in Re: Harland Vetter

6-96-028-CV Long Trusts v. Dowd In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00092-CV ______________________________ IN RE: HARLAND VETTER                                                                                                                                                              Original Mandamus Proceeding                                                                                                                                                                                        Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Ross MEMORANDUM OPINION           Harland Vetter has filed a petition for writ of mandamus in which he asks us to order the court reporter of the 1st Judicial District Court in Sabine County to immediately prepare and file the record of his trial. This Court has jurisdiction to issue a writ of mandamus against a "judge of a district or county court in the court of appeals district; . . . ." Tex. Gov't Code Ann. § 22.221(b) (Vernon 2004). We do not have jurisdiction to issue a writ of mandamus against a court reporter in this context.           The petition is denied.                                                                             Donald R. Ross                                                                            Justice Date Submitted:      August 23, 2004 Date Decided:         August 24, 2004 partment of Public Safety Crime Laboratory in Garland for analysis. John Donahue testified that, based on DNA analysis, the blood found on Williamson's sandals was the victim's. Additionally, the State introduced testimony from Steven Johnson. Johnson testified that, several hours before the shooting, Williamson told Johnson of his plans to kill Jones. After the shooting, Johnson testified Williamson returned to Johnson's shop and admitted shooting Jones. The State also introduced testimony from Delois Williams, who testified Williamson admitted shooting Jones. In rebuttal, Williamson introduced the testimony of Lowman Lowe. Lowe testified he was working on a friend's car in the driveway of a home across the street from the crime scene. He testified he heard a sound and thought the car backfired. Then he turned and looked over to 1906 Sayle Street and saw Lewis, Harris, and Hoffman exit the house and leave the area. Lowe also testified he did not see Williamson exit the residence, which was inconsistent with Harris' and Lewis' testimony that Williamson exited first. On appeal, Williamson argues that Lowe's testimony was sufficient to negate the State's evidence placing him at the crime scene. Williamson also contends the evidence was factually insufficient because the murder weapon was never recovered. While Lowe's testimony may create some doubt about the credibility of Harris' and Lewis' testimony, this Court does not engage in a review of the weight and credibility given to a witness' testimony. Id. This Court must give deference to the fact-finder's role as the sole judge of the weight and credibility given to witness testimony. Id. Further, Lowe testified that he was in a hurry to get back to work and was not paying close attention and that he could have "missed something." As a result, Williamson has failed to present evidence that would render the verdict so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d 129. Therefore, the evidence presented at trial was factually sufficient to support the conviction. Assistance of Counsel In his third and fourth points of error, Williamson alleges he received ineffective assistance of counsel because his trial counsel "opened the door" to questions concerning his past criminal history and for failing to object during the State's closing argument. The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced his or her defense. Id.; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686. Our review of counsel's representation is highly deferential, with a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Id. at 689. 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); Harner v. State, 997 S.W.2d 695, 704 (Tex. App.-Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). As a result, the Texas Court of Criminal Appeals has often held that on direct appeal the record has not been sufficiently developed to enable an appellate court to adequately determine whether an appellant was provided ineffective assistance of counsel. Id. at 814-15. In the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). We will not conclude the challenged conduct constitutes deficient performance unless the conduct was so outrageous no competent attorney would have engaged in it. Id.; see Thompson, 9 S.W.3d at 814. Williamson contends the following exchange between his trial counsel and his previous employer resulted in ineffective assistance of counsel: Q. [Appellant]: Did you consider him [Williamson] a dependable worker? A. [Witness]: Yes, I sure do . . . . Q. [Appellant]: And you were