Johnny Lee Blackwell v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-90-197-CR JOHNNY LEE BLACKWELL, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT NO. 7429, HONORABLE CHARLES R. RAMSAY, JUDGE PER CURIAM A jury found appellant guilty of burglary of a habitation. Tex. Pen. Code Ann. § 30.02 (1989). The jury assessed punishment, enhanced by proof of seven previous felony convictions, at imprisonment for seventy-five years. On the morning of April 8, 1990, Glennis Porter returned to her home in rural Fayette County to find a strange car parked in her driveway. Porter also noticed that her back gate was open. As she walked toward this gate, Porter saw a man looking at her from the back of the house. Porter returned to her car to call for help on her two-way radio. As she did so, the man walked toward her carrying a screwdriver and threatened to kill her. Porter drove away. Subsequent investigation disclosed that Porter's house had been forcibly entered. There were pry marks on the patio doors. A television and a video cassette recorder with appellant's fingerprint on it had been moved to the living room floor. Appellant was arrested later that morning in possession of a watch taken from Porter's house. A screwdriver was found in appellant's car. In his first point of error, appellant complains of the admission in evidence of State's exhibits 4 through 13. These exhibits were photographs of the patio, the patio doors, and the pry marks. In some of the photographs, a screwdriver was inserted into the pry marks. The screwdriver shown in the photographs belonged to one of the investigating officers. Appellant objected to the admission of the photographs on the ground that they were irrelevant, and were "strictly intended to be suggestive to the State's theory that they have no evidence to support." In his brief to this Court, appellant argues that the photographs constituted an out of court experiment which the State used to suggest to the jury that the screwdriver found in appellant's car was the tool used to force entry. Assuming that the trial objection was sufficient to preserve this contention, we find it to be without merit. The patio doors had been forced open and Porter had seen the burglar carrying a screwdriver. This testimony clearly suggested that a screwdriver had been used to force open the doors, and the photographs were relevant to illustrate the testimony. Where pictorial evidence will help the jury understand oral testimony, the trial court does not abuse its discretion in admitting the photographs. Harris v. State, 661 S.W.2d 106, 107 (Tex. Cr. App. 1983). The fact that the screwdriver in the photographs was not the one found in appellant's possession went to the weight and not to the admissibility of the exhibits. See Ginther v. State, 672 S.W.2d 475 (Tex. Cr. App. 1984). Although timely requested by appellant, copies of exhibits 4 through 13 were not included in the appellate record originally filed in this Court. On the day he tendered his brief for filing, appellant also tendered a motion to supplement the record with these exhibits. The motion was granted. Tex. R. App. P. Ann. 55(b) (Pamph. 1991). Thereafter, at a hearing held April 23, it was determined that only two of the exhibits (numbers 6 and 11) could be found. These two exhibits were forwarded to this Court as part of a supplemental statement of facts. In a supplemental brief filed with leave of this Court, appellant contends that he is entitled to a new trial because he has been deprived of a complete record on appeal. Dunn v. State, 733 S.W.2d 212 (Tex. Cr. App. 1987); Austell v. State, 638 S.W.2d 888 (Tex. Cr. App. 1982); Sheffield v. State, 777 S.W.2d 743 (Tex. App. 1989, no pet.). See also Tex. R. App. P. Ann. 50(e) (Pamph. 1991). (1) Since appellant's supplemental brief was filed, this Court has received a second supplemental statement of facts, containing the record of a hearing held July 16. Included as part of this supplemental record are twenty-nine photographs identified at the hearing as the photographs taken by the arresting officers. These prints were made from negatives recently discovered by the State. Fifteen of these photographs show the patio of the Porter house and the pry marks on the doors, with and without the screwdriver that is the basis for appellant's first point of error. There is no dispute these photographs include trial exhibits 4 through 13, and given their similarity to each other, we deem it de minimis that the ten photographs introduced in evidence at trial could not be identified by the witnesses. We conclude that appellant has not been deprived of a complete record on appeal, and overrule the supplemental point of error. Finally, appellant contends that he did not receive effective assistance of counsel at the penalty stage of his trial. Ex parte Walker, 777 S.W.2d 427, 430-31 (Tex. Cr. App. 1989). Appellant complains first that counsel did not call any witnesses, but he fails to allege, much less demonstrate in the record, that there were witnesses available to testify on his behalf. Second, appellant complains that counsel's jury argument was too short, characterizing it as "perfunctory and ineffective." It is true that the argument was short, consuming only one-half page in the record. Counsel pointed out to the jury that appellant's many previous convictions were not for crimes of violence, stressed that appellant did not harm Glennis Porter, and asked the jury to be merciful in assessing punishment. We cannot agree with appellant's assertion that there was no plausible strategic basis for such an argument. We have examined the totality of trial counsel's representation of appellant. We find that counsel provided reasonably effective assistance. The judgment of conviction is affirmed. [Before Justices Powers, Aboussie and Kidd] Affirmed Filed: August 14, 1991 [Do Not Publish] 1. Whether, under the Rules of Appellate Procedure, an appellate court may permit a new point of error to be raised by supplemental brief is an unresolved question. See Boutwell v. State, 719 S.W.2d 164 at 173 (opinion of Davis, J.), and at 181 (opinion of Clinton, J.) (Tex. Cr. App. 1986). Although this Court believes that orderly appellate procedure dictates that all points of error be raised in the appellant's original brief, we also believe that we possess the discretion to permit appellants to raise additional points of error for good cause shown. See Tex. R. App. P. Ann. 2(b) (Pamph. 1991).