Sims, Gary Eugene v. State

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS GARY EUGENE SIMS,                                       ) ) No. 08-01-00121-CR Appellants, ) ) Appeal from the v. ) ) 282nd District Court THE STATE OF TEXAS,                                     ) ) of Dallas County, Texas Appellee. ) ) (TC# F-0045450-PS) ) O P I N I O N Appellant, Gary Eugene Sims, appeals from the jury=s verdict convicting him of aggravated sexual assault and the same jury=s imposition of a life sentence for the offense. Appellant=s court-appointed counsel filed a brief meeting the requirements of Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396, reh. denied, 388 U.S. 924, 18 L.Ed.2d 1377, 87 S.Ct. 2094 (1967) by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974). Appellant filed a pro se brief presenting seven issues, which we reformulate for clarity: (1) The trial court erred in permitting the State to present perjured testimony; (2) the conviction should be reversed for the State=s improper questions and sidebar remarks; (3) the State failed to disclose exculpatory evidence; (4) the trial court erred in permitting evidence of extraneous offenses during the punishment phase of the trial; (5) evidence is insufficient to establish Appellant used a deadly weapon; (6) appellant was rendered ineffective assistance of counsel; and (7) the trial court erred in denying Appellant a speedy trial. We will affirm the conviction and punishment. SUMMARY OF THE EVIDENCE June Smith[1] woke very early on Sunday, February 6, 2000, after falling asleep from watching television with her daughter. She began cleaning and took garbage outside to the bin at her apartment=s parking lot. She noticed a car parked in the near-empty lot, and as she returned home, the man in the driver=s seat pointed a gun at her and ordered her to get into the car. Ms. Smith identified Appellant as the man in the vehicle. Afraid, she obeyed Appellant, who drove her to a house, where he locked them into his bedroom with a key. The door had no knob on it, only the lock. He told her that they were getting ready to party, and when she refused to take her clothes off or obey him, Appellant beat her with his fists and a fireplace poker, fired a gun toward her into the mattress, and threw a lamp at her, breaking her arm in the process. After he shot at her, Ms. Smith began to cooperate, taking her clothes off, drinking some champagne, and smoking from a glass or metal pipe he handed to her. She noticed a flash to the side as he took photos of her drinking and smoking. Afterwards, he raped her in the bathroom over a sink lined with pillows. After he gave her some food, Appellant fell asleep on the bed, and Ms. Smith took the opportunity to tear the address portion from some mail and to call 911. Before she could complete the call, Appellant woke up and hung up the phone. Ms. Smith stated that he was agitated and began pacing, saying AWhat -- what am I gonna do now? I can=t lose everything behind this. I=ve never done this before. You=ve caused me to do something I=ve never done before. What am I gonna do? You know, you shouldn=t have been trying to steal from me; you shouldn=t have been trying to do this.@ Ms. Smith denied stealing from Appellant. Afterwards, Appellant drove Ms. Smith back to her apartment complex, and she called the police from a neighbor=s apartment. Appellant testified and did not deny that he had taken Ms. Smith to his home. Appellant said he had met Ms. Smith about a year before, and they had spent some time together and had sexual intercourse in a Amoney type@ arrangement. On February 6, 2000, Appellant went to Ms. Smith=s apartment. When she answered the door, he told her AIf you=ve got a little time, I=ve got a little money.@ She came out and got into his car, and he drove her to his house where they drank, ate some food, and had consensual sexual intercourse. He said he took pictures of Ms. Smith, because he had been robbed before and he liked to take pictures. He denied making her smoke. Afterwards, he fell asleep but the security alarm to his bedroom roused him. When he got up, he found Ms. Smith trying to leave the house with his wallet, a watch, and the gun. In trying to get his property back, the gun fired, and Ms. Smith suffered injuries. Because she plead that she would be violating her probation, he did not call the police and merely returned her to her home. The State indicted Appellant of intentionally and knowingly causing the penetration of June Smith=s female sexual organ without her consent with his sexual organ while using and exhibiting a deadly weapon, a firearm. In addition to Ms. Smith=s testimony, the State presented to the jury during the guilt-innocence phase of the trial: the audio tapes from Ms. Smith=s calls to 911; a torn piece of paper showing an address; a gun; and photographs of Appellant=s bedroom and the attached bathroom--including the door without a knob; a bullet hole in the mattress; an