Jones, Frederick M. v. State

Opinion issued November 21, 2002 In The Court of Appeals For The First District of Texas NO. 01-99-00673-CR FREDERICK M. JONES, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 801,821 OPINION ON MOTION FOR REHEARING Appellant, Frederick M. Jones, has filed a motion for rehearing and a motion for rehearing en banc. We deny rehearing, but withdraw our opinion and judgment of September 27, 2001, and issue this new opinion in its stead. Accordingly, we deny the motion for rehearing en banc as moot. A jury found appellant guilty of the offense of aggravated assault as charged in the indictment, and, after finding the two enhancement paragraphs true, assessed appellant’s punishment at confinement for 33 years. The trial court entered an affirmative deadly weapon finding in the judgment. We affirm. In four issues, appellant asserts: (1) the trial court erred by not including the definition of “serious bodily injury” in the jury charge; (2) appellant received ineffective assistance of counsel at the guilt/innocence phase of his trial; (3) the trial court erred by including an article 37.07 instruction on parole law in the charge when appellant was ineligible for mandatory supervision; and (4) he received ineffective assistance of counsel at the punishment phase of his trial. BACKGROUNDJust before midnight on New Years Eve, 16-year-old complainant Eric Neil and his friends were shooting bottle rockets in their neighborhood. When one of the bottle rockets shot off in the direction of a house instead of straight up into the air, appellant approached complainant and his friends. An altercation ensued, and appellant hit complainant on the left side of his face with a beer bottle. Complainant felt his face open wide and blood began pouring from it. Complainant was taken to the hospital where he received 34 stitches to his face, neck and ear.DISCUSSION Jury Charge In his first issue, appellant asserts the trial court committed reversible error by not including the definition of serious bodily injury in the jury charge. The indictment stated that appellant “. . . unlawfully, intentionally, and knowingly cause[d] bodily injury to [complainant] by using a deadly weapon, namely, a glass bottle.” The jury charge stated that “[a] person commits aggravated assault if he commits assault, as hereinbefore defined, and he uses or exhibits a deadly weapon during the commission of the assault.” See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon 1994). The jury charge defined “deadly weapon” as “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.” The jury found appellant guilty as charged in the indictment. Appellant complains on appeal that because the bottle used in the commission of the offense was not a deadly weapon per se, and the instructions required the jury to determine if the bottle was capable of causing death or serious bodily injury, the trial court’s failure to sua sponte include a definition on serious bodily injury constituted reversible error. The State, through the testimony of Deputy Alexander, put on uncontroverted evidence that a glass bottle can be a deadly weapon capable of causing death or serious bodily injury. Complainant was hit in the head with the glass bottle with enough force to cause injuries requiring 34 stitches, and leaving a permanent scar. Complainant lost a large amount of blood as a result of the injury. The law is clear that a glass bottle in the manner of its use can be a deadly weapon. Enriquez v. State, 826 S.W.2d 191, 193 (Tex. App.—El Paso 1992, no pet.); Keane v. State, 677 S.W.2d 194, 198 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d). When the State proves the use of a deadly weapon, proof of actual serious bodily injury is not an issue. Madden v. State, 911 S.W.2d 236, 244 (Tex. App.—Waco 1995, pet. ref’d). In light of the uncontroverted evidence, the trial court did not err by not including, sua sponte, a definition of serious bodily injury in the jury charge. Accordingly, we overrule appellant’s first issue. Article 37.07 Instruction Charge Error In issue three, appellant asserts that he was denied due process of law and due course of law because the jury instruction mandated by Texas Code of Criminal Procedure article 37.07, section 4(a), that appellant’s sentence might be reduced through award of good-conduct time, was unconstitutional as applied to him because he was not eligible for mandatory supervision or to have good-conduct time considered in determining his parole eligibility date. See Texas Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2002). After we issued our original opinion, the Court of Criminal Appeals considered and rejected the same argument in Luquis v. State, holding the article 37.07, section 4(a) instruction is not unconstitutional, for violating due process or due course of law, as applied to a defendant who is ineligible for good-conduct-time credit. 