Mikele Sandle AKA Michael Gooden v. State

Gooden v. State IN THE TENTH COURT OF APPEALS No. 10-92-291-CR      MIKELE SANDLE AKA MICHAEL GOODEN,                                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                                               Appellee From the 85th District Court Brazos County, Texas Trial Court # 21,316-85                                                                                                     O P I N I O N                                                                                                           Mikele Sandle a/k/a Michael Gooden was convicted by a jury of aggravated robbery. See Tex. Penal Code Ann. § 29.03 (Vernon Supp. 1993). The jury found that Gooden used or exhibited a deadly weapon during the commission of the offense and assessed punishment at fifteen years in prison and a $2,500 fine. Gooden's sole point of error is that the evidence is insufficient to prove that the broken bottle alleged in the indictment is a deadly weapon.       Richard Castle, a sixteen-year-old high school student, testified that on the night of April 1, 1992, he was walking home at approximately 10 p.m. At the corner of Bryan and Martin Luther King streets, he saw two men appear from behind a shed. As Castle approached, one of the men broke a bottle against the curb. The same man grabbed Castle by the arm, stuck the broken bottle to his throat, and told him to "get out of the jacket." Castle recognized the man with the bottle as Gooden, because they had lived in the same apartment complex some years before. Castle's jacket was black with "Raiders" spelled out on the back. A third male appeared during the confrontation and told him to get out of the jacket. As Castle took the jacket off, he was cut underneath his lower lip. He did not know exactly how he got cut. Gooden then struck him on the top of his head, and one of the other assailants tried to stab him with what looked like a knife. Castle required thirteen stitches. He testified that, during the assault, he feared the men were going to hurt him. Castle could not testify as to what type of bottle was used in the assault.       Harlan Pope, a detective with the Bryan Police Department, testified as an expert. He testified that in his thirteen years of service, he had seen cases where a bottle was used as a deadly weapon. On voir dire, Pope testified that he had not seen the broken bottle used in the assault against Castle, had not talked to Castle, and could not form an opinion on the use of the bottle as a deadly weapon. Pope testified, in response to a hypothetical question, that a broken bottle placed at someone's throat would be capable of causing death and serious bodily injury. He testified that a tearing or laceration to the throat area, which includes the jugular vein and the trachea, could easily cause death or serious bodily injury.       The standard of review based on a sufficiency challenge is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 308, 318-19 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). A deadly weapon, as alleged in this case, is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." See Tex. Penal Code Ann. § 1.07(a)(11)(B) (Vernon 1974). Whether a weapon is deadly is a question for the trier of fact. Griffin v. State, 198 S.W.2d 587, 589 (Tex. Crim. App. 1946). In determining whether a weapon is deadly, all the facts of the case may be considered, including the shape and size of the weapon, its sharpness, its capacity to produce death or serious bodily injury, the manner of its use, and any words spoken by the accused. Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). A weapon may be considered deadly if it is displayed in a manner which conveys a threat, express or implied, that serious bodily injury or death will result. Jackson v. State, 668 S.W.2d 723, 725 (Tex. App.—Houston [14th Dist.] 1983, pet. ref'd). When wielded as a club, a broken bottle may be considered a deadly weapon. See Hayes v. State, 728 S.W.2d 804, 808 (Tex. Crim. App. 1987).       In Compton v. State, 759 S.W.2d 503 (Tex. App.—Dallas 1988, pet. ref'd), the court found sufficient evidence of a deadly weapon where the defendant brandished a broken beer bottle threatening to stab people while stealing beer and candy from a convenience store. The bottle in Compton was a quart-sized beer bottle with the bottom broken out, leaving a jagged edge. Id. at 504. The store clerk testified that he feared he would suffer serious bodily injury or death because of the broken bottle. Id. A police officer testified that, according to his professional experience, a broken bottle could inflict serious bodily injury or death. Id.       Gooden argues that, because the broken bottle was not introduced into evidence and because Pope's opinion was based on a hypothetical question, the evidence is insufficient for a deadly weapon finding. We disagree. Although the victim was unable to describe exactly what type of bottle was used in the assault, he was able to say that Gooden broke the bottle and held that broken bottle against his throat—an action capable of causing serious bodily injury or death, according to Pope. A rational trier of fact could have found beyond a reasonable doubt that the broken bottle was, in the manner of its use or intended use, capable of causing death or serious bodily injury. See Matson, 819 S.W.2d at 843; Tex. Penal Code Ann. § 1.07(a)(11)(B).       