electric bill with the address portion torn off; a broken lamp; a fireplace poker; and Ms. Smith during the medical examination. The jury found Appellant guilty of aggravated sexual assault. During the punishment phase of the trial, the State introduced evidence that Appellant had committed three extraneous offenses or bad acts when he sexually assaulted two women in 1995 and also assaulted an inmate inside the jail in June 2000. The jury then returned the verdict of life confinement. DISCUSSION Appellant objects in his Issues One, Two, and Four to the admission of various evidence, which are subject to the abuse of discretion standard, and we discuss those issues first. We note that the defense made no objections to any of the evidence that Appellant complains of during the trial; hence, any error was waived and appellate issues not preserved. Tex.R.App.P. 33.1. In the interest of justice, however, we will address the merits of Appellant=s arguments. Abuse of Discretion Standard We review the trial court=s decision to admit or exclude evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101‑02 (Tex.Crim.App. 1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379‑80 (Tex.Crim.App. 1990). We will not reverse a trial court=s ruling, which was within the Azone of reasonable disagreement.@ Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391. A trial court=s ruling will be sustained on appeal if it is correct on any theory of law applicable to the case, even if the trial court gives the wrong reason for the decision, and this is especially true with regard to admission of evidence. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). Issue One: Admission of Perjury Appellant first claims that June Smith, the alleged victim, committed perjury, the State knowingly used the perjured testimony, and the trial court erred in allowing the perjured testimony. A prosecutor=s knowing use of perjured testimony violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Ex Parte Castellano, 863 S.W.2d 476, 481 (Tex.Crim.App. 1993). Perjury occurs when a person makes a false statement under oath with intent to deceive and with the knowledge of the statement=s meaning. See Tex.Pen.Code Ann. ' 37.02(a) (Vernon 1994). Ms. Smith testified as follows, and Appellant contends the italicized portions of the testimony were perjured: Ms. Smith: -- and he [Appellant] was pacing and scratching his head with the gun saying, >What -- what am I gonna do now? I can=t lose everything behind this. I=ve never done this before. You=ve caused me to do something I=ve never done before. What am I gonna do? You know, you shouldn=t have been trying to steal from me; you shouldn=t have been trying to do this.= The State: You didn=t know if any of that was true or not? [Court=s admonition omitted.] The State: You didn=t know if any of that was true or not, did you, at that point. Ms. Smith: None of that was true. . . . The State: So, what did he do at that point? Ms. Smith: At that point, he was still walking frantic. So, I told him -- I started telling him, >Please, whatever you do,= begging him, >don=t call the police, because I=m on parole, and my probation officer= -- I told him about a blue warrant; that I=ve got a blue warrant out on me. The State: Now, is that true? Ms. Smith: No. . . . The State: But you were telling him that for what reason? Ms. Smith: To think maybe so he wouldn=t know that I was talking to the police on the phone, and he was frantic because I was on the phone. . . . Defense: Well, you=ve indicated -- Ms. Smith: But he -- Defense: -- that you told -- that you told Mr. Sims here, >Don=t call the police. I=ve got a blue warrant out on me.= Ms. Smith: Correct. [Emphasis added]. Appellant offers no evidence other than his testimony to prove Ms. Smith=s testimony was false and made with the intent to deceive. However, a conflict in the witnesses= testimony does not render the testimony a perjury; rather, it creates an issue of credibility of the witnesses, which the jury has the exclusive power to resolve. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). Since there is no evidence that Ms. Smith=s testimony was false and made with the intent to deceive, the State did not err in eliciting Ms. Smith=s testimony, and the trial court did not abuse discretion in admitting the testimony into evidence. We overrule Appellant=s first issue. Issue Two: Improper Sidebar Remarks and Arguments Appellant contends in his second issue that the prosecutor improperly questioned him and made side-bar remarks. Texas Rules of Evidence 611 governs the interrogation and presentation of witnesses. See Tex.R.Evid. 611. Rule 611(a) grants the trial court the discretion to control the process of interrogation and presentation to ensure the process: (1) is effective for the ascertainment of the truth; (2) avoids needless consumption of time; and (3) protects witnesses from harassment or undue embarrassment. Tex.R.Evid. 611(a). Cross‑examination may extend to any matter relevant to the issues, including the witnesses= credibility. Tex.R.Evid. 611(b). Leading questions are permitted only for the examination of a hostile witness, an adverse party, or a witness identified with an adverse party, except when it is necessary to develop the testimony during direct examination. Tex.R.Evid. 611(c). Appellant first points to the prosecutor asking Ms. Smith on direct examination, ADid you think . . . he [Appellant] was going -- did you think he was going to kill you?