No. 05-03-00211-CR
Opinion Filed December 11, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 1 Collin County, Texas, Trial Court Cause No. 003-84953-00. Affirm.
Before Justices JAMES, FITZGERALD, and LANG-MIERS.
KERRY P. FITZGERALD, Justice.
Larry Michael VanWey appeals his conviction for assault. After the jury found appellant guilty, the trial court sentenced appellant to 365 days in jail, suspended imposition of the jail sentence for two years, placed appellant on community supervision, and imposed a fine of $300. Appellant brings two points of error on appeal contending he was denied his constitutional right to testify and that the evidence is factually insufficient to support his conviction. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Joshua Green testified he met Amy Cantrell at a December 31, 1999 New Year's Eve party and had an affair with her until May 29, 2000, even though Green knew Cantrell was appellant's common-law wife and had two children with appellant. During their affair, Cantrell would give Green money to purchase crack cocaine for them to smoke together. On the morning of May 29, 2000, Cantrell phoned Green and told him she wanted some cocaine. Cantrell picked up Green in her car to drive him to his brother's house. Green directed her where to turn, but at one point, she turned left instead of right. They then drove past appellant's pickup truck, which followed them into a residential neighborhood. Green was afraid there would be an altercation with appellant, and he asked Cantrell to turn around and take him home, but she refused. Cantrell pulled over to the side of the road and told Green to get out and run. Green got out of Cantrell's car, but as he tried to run away, appellant grabbed him and threw him to the ground. Appellant hit Green in the head, kicked him in the chest and groin, and broke his arm. When Green could get up, he told a woman who had come out of a house to call the police. An ambulance soon arrived and took Green to the hospital where he was treated and released the same day. Green was off work from his job as a carpenter for four weeks due to his injuries. Kelly Johnston testified she heard shouting outside her house. She looked out the window and saw a light-haired man kick a dark-haired man who was lying on the ground. Johnston stepped away from the window and called the police. When Johnston looked back out the window, she saw a green truck driving away, the light-haired man was gone, and the dark-haired man was still lying on the ground. Frisco Police Sergeant Bryan Sartain soon arrived, saw Green "laid out in the front yard and appeared to have been assaulted," and summoned an ambulance. Green was taken to the hospital. Sartain talked to appellant that evening by telephone. Appellant told Sartain he was having "marital issues" with Cantrell and that he followed Cantrell and Green and assaulted Green because Green was "dealing crack" to Cantrell. Appellant told Sartain he "didn't know what Mr. Green's intentions were when they both came face-to-face and that he initiated the assaultive behavior in order to prevent being assaulted himself." Sartain specifically recalled appellant saying that he did assault Green. The officer was asked whether appellant said he was just defending himself. The officer responded that at the end of the conversation, appellant stated, "Green had jumped out of the truck and that he [appellant] wasn't really sure what Mr. Green was going to do, so he [appellant] initiated a defensive action," that "Mr. Green hadn't assaulted him at that point, and he [appellant] made the initial attack on Mr. Green." Appellant told the officer "he [appellant] swung first." At the end of appellant's statement, appellant "was claiming self defense." When Sartain interviewed Green, Green told him he and Cantrell were going to Plano to go shopping; Sartain later learned Green had lied to him and that he and Cantrell were going to purchase cocaine. Glenda Covington, who was a detective with the Frisco Police Department in May and June 2000, testified she talked to appellant the week after the offense. Appellant told her his motivation for confronting Green was "[h]is wife and the use of an illegal drug." Appellant told Covington he had followed Green and Cantrell in his truck, and when they stopped, he got out of his truck before Green got out of Cantrell's car. Appellant told Covington he was not injured in the altercation with Green. Cantrell testified she met Green at a New Year's Eve party on December 31, 1999. Until May 29, 2000, Green would get money from Cantrell and would supply her with crack cocaine. On at least one occasion, Cantrell drove Green to the location where he purchased cocaine. Cantrell testified she would smoke crack with Green, but she denied having any kind of sexual relationship with him. On May 28, 2000, Green called Cantrell's and appellant's house throughout the day and night. The next morning, Cantrell picked up Green and told him, "you have to quit calling my house; I do not want to do this." Cantrell followed Green's directions and turned left into a residential neighborhood when he told her to do so. As they drove, Green