We overrule the point and affirm the judgment.                                                                                   BILL VANCE                                                                                  Justice Before Chief Justice Thomas,           Justice Cummings, and           Justice Vance Affirmed Opinion delivered and filed September 15, 1993 Do not publish serif"'>After waiving his rights, Garcia admitted that he voluntarily came to the police station to make a statement and that no one had forced, coerced, or made promises to him in exchange for any statements made to police. Garcia then admitted being involved in the charged offenses, but he blamed K.M., the seven-year-old child victim in this case. Garcia told Sergeant Martinez and Officer Caldwell the following: Basically that he had—that some of the information about the sexual abuse was true, but that the child was the one that wanted him to touch him [sic]. The child—I’m sorry, the child was the one that wanted him to touch her, and pretty much was blaming the child throughout the whole interview.  Garcia spoke to Sergeant Martinez and Officer Caldwell for approximately thirty minutes until he ended the interview by saying “That is all I have to say.” Garcia then left the police station on his own accord. Sergeant Martinez did not administer the polygraph test because Garcia confessed to the crimes charged. During the interview, both Sergeant Martinez and Officer Caldwell wore civilian clothes, and both denied that Garcia was in custody or formally arrested at the time he made his confession. Garcia was never handcuffed, deprived of water or restroom breaks, or deprived of his right to counsel. Sergeant Martinez explained to Garcia that he could terminate the interview at any time. On cross-examination, Sergeant Martinez acknowledged that Garcia told him that he had surgery about a month before the interview, and Garcia did tell him that he had high blood pressure and had consumed “seven to eight beers” the night before the interview. Sergeant Martinez testified that these factors could have affected the polygraph examination, but a preliminary examination to determine what effect, if any, these factors would have had on the polygraph examination was never conducted because Garcia confessed. With regard to Garcia’s purported medical issues, Officer Caldwell recalled Garcia merely stating that “he was diabetic and couldn’t get an erection.” Officer Caldwell testified that Garcia did not appear to be ill on the day he gave his confession. Furthermore, Sergeant Martinez denied that Garcia was promised anything in exchange for his confession. Garcia also testified at the hearing on his motion to suppress. His wife took him to the police station on August 8, 2008 to make a statement, and he said that Sergeant Martinez did not read him any warnings before starting the interview. Garcia told Sergeant Martinez that he was not feeling well. He testified that Sergeant Martinez read Garcia his Miranda rights only after discussing the facts of the case and that Sergeant Martinez raised his voice at him during the interview. Garcia said that he is diabetic; that he had not eaten anything on the morning of the interview; and that he had consumed beer the night before the interview. Regarding his confession, Garcia testified that he made the statements only because Sergeant Martinez told him that he could leave the police station if he confessed; he only told Sergeant Martinez and Officer Caldwell what they wanted to hear so that he could leave. At the hearing, Garcia recanted his confession and denied all of the allegations against him. He also testified that he was nervous talking to police at first, but he later admitted that he was not scared of Sergeant Martinez and Officer Caldwell. On cross-examination, Garcia admitted that Sergeant Martinez told him that he could stop the interview at any time and that he could leave. Garcia also admitted that neither Sergeant Martinez nor Officer Caldwell promised him anything; that he was voluntarily present at the police station; and that Sergeant Martinez had informed him of his Miranda rights. The evidence does not support a finding that Garcia was in custody at the time he made his confession. Garcia voluntarily came to the police station to make a statement, and he was never restrained, handcuffed, or formally arrested. Garcia was not deprived of water, restroom breaks, or the right to counsel. Garcia was informed that he was free to terminate the interview at any time, and Garcia did, in fact, terminate the interview by stating, “That is all I have to say.” He then left the police station on his own accord, further demonstrating that he was free to leave at any time. Given this evidence, we conclude that, in viewing the evidence in the light most favorable to the trial court’s ruling, Garcia was free to leave at any time during the interview; thus, he was not in police custody at the time he confessed. See Herrera, 241 S.W.3d at 526; see also Turner, 252 S.W.3d at 580. Nevertheless, Garcia argues that Sergeant Martinez promised him he could leave only if he confessed and that he did not understand his rights because of his medical issues and his illiteracy.