@ Although this was a leading question put to a non-hostile witness during direct examination, it was properly asked to develop testimony from Ms. Smith and guide her. This was permissive under Rule 611(c), and there was no error in the asking or allowing of the question by the prosecutor and the trial court. Next, the State asked Appellant during cross-examination about handing his camera over to the police: AAll right. That didn=t have any -- anything to do with maybe you had thought this out beforehand?@ The question was proper, because it was asked during cross-examination and was relevant since it probed Appellant=s motive and intent. Finally, Appellant complains of the State remarking, AI assume your answer, from your ramblings, were that no, that was not your intent; that=s not why you did these things.@ The prosecutor=s comment was made after a series of questions asking Appellant whether he had pre-planned the alleged sexual assault and the subsequent events. Immediately after the prosecutor made the comment, Appellant responded, AI -- didn=t -- I didn=t pre-plan no -- none of these events, sir.@ It appears the prosecutor made a follow-up question in the form of a statement, which Appellant affirmed. As such, it was proper cross-examination under Rule 611(b). Moreover, even if we consider that the prosecutor made a side-bar comment, we could not reverse the conviction, unless the prosecutor exposed the jury to injurious and prejudicial matters reasonably calculated to prevent a fair trial. See Mata v. State, 867 S.W.2d 798, 802 (Tex.App.--El Paso 1993, no pet.). A remark summarizing Appellant=s testimony and which Appellant agreed to immediately afterwards is not information that would render the trial completely unfair to Appellant. The question was proper. We overrule Appellant=s second issue. Issue Four: Admission of Extraneous Offenses during Punishment Phase In his fourth issue, Appellant argues the trial court abused its discretion by allowing into evidence during the punishment phase of trial photographs showing a woman drinking and the testimony of two women who alleged Appellant sexually assaulted them. Article 37.07 of the Code of Criminal Procedure permits the State to introduce during the punishment phase of trial any matter relevant to the sentencing, including evidence of an extraneous crime or bad conduct shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which the defendant could be held criminally responsible. Tex.Code Crim.Proc.Ann. art. 37.07, ' 3(a)(1)(Vernon Supp. 2002). Before considering the evidence, the jury must be satisfied beyond a reasonable doubt that the extraneous bad acts or offenses are attributable to the defendant. Huizar v. State, 12 S.W.3d 479, 481 (Tex.Crim.App. 2000), quoting Fields v. State, 1 S.W.3d 687 (Tex.Crim.App. 1999). In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). At the pretrial hearing, the State indicated its intention to introduce the evidence of three extraneous sexual assaults from 1995 through 1996. At trial, Valerie Fullmithter and Tremelia Johnson testified that Appellant sexually assaulted them in two separate incidents in 1995. Ms. Fullmithter identified Appellant in court and said she met Appellant at a friend=s house in June of 1995. She thought they were going out to eat or drink, but Appellant drove to his house and once they were inside, he threatened her with a knife and ordered her to take off her clothes. He then took her to his bedroom and raped her in the attached bathroom over the sink. She escaped by jumping from his car as he drove her back and made a report to the police. Ms. Fullmithter did not pursue the complaint, because she was on probation. Ms. Johnson also identified Appellant as the man that she had met while working at a department store in October 1995. A few days later, Appellant offered her a ride home and something to eat at his house. At the house, they went through the kitchen then to the bedroom, which had no door knobs. Appellant wanted Ms. Johnson to take her clothes off and when she refused, he grew angry and aggressive and began cursing at her. Afraid, she obeyed him and he took her into the bathroom and raped her on top of the sink. She escaped through the front door when Appellant fell asleep and reported the incident to the police but was unable to make contact with the detective later. Finally, the State introduced into evidence State=s Exhibits 33, 34, 35, and 36, or four photographs of