noticed appellant's pickup, which started following them. Green became angry and demanded that Cantrell stop the car. Green stopped, and appellant parked behind her. As Green got out of Cantrell's car, appellant exited his truck and walked toward her car. She did not actually recall who got out first. Both began yelling profanities at each other. She thought Green was the first aggressor and started the fight, explaining that she saw Green standing beside her car and yelling at appellant. Cantrell recalled looking in her rear-view mirror and seeing appellant and Green standing at the rear of her car, but they were not fighting. She expressly denied seeing how the physical confrontation started and she did not see much of the ensuing fight because she was more concerned about getting her children out of appellant's truck and putting them in her car. At one point she remembered seeing them both rolling on the ground. After she placed the children in her car, Cantrell got into her car and drove away. FACTUAL SUFFICIENCY OF THE EVIDENCE
Appellant contends the evidence is factually insufficient to support the jury's finding against the justification of self-defense. In reviewing the factual sufficiency of the jury's rejection of self-defense, the appellate court "reviews all of the evidence in a neutral light and asks whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The jury is the sole judge of the facts, the witnesses' credibility and the weight to be given to the evidence. Clewis, 922 S.W.2d at 129. Accordingly, the jury may choose to believe or not to believe any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1985). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). "[A] person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." See Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). The jury was instructed that appellant's use of force was justified if he believed he was under attack or attempted attack from Green and that he reasonably believed that the force he used was immediately necessary to protect himself against Green's attack or attempted attack. We first must consider whether appellant raised self defense. The defendant has the burden of coming forward with evidence sufficiently raising the issue. Riddle v. State, 888 S.W.2d 1, 6 (Tex.Crim.App. 1994). "The issue before this Court is whether, if the testimony is believed, a case of self-defense has been made." Rodriquez v. State, 544 S.W.2d 382, 383 (Tex.Crim. App. 1976). If there is no evidence that appellant used force against Green to the degree he reasonably believed the force to be immediately necessary to protect himself against Green's use or attempted use of unlawful force, appellant has not raised self-defense. See Lavern v. State, 48 S.W.3d 356, 361 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). Appellant argues the evidence is factually insufficient because Green's testimony was not credible. Appellant emphasizes Green initially denied supplying Cantrell with cocaine and then admitted he would buy cocaine for her. Appellant also points to inconsistencies between Green's and Cantrell's testimony about the nature of their relationship, where and from whom Green would acquire the cocaine, and the events occurring on May 29, 2000. However, none of this evidence shows appellant's use of force was in response to an attack or attempted attack by Green. Officer Sartain's testimony concerning his telephone conversation with appellant shows appellant did not know what to expect from Green and that appellant attacked Green by swinging at him first. While appellant may have labored under the belief his conduct was defensive in nature and therefore constituted self defense, the evidence must establish each element of self defense in order to raise the defense of self defense. The record contains no evidence Green attacked or attempted to attack appellant and that appellant reasonably believed force was immediately necessary to protect himself against Green's use or attempted use of unlawful force. Appellant's conclusional statement to the officer that he "was claiming self defense," particularly in view of his detailed account of the circumstances to the officer, is not sufficient to establish self defense. See Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). As self defense was not raised by the evidence, the defense was not properly before the jury. Hence, the jury properly rejected the defense of self defense. Even if we assume self defense was raised by the evidence, the jury could conclude from the testimony that appellant's understanding of self-defense was incorrect under the law as included in the jury charge and that appellant did not reasonably believe Green was attacking him or attempting to attack him when he assaulted Green. Furthermore, Johnston testified she saw a light-haired man kick a dark-haired man as the dark-haired man lay on the ground, and the jury could conclude from this evidence that appellant kicked Green as Green lay on the ground. The jury could have determined that appellant could not reasonably believe this blow was immediately necessary to protect himself as Green lay on the ground. After reviewing all the evidence, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error. RIGHT TO TESTIFY