aware that Donnie has a past criminal record, is that right? A. [Witness]: Yes. At the time I interviewed him and talked to him he explained all that to me. Q. [Appellant]: And he told you he'd been to the penitentiary in the past, is that right? A. [Witness]: Right. He sure did. Q. [Appellant]: Do you trust him? A. [Witness]: I always trusted him . . . . Despite Williamson's motion in limine to prevent a discussion of his criminal history in the presence of the jury, the above line of questioning opened the door for the following: Q. [State]: Mr. Kent, did Mr. Williamson tell you that he had been convicted of attempted murder? A. [Witness]: I don't believe he told me when I first talked to him but it was on my records that he was. Q. [State]: Mr. Kent, did Mr. Williamson tell you that he had been convicted of felony theft? A. [Witness]: Donnie explained to me that he had been in trouble for several different things, but I really can't remember exactly what they were. Q. [State]: Mr. Kent, did Mr. Williamson tell you he had been convicted of burglary of a motor vehicle? A. [Witness]: No sir. I can't really remember. Q. [State]: Did Mr. Williamson tell you he was on parole? A. [Witness]: Yes, he did. The record is void of any explanation for counsel's decision to open the door to Williamson's criminal history. Similarly, in Thompson, the court held the record had not been fully developed to a point where the court could adequately consider the issue on direct appeal. Thompson, 9 S.W.3d at 814. The court reasoned that, "an appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions." Id. While Williamson's counsel could have elicited testimony of Williamson's character without delving into his criminal history, this Court will not second-guess counsel's trial strategy. Harner, 997 S.W.2d at 704. Therefore, Williamson has failed to establish that his counsel's conduct fell below an objective standard of reasonableness. (3) Further, based on the evidence set forth above in the factual sufficiency analysis, Williamson has failed to show how counsel's actions so prejudiced his defense as to render counsel ineffective. Accordingly, Williamson's third point of error is overruled. In his fourth point of error, Williamson complains his trial counsel was ineffective because she failed to object to the State's closing argument during the punishment phase, particularly the State's reference to prior sentences and its alleged suggestion those punishments were not enough. Specifically, Williamson contends failure to object to the following argument constituted ineffective assistance of counsel: The State offered into evidence and there has been no objection [to] several pen packets. (4) These pen packets are here for your review. It will tell you how old Mr. Williamson is, 42 years old. If you read through them, it will show you when he received his first conviction, show you how many years in prison he was sentenced to, back in '79. Two years here, ten years there. They start to add up. And look where we still are. The system has not given Mr. Williamson enough time in prison. This offense, this murder, is the final one. This must be Ladies and Gentlemen. Williamson's prior convictions were properly in evidence for enhancement purposes, and the State could properly argue that those convictions be considered by the jury in assessing punishment. See Tex. Pen. Code Ann. § 12.42 (Vernon Supp. 2003). Also, we do not read the quoted argument as suggesting that the earlier sentences were too lenient and that the jury should make up for the former lenience. In sum, the quoted portion of the State's argument was not objectionable. Thus, Williamson's counsel could not have been ineffective for failing to object. We overrule the fourth point of error. For the reasons stated, we affirm the trial court's judgment. Josh R. Morriss, III Chief Justice Date Submitted: January 15, 2003 Date Decided: February 25, 2003 Publish 1. Tex. R. Evid. 803 provides certain exceptions to the hearsay rule, but character reputation regarding a location or structure is not among those exceptions. See Mo. Pac. R.R. Co. v. Cooper, 563 S.W.2d 233 (Tex. 1978) (reputation of extra-hazardous nature of railroad crossing); Rushing v. State, 151 Tex. Crim. 221, 206 S.W.2d 252 (1947) (reputation of house as one where whiskey was sold); Morgan v. City of Humble, 598 S.W.2d 364 (Tex. Civ. App.-Houston [14th Dist.] 1980, no writ) (reputation of club as house of prostitution). 2. The State elicited the same testimony from Lewis. 3. However, like in Thompson, Williamson is not precluded from bringing a petition for writ of habeas corpus to fully develop the record and determine what, if anything, motivated trial counsel to open the door to the complained-of line of questioning. Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999). 4. Williamson stipulated to the truthfulness of the penitentiary packets. See Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986).