an apparently naked woman with a rose tattoo on a bed. Appellant admitted taking the photographs of the unknown woman. Ms. Fullmithter=s and Ms. Johnson=s testimony was sufficient evidence to support beyond a reasonable doubt that Appellant committed prior sexual assaults. Both witnesses were able to identify Appellant in court as the person who had taken them to his home and thereafter threatened violence and raped them. Appellant also admitted taking the pictures of the naked woman in the bed. The testimony and the photographs were also relevant and therefore admissible under Article 37.07. Tex.Code Crim.Proc.Ann. art. 37.07, ' 3(a)(1). Evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex.R.Evid. 401. That Appellant had sexually assaulted at least two women in 1995 under very similar circumstances as the assault upon Ms. Smith is relevant, since Ms. Smith=s description of the assault was nearly identical to Ms. Fullmithter=s and Ms. Johnson=s account. The photographs showed a woman drinking and sitting on the bed, similar to the way Ms. Smith was ordered to pose when Appellant took her photographs in her testimony. We overrule Appellant= fourth issue. Issue Three: Failure to Disclose Exculpatory Evidence Appellant argues that the State violated his due process rights in not disclosing the existence of photographs he took of Ms. Smith. The State has the affirmative duty to turn over existing material, favorable evidence to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999). Texas has adopted a three-part test to determine whether the State=s non-disclosure of evidence violated a defendant=s right to due process: (1) the prosecutor failed to disclose evidence; (2) the evidence was favorable to the accused; and (3) the evidence is material. Little, 991 S.W.2d at 866. If the State turned in the evidence in time for the defendant to use it in his defense, the defendant=s Brady claim fails. Id. At the pretrial arraignment hearing, the prosecutor stated that he had turned over all evidence that the defense had requested and that the defense counsel had viewed the photographs: The State: I=ve given him [defense counsel] several different items that I have in my possession, tape recordings of two 9-1-1 calls by the victim. Calls by the defendant. He has the rape exam. He has the forensics that I have. The physician=s exam. Evidence report from the police department. He -- he=s looked at the pictures and indicated that -- I=m going to have all the physical evidence down here Monday, and he=ll have a chance to look at it. I believe everything he=s asked for I have provided for him. . . . I believe that -- I=ve tendered everything I can at this point. The defense did not contradict the prosecutor=s assertions at the hearing or at any time afterwards, nor did Appellant seek to present the photographs of Ms. Smith into evidence, although he admitted taking her photos. This is not a case of the State hiding the evidence; not only did the defense apparently review all photographs in the State=s possession, Appellant knew of the photographs of Ms. Smith. The State did not fail to disclose exculpatory evidence. We overrule Appellant=s third issue. Issue Five: Insufficiency of the Evidence Appellant next contends in his fifth issue that the evidence was insufficient to show he used a deadly weapon. When examining the legal sufficiency of the evidence, we look at the evidence in a light most favorable to the verdict in order to determine whether any rational trier of fact could find the essential elements of the crime as alleged beyond a reasonable doubt. Dewberry, 4 S.W.3d at 740. Our duty is not to reexamine the evidence and impose our own judgment as to whether the evidence establishes guilt beyond a reasonable doubt, but only to determine if the findings by the trier of fact are rational. Lyon v. State, 885 S.W.2d 506, 516-17 (Tex.App.--El Paso 1994, pet. ref=d). Any inconsistencies in the evidence are resolved in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). In a review of the factual sufficiency of the evidence, all evidence are examined without the prism of Ain the light most favorable to the prosecution,@ and we will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). We defer to the fact finder=s determinations in reviewing the weight given to the evidence. Clewis, 922 S.W.2d at 133. An appellate court cannot substitute its judgment for that of the fact finder=s and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility of the witnesses= testimony. Santellan, 939 S.W.2d at 164. A firearm is a deadly weapon. Tex.Pen.Code Ann. ' 1.07(17)(A)(Vernon 1994). Ms. Smith testified that Appellant pointed a gun at her to get her into his car. Later, he pointed the gun at her in the bedroom as he ordered her to strip and fired it close enough that she felt the bullet go by her face when she refused. Ms. Smith said that she obeyed him after he fired the gun, because she was afraid for her life. The police