Appellant also contends he was denied his constitutional right under the Sixth Amendment to testify in his own behalf at his trial. Appellant first raised this issue in his motion for new trial. Accordingly, we consider appellant's point of error to be one challenging the denial of his motion for new trial. "A trial court's ruling denying a defendant's motion for new trial is reviewed under an abuse of discretion standard. We do not substitute our judgment for that of the trial court, but simply determine whether the trial court's . . . analysis was arbitrary or unreasonable." Salazar v. State, 38 S.W.3d 141, 147 (Tex.Crim. App. 2001). The trial court determines any fact issues presented, and when there is conflicting evidence the court does not abuse its discretion by either granting or denying the motion for new trial. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim. App. 1995); State v. Pilkenton, 7 S.W.3d 291, 292 (Tex. App.-Beaumont 1999, pet. ref'd). A defendant has a constitutional right to testify, or not to testify, in his own defense as he may choose; the defendant has the "ultimate authority" to make this decision. Jones v. Barnes, 463 U.S. 745, 751 (1983); Harris v. New York, 401 U.S. 222, 225 (1971); In re Oliver, 333 U.S. 257, 273 (1948); see also Rock v. Arkansas, 483 U.S. 44, 49 (1987) ("At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense."). The right is granted to the defendant personally and cannot be waived by counsel. Rock, 483 U.S. at 51-53 (1987); Brown v. Artuz, 124 F.3d 73, 78 (2nd Cir. 1997); see Burnett v. State, 642 S.W.2d 765, 768 n. 8 (Tex.Crim.App. 1982) (defendant faces three personal decisions during trial: how to plead, whether to have a jury trial, and whether to testify). A waiver of the right to testify must be made knowingly and voluntarily. Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997). Appellant contended in his motion for new trial he was denied his constitutional right to testify. The motion for new trial asserts appellant told trial counsel he wanted to testify but that trial counsel rested the defense without consulting appellant and without calling him as a witness. Appellant testified at the hearing on his motion for new trial that he retained defense counsel shortly before his first court appearance and talked to her about the case during the two-year period before his trial. They discussed facts, defenses, and possible witnesses. Appellant told his trial counsel he wanted to testify and that she told him she "wanted me to testify from the beginning." They visited several times before trial about appellant testifying. Although appellant had no conversations with counsel during trial about his testifying, appellant expected to testify. However, counsel rested appellant's case without calling him to testify. Appellant denied that, prior to trial, his trial counsel ever told him she was not going to call him as a witness or that he ever told her he did not want to testify at trial. Appellant also denied telling her during trial that he did not want to testify. When trial counsel rested in behalf of the defense without calling him as a witness, she did so without his permission and without consulting him about testifying. Appellant denied giving up his right to testify at trial and stated he wanted to testify during his trial and would do so if he were given a new trial. During cross-examination of appellant, the prosecutor asked appellant what his trial testimony would be if he were given a new trial. Appellant's attorney objected that appellant's trial testimony was irrelevant and that he was not asserting ineffective assistance of trial counsel. The trial court overruled the objection, and appellant stated, "I would have told the jury that I did not attack this man, he came at me." Appellant also testified his trial counsel did not do a good job "because she didn't do what she said she was going to do," which denied him a fair trial. Appellant's trial counsel testified that as a general practice, she discusses with clients their right not to testify. Although trial counsel had no specific recollection, she believed she discussed with appellant his right to testify. Trial counsel testified that during preparation for trial and during the course of the trial, it was her understanding appellant did not intend to testify. She did not remember appellant ever telling her he wanted to testify or to tell "his story." Trial counsel testified she did not intend to call appellant as a witness during the trial, a decision "[b]ased on my previous experience as a criminal defense attorney and on my conversations with [appellant] as to why I would have discouraged [sic] him not to testify." Trial counsel recalled previous trials in which she called clients to testify as witnesses even though she had counseled them not to testify. If appellant had told her he wanted to testify, she would have tried to discourage him from doing so but would have called him as a witness. When trial counsel rested appellant's case, appellant did not ask counsel why she