72 S.W.3d 355 (Tex. Crim. App. 2002). The only exception to the holding in Luquis is if the record shows that the jury was confused by the instruction. See id. at 366-67. As in Luquis, nothing in the record suggests jurors discussed, considered, or tried to apply what they were told about good conduct time and parole. The jury did not send out any notes indicating or expressing confusion about the possible application of good conduct in this case. While the jury assessed punishment at 33 years confinement, the punishment range was 25 to 99 years confinement, or life, because of appellant’s two prior felony convictions. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2002). The State did not mention good-conduct time in closing argument. Defense counsel accurately argued during closing, as follows: Under the law applicable in this case if the defendant is sentenced to a term of imprisonment he will not become eligible for parole until the actual time served equals one-half of his sentence imposed or 30 years, whichever is less, without consideration of any good time he may [have] earned. And then even at that point, at half of it, eligibility for parole does not guarantee that parole will be granted. Then it goes on to the next paragraph. After you do that half you can’t consider whether he might get good time or parole because that depends on the parole authorities, but you are given this as an exacto. He is not eligible for parole until he does half of it without any consideration, without—no matter how much good time he gets or whatever he does. Half of what you give him. And that’s my only argument considering what happened and the circumstances here, isn’t 25 years enough. There is nothing in the record to show the jury charge or arguments confused the jury. Accordingly, we hold that the general rule of Luquis, that the parole and good-conduct-time instruction is not unconstitutional as applied, controls the disposition of this issue. See id. at 368. Accordingly, we overrule issue three. Ineffective Assistance of Counsel In his second issue, appellant asserts that he received ineffective assistance of counsel at the guilt/innocence phase of his trial because his attorney (1) did not fully investigate the facts of the case, (2) did not present all available evidence and arguments, (3) did not seek out and interview potential witnesses, (4) did not request a limiting instruction on impeachment testimony by a defense witness, and (5) did not object to the lack of a definition of serious bodily injury in the jury charge. In his fourth issue, appellant contends he received ineffective assistance of counsel at the punishment phase of his trial because his trial counsel did not object to the statutorily mandated parole instruction being included in the jury charge. Appellant filed a motion for new trial asserting these grounds, and a hearing was conducted. The standard of review for evaluating claims of ineffective assistance of counsel at the guilt-innocence phase is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). The same standard applies for claims of ineffective assistance of counsel at noncapital sentencing proceedings. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). Appellant must show both that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the sixth amendment, and (2) but for the counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Hernandez, 988 S.W.2d at 770. It is the defendant’s burden to prove ineffective assistance of counsel. Id. Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. A claim of ineffective assistance of counsel must be firmly supported by the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). An appellate court will not make a finding of ineffectiveness based on speculation. Gamble, 916 S.W.2d at 93. 1. Investigation of the Facts and Calling of Witnesses An attorney representing a criminal defendant is charged with making an independent investigation of the facts of the case. McFarland, 928 S.W.2d at 501. This encompasses the duty to conduct a legal and factual investigation and to seek out and interview potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Defense counsel should not, as a matter of course, rely on the veracity either of his client’s version of the facts or witness statements in the State’s file. McFarland, 928 S.W.2d at 501. However, the duty to conduct an investigation, in the wake of Strickland, is not absolute. McFarland, 928 S.W.2d at 501. Under Strickland, an attorney has the duty “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. A decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to trial counsel’s judgment. Id. We will not reverse a conviction unless the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced and there is a reasonable probability that, but for counsel’s failure to advance the defense, the result of the proceedings would have been different. Id.; see also Cantu v. State, 993 S.W.d 712, 718 (Tex. App.