found in Appellant=s room a gun, a bullet hole in the mattress and the wall, and the bullet. The evidence is legally sufficient to find that Appellant used a deadly weapon. In challenging the sufficiency of the evidence, Appellant argues that the police did not find a powder burn on Ms. Smith=s face and that the gun was fired accidentally while he and Ms. Smith struggled for his property. However, the conflicting testimony was exclusively within the jury=s province to resolve, and this Court lacks the power to review that finding. Since the jury found that a deadly weapon was used and thus found Ms. Smith=s testimony more credible, the conviction cannot be challenged on this ground. We overrule Appellant= fifth issue. Issue Six: Ineffective Assistance of Counsel Appellant complains that he had ineffective assistance of counsel when his counsel failed to object to portions of Ms. Smith=s testimony, which Appellant argued was perjured in his first issue. The Texas Court of Criminal Appeals adopted the two-prong test for reviewing a claim for ineffective assistance of counsel as enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A defendant claiming ineffective assistance of counsel must show by preponderance of evidence that (1) the counsel acted deficiently and (2) the counsel=s deficient performance prejudiced the defense. Stafford v. State, 813 S.W.2d 503, 505 (Tex.Crim.App. 1991). There is a strong presumption that a counsel=s action was within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The record must definitely and affirmatively support any allegations of ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). A reviewing court defers to the judgment of the trial court and looks at the totality of the representation, being hesitant to declare a single error as per se ineffective assistance. Thompson, 9 S.W.3d at 813. However, a single egregious act or omission may constitute ineffective assistance. Id. We do not reach the question of whether trial counsel=s actions were objectively reasonable, because the appellate record in this case does not establish the reasons behind trial counsel=s actions. See Thompson, 9 S.W.3d at 813-14. However, we note that a single instance of error usually does not constitute ineffective assistance, and the failure to object to testimony which we have already deemed not perjured is not so egregious as to constitute ineffective assistance. See Thompson, 9 S.W.3d at 813. Appellant has not pointed out how the failure to object to admissible testimony could be an unreasonable decision and consequently has failed to rebut the strong presumption that counsel=s action during the trial fell within a wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814. We overrule Appellant=s sixth issue. Issue Seven: Right to Speedy Trial In his seventh issue, Appellant argues he was denied his right to a speedy trial. While Texas has a separate constitutional right to a speedy trial, we use the federal analysis as outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992). The essence of the right to a speedy trial is Aorderly expedition and not mere speed.@ State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999), citing U.S. v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459‑60, 30 L.Ed.2d 468 (1971). The reviewing court considers four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his speedy trial rights; and (4) any resulting prejudice to the defendant. Munoz, 991 S.W.2d at 821. The defendant has the burden of first showing that sufficient delay has occurred to require application of the Barker v. Wingo balancing test. Lott v. State, 951 S.W.2d 489, 493 (Tex.App.--El Paso 1997, pet. ref=d). The length of the delay is measured from the time the defendant is arrested or formally accused. Harris, 827 S.W.2d at 956. Before reaching the other three Barker v. Wingo factors, a court must determine that the length of delay was unreasonable and prejudicial to the defendant. Lott, 951 S.W.2d at 493. Appellant was arrested on February 6, 2000 and indicted on February 11, 2000. Initially, the trial was set for June 12, 2000, but the trial was apparently reset for October 30, 2000 and January 16, 2001, and again continued to February 26, 2001 after Appellant=s counsel filed a motion to withdraw on June 15, 2000 and new counsel was appointed on June 21, 2000. Appellant=s case was disposed of within a year and twenty days from his arrest, which was not an unreasonable length of time under the circumstances and insufficient to trigger the analysis of the remaining Barker v. Wingo factors. See Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). We hold that Appellant=s trial was held within a reasonable amount of time and overrule Appellant= seventh issue. The judgment of the trial court is affirmed. July 11, 2002 DAVID WELLINGTON CHEW, Justice Before Panel No. 1 Larsen, McClure, and Chew, JJ. (Do Not Publish) [1] AJune Smith@ is a pseudonym for the complainant in this case.