did not call him to testify. Before the return of the jury verdict, appellant never expressed that he wanted to testify. At no time did appellant ever ask her when he was going to testify. Trial counsel said she did not have appellant sign a written waiver of his right to testify and that she did not request the court to admonish appellant about his right to testify. Finally, before resting, she did not talk to appellant about whether he did or did not want to testify. We must determine whether the record establishes appellant was denied his right to testify in his own defense. Appellant testified at the hearing on the motion for new trial that he had discussed with trial counsel his right to testify and that he specifically told her he wanted to testify in order to tell his story; and that trial counsel told appellant she wanted him to testify. Appellant, however, did not testify that he told counsel during the trial of his desire to testify or that he complained to her before the return of the guilty verdict about not calling him as a witness. Trial counsel contradicted appellant's testimony on this critical issue. Trial counsel understood appellant did not want to testify based on her legal experience and her conversations with appellant before trial. She recalled no instance during which appellant ever told her he wanted to testify; the opposite was true. Counsel said she would have called appellant as a witness if appellant had expressed the desire to testify. Appellant and trial counsel both testified that, during the trial itself, appellant never told trial counsel he wanted to testify or voiced any complaint when she rested his case without calling him to testify. Their testimony conflicted regarding whether appellant told his counsel of his desire to testify and whether counsel thought appellant should testify. The upshot of appellant's contention is that he was denied his constitutional right to testify because his counsel, aware of his desire to testify and agreeable to this trial strategy, failed to call him as a witness. Appellant does not contend the trial court or the prosecutor interfered with his right to testify. The evidence before the trial court showed appellant was aware of his rights to testify or to remain silent. The record also shows appellant knowingly and intelligently waived the right to testify. It is undisputed appellant participated in numerous pretrial conferences with trial counsel over a two-year period. Appellant claims trial counsel was amenable to his testifying and agreed to call him as a witness. Trial counsel, on the other hand, was adamant that no such strategy was contemplated and stated she had always discouraged appellant from testifying. Based in part upon her pretrial conferences with appellant in anticipation of trial, trial counsel believed appellant did not intend to testify. In fact, she did not recall appellant ever telling her he wanted to testify or to tell "his story." Thus, contrary to appellant's assertion on appeal, trial counsel's testimony contradicted appellant's testimony. In support of his contention he was denied his right to testify, appellant argues he never signed a written waiver of his right to testify. However, the law does not require the defendant to execute a waiver, and the execution of a written waiver of the right to testify is not a usual procedure. The record shows that during voir dire examination, defense counsel expressly questioned the panel about a person's rights under the Fifth Amendment not to testify and, at one juncture, asked the panel: "Other than guilt or innocence, what are some reasons why a person would not testify and expose themselves [sic] to cross examination through a DA? Can anybody think of a reason?" (Emphasis added.) Thus, the defense's trial strategy of not having appellant testify appears in proceedings conducted in appellant's presence. See Daniels v. Lee, 316 F.3d 477, 490 (4th Cir.), cert. denied, 124 S.Ct. 137 (2003). The record also shows appellant voiced no complaint that he had not been called as a witness in his own behalf. It is undisputed appellant did not register his displeasure in any form to trial counsel or any other person, including the trial court, during the entire course of the jury trial through receipt of the guilty verdict. The record contains no suggestion that trial counsel perpetrated any force, coercion, intimidation, or fraud upon appellant. The record does show evidence appellant followed the advice of his trial counsel and acquiesced to her strategy. Given the conflicts in the testimony at the hearing on the motion for new trial, the court, as the trier of fact, could have determined appellant, after conferring with his counsel prior to trial, had decided to follow and did follow his counsel's advice to remain silent, and that he knowingly and intelligently waived his right to testify. Accordingly, we conclude appellant has not shown he was denied his constitutional right to testify in his own behalf. We hold the trial court did not abuse its discretion by denying appellant's motion for new trial. We overrule appellant's first point of error. We affirm the trial court's judgment.