wall looking at the fire with shock. Turner immediately fled the scene. Turner unequivocally stated that he did not see Appellant start the fire.
Jaqueline Johnson said she came to the house at around 7:30 to 8:00 p.m. Appellant told her that he was upset with Ms. Thompson, because they were supposed to go to a concert that night, but Ms. Thompson never returned. Johnson testified that she heard Appellant tell someone on his cell phone that, if it were not for his children, he would burn the house down. Johnson left, but she was still within two blocks from Appellant's house when she heard a loud "boom" come from the house. When she looked back, she saw that the house was on fire. She did not see Appellant enter or leave the house while she was there.
The State subpoenaed Twonda Samuel to testify. The prosecutor initiated the direct examination of Samuel by asking, "Ms. Samuel, you really don't want to be here today. Right[?]" Her answers clearly showed that she did not want to testify and came only in response to the subpoena. The State immediately began to question Samuel about a prior statement she purportedly made to Captain McCool in which she stated that she overheard Appellant tell someone on his cell phone that "he burned . . . his own house down and did some stupid stuff." She repeatedly vehemently denied ever hearing Appellant say that he burned the house down. She denied telling the fire marshal that he did, and she denied ever writing or signing a written statement to that effect. The State made no effort to elicit any further testimony from Samuel.
The State initiated the direct examination of Andre Monroe by asking, "First of all, I know you don't want to be here today. Right[?]" Monroe denied having seen anyone light the fire. He denied that he ever gave a statement to the investigators stating that he saw Appellant light the fire. He remembered that a week before the trial, he met with the prosecutor. He testified that he told the prosecutor at that time that the statement was a fraud and that he was not going to testify.
The State recalled Chief Skelton who testified Monroe told her that he saw Appellant start the fire in the middle bedroom with a lighter and a bag of clothes. She told the court that she wrote the statement and read it to him. She testified that he said the statement was accurate and then he signed it. The trial court admitted Monroe's prior written statement that was inconsistent with his trial testimony over Appellant's objection that it was cumulative.
The State recalled Captain McCool, who testified that he interviewed Twonda Samuel during his investigation of the fire's origin. During the interview, she wrote a short statement that said she heard Appellant tell Stephan on his cell phone "that he burned down his own house . . . and did some stupid stuff." Samuel's statement was admitted over Appellant's objection under Texas Rules of Evidence. 612 and 613.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, Appellant claims his trial counsel's performance was deficient in not objecting to the State's calling Samuel and Monroe to testify because it was clear the State's sole purpose for calling Samuel and Monroe was to impeach them with their prior inconsistent statements. In his second issue, he contends his counsel was ineffective in failing to request a jury instruction informing the jury that they could not consider the impeachment evidence as evidence of guilt. The State contends the record does not reflect that its only purpose in calling the two witnesses was to introduce inadmissible hearsay through their prior inconsistent statements. Standard of Review
The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), and adopted for Texas ineffective assistance claims in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To prevail on his claim of ineffective assistance, an appellant must show (1) that his attorney's representation fell below the standard of prevailing professional norms, and (2) that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
Our review of counsel's representation is highly deferential; we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. This court will not second guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). 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).
The constitutional right to counsel does not entitle a defendant to errorless counsel. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was ineffective, the reviewing court must consider the totality of the circumstances present in the case. Thompson, 9 S.W.3d at 813.
A defendant must overcome the presumption that, under the circumstances, the challenged conduct of the defense might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd). A reviewing court may not base a finding of ineffectiveness on speculation. Henderson, 29 S.W.3d at 624. Applicable Law
Rule 607 allows a party to attack the credibility of its own witness. TEX. R. EVID. 607. A witness may be impeached with a prior statement that is inconsistent with trial testimony. Ayers v. State, 606 S.W.2d 936, 939 (Tex. Crim. App. 1980). Testimony admitted only for impeachment purposes is otherwise without probative value and cannot be considered as substantive evidence. Key v. State, 492 S.W.2d 514, 516 (Tex. Crim. App. 1973); Adams v. State, 862 S.W.2d 139, 147 (Tex. App.-San Antonio 1993, pet. ref'd). Therefore, in the absence of an applicable hearsay exception, a witness's prior inconsistent statement may be used to impeach the witness's credibility, but it cannot be used as primary evidence of guilt. Jernigan v. State, 589 S.W.2d 681, 687 n.8 (Tex. Crim. App. 1979).