—San Antonio 1999, pet. ref’d). Appellant contends that his trial counsel was ineffective because he never visited the scene of the charged offense and he did not hire an investigator. As a result, appellant maintains his trial counsel did not discover and interview five witnesses, and, therefore, did not present all available exculpatory evidence. Regardless of whether the five witnesses would have enhanced appellant’s defense, the question to be answered here is whether appellant’s trial counsel was ineffective in failing to discover the witnesses, thereby precluding appellant from presenting a viable defense. At the hearing on the motion for new trial, appellant testified that he provided his trial counsel with the identity of the five potential witnesses. According to appellant, these witnesses would have provided support for his defensive theory that the offense was committed by appellant’s brother, not appellant. The record reflects that defense counsel called two witnesses at trial—appellant’s brother and appellant’s wife; each testified it was appellant’s brother who struck complainant with the bottle. Appellant’s trial counsel also testified at the hearing on the motion for new trial. He stated that he did not visit the scene where the incident occurred and did not recall interviewing any of the five potential witnesses. To explain why he did not interview the witnesses, appellant’s trial counsel stated that he “check[ed] out” information provided to him by appellant. This testimony implies that, when appellant told defense counsel about potential witnesses, defense counsel then checked out those witnesses. Because defense counsel did not recall interviewing the five witnesses and the witnesses were not called at trial, it can be reasonably inferred that appellant failed to tell defense counsel about those witnesses. Considering that inference in conjunction with the fact that the defense counsel called only appellant’s brother and appellant’s wife to testify that appellant’s brother committed the offense, it can also be reasonably inferred that appellant provided trial counsel with only the names of appellant’s brother and wife. At the hearing on the motion for new trial, appellant’s trial counsel also explained that he did not interview the neighbors who lived near the crime scene because he advised appellant that he should hire an investigator. Defense counsel stated that appellant chose not to hire an investigator and “didn’t spend the money for an investigator.” Although we do not condone defense counsel’s placement of the burden to investigate on his client, we cannot find that defense counsel’s failure to conduct further investigation of the scene was deficient to the point that appellant received ineffective assistance of counsel. When viewed in the context of appellant providing defense counsel with only the names of appellant’s brother and wife and failing to provide the names of the five witnesses, as discussed above, defense counsel’s failure to conduct further investigation was plausible. Defense counsel may have concluded in his professional judgment that, based on the information provided by appellant, any further investigation would not have been fruitful. We cannot say the trial court abused its discretion in concluding that counsel’s failure to locate the five witnesses did not amount to ineffective assistance of counsel. 2. Failure to Request a Limiting Instruction on Impeachment Testimony of Defense Witness The State impeached appellant’s brother with his prior inconsistent statement to a law enforcement officer, “I didn’t do this.” Immediately afterwards, the State asked, “But now in court when your brother is on trial you’re saying you caused the injury?” The brother answered “yes.” When it is clear that testimony is being used only for impeachment purposes, no limiting instruction is necessary. Cantrell v. State, 731 S.W.2d 84, 95 (Tex. Crim. App. 1987). It was clear the prosecutor was simply impeaching the brother with his prior inconsistent statement. As a result, no limiting instruction was necessary, and appellant’s trial counsel was not ineffective. See id. 3. Failure to Object to the Lack of a Definition of Serious Bodily Injury in the Jury Charge As discussed under point of error one, it was not necessary for the jury charge to define serious bodily injury. As a result, appellant’s trial counsel was not ineffective for failing to object to the jury charge because the definition was not included. 4. Failure to Object to the Article 37.07 Instruction Appellant also asserts his trial counsel was ineffective because he did not object to the inclusion of an article 37.07 instruction on parole in the instructions to the jury at punishment. As discussed under point of error three, the article 37.07 instruction was properly included in the charge. We overrule appellant’s second and fourth issues. We affirm the judgment. Margaret Garner Mirabal Justice Panel consists of Justices Mirabal, Taft, and Duggan. Justice Taft concurs in the disposition of issue one on the basis that any error is harmless error and joins the remainder of the opinion. Do not publish. Tex. R. App. P. 47.4.