The prosecution may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony as a means to circumvent the hearsay rule. Hughes v. State, 4 S.W.3d 1, 4-5 (Tex. Crim. App. 1999); Pruitt v. State, 770 S.W.2d 909, 911 (Tex. App.-Fort Worth 1989, pet ref'd). A party calling a witness for the sole purpose of adducing a prior inconsistent statement can only profit if the jury misuses the evidence by considering it for the truth of the matter asserted. Therefore, when a witness is called solely for that purpose, the impeachment evidence must be excluded under Rule 403's balancing test because its probative value is always outweighed by its prejudicial effect. Hughes, 4 S.W.3d at 5. Discussion
Appellant contends the State's sole purpose in calling Twonda Samuel and Andre Monroe was to introduce Samuel's statement to Chief Skelton that she had overheard Appellant confess that he started the fire and Monroe's prior statement that he saw Appellant start the fire.
It is apparent from the manner in which the State initiated direct examination that it believed both to be hostile witnesses. The record shows that a week before trial, Monroe had told the prosecutor that he did not make the statement attributed to him and that he would not testify. In its interrogation of Samuel, the State made no attempt to elicit any other evidence. The prosecutor's direct examination of the afflicted Monroe yielded almost no substantive evidence of value to the State's case. The State quickly produced Chief Skelton and Captain McCool in order to introduce Samuel's and Monroe's prior inconsistent statements. It is apparent that the State's primary purpose, if not its only purpose in calling the two witnesses they knew to be hostile was to introduce the two prior inconsistent statements in evidence.
It is difficult to envision a defense trial strategy that would not seek to exclude the only direct evidence of the defendant's guilt. And it is undeniable that trial counsel should have requested a jury instruction limiting the jury's consideration of the impeachment evidence. However, we need not speculate on trial counsel's strategy. Nor do we need to determine if the omissions alleged are errors so significant that they demonstrate that trial counsel's fell below prevailing professional norms.
The second component under Strickland requires a showing that the trial counsel's errors were so serious that they deprived the appellant of a fair trial - one whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The appellant must show that, but for counsel's errors, there is a reasonable probability that the result of the trial would have been different. Id. at 466 U.S. at 694, 104 S. Ct. at 2068.
As Appellant points out, the inconsistent statements of Samuel and Monroe are the only direct evidence of his guilt. But other circumstantial evidence points directly at Appellant as the author of the blaze.
Alonzo Turner testified that Appellant was almost uncontrollably enraged by his wife's absence-so enraged that he overturned the living room furniture and dumped the trash from the backyard in the living room. Turner returned later to find Appellant alone in the hall looking at the fire. He did not respond when Turner asked him what he was doing.
Just before the fire, Jaqueline Johnson talked to Appellant outside the front gate. She heard him tell someone on his cell phone that if it were not for his children, he would burn the house down. Within the time it took her to go two blocks, she heard a boom and looked back to see that the house was on fire.
Appellant gave conflicting versions of where he was when the fire started. His ultimate explanation that a female friend (whom no one else saw) started the blaze with a candle while smoking crack cocaine is scarcely credible.
Even if trial counsel had successfully objected to the introduction of both of the prior inconsistent statements, there is no reasonable probability that the trial's result would have been any different. Appellant has failed to satisfy the second component of Strickland. Appellant's issues one and two are overruled.
DISPOSITION
The judgment is affirmed.
BILL BASS
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals sitting by assignment.