[2] But both Sergeant Martinez and Officer Caldwell testified that Garcia appeared to understand his rights and that he did not appear to be ill when he confessed. In denying Garcia’s motion to suppress, the trial court obviously accepted their testimony and rejected Garcia’s testimony. The trial court is the sole judge of the credibility of the witnesses and the weight to be accorded to their testimony. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Campos v. State, 977 S.W.2d 458, 465 (Tex. App.—Waco 1998, no pet.). The trial court may believe or disbelieve any or all of the testimony, including that of the accused. See Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996); Campos, 977 S.W.2d at 465. We will not disturb the trial court’s ruling absent a clear abuse of discretion. Campos, 977 S.W.2d at 465. Considering all of the evidence regarding the circumstances surrounding the taking of Garcia’s statement, including the fact that Garcia was not in police custody at the time he confessed, we find that the trial court’s denial of Garcia’s motion to suppress was not an abuse of discretion. Accordingly, we overrule Garcia’s first issue. In his second issue, Garcia asserts that his trial counsel was ineffective. Garcia contends that “there are several deficiencies when considered in their totality amount to ineffective assistance of counsel.” In particular, Garcia alleges that trial counsel was ineffective because: (1) he allowed a potential juror to exit the courtroom without objecting and allowed voir dire to continue without any mention of whether the potential juror had returned; (2) he failed to challenge for cause or exercise a peremptory challenge against a juror whose college roommate had been the victim of sexual assault; (3) he failed to make an opening statement; (4) he failed to object to bolstering evidence the State allegedly presented to explain why a child might lie or cover up sexual abuse; (5) he failed to object to the admission of an expert report that allegedly contained hearsay; (6) he failed to secure the testimony of Jane Riley, the pediatric nurse who conducted the sexual assault examination of K.M.; (7) he violated the State’s motion in limine by referring to Garcia’s immigration status; and (8) he failed to cross-examine K.M. The United States Constitution, the Texas Constitution, and article 1.051 of the Code of Criminal Procedure guarantee an accused the right to reasonably effective assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2010); see also Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, Garcia must show that: (1) trial counsel’s representation fell below an objective standard of reasonableness, based on the prevailing professional norms; and (2) there is a reasonable probability that, but for trial counsel’s deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687-95, 104 S.Ct. at 2064-69; Dewberry v. State, 4 S.W.3d 735, 737 (Tex. Crim. App. 1999). Whether this test has been met is to be judged on appeal by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995). Garcia has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).            Our review of counsel’s representation is highly deferential, and we will find ineffective assistance only if Garcia overcomes the strong presumption that his counsel’s conduct fell within the range of reasonable professional assistance. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The right to “reasonably effective assistance of counsel” does not guarantee errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). Moreover, the acts and omissions that form the basis of Garcia’s claims of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d at 814. A silent record that provides no explanation for counsel’s actions usually will not overcome the strong presumption of reasonable assistance. Id. at 813-14. To warrant reversal without affording counsel an opportunity to explain his actions, “the challenged conduct must be ‘so outrageous that no competent attorney would have engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007). Here, Garcia did not raise the issue of ineffective assistance of counsel in his motions for new trial. Thus, his trial counsel was not afforded an opportunity to explain his trial strategy or address the numerous complaints Garcia makes on appeal. In situations where trial counsel has not been afforded an opportunity to explain his actions, an appellate court will usually reject the complaint in a summary fashion. See Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Hervey v. State, 131 S.W.3d 561, 564 (Tex. App.—Waco 2004, no pet.) (“[T]rial counsel should ordinarily be afforded an opportunity to explain the actions taken or not taken, as the case may be, before being condemned as unprofessional and incompetent.”). Because the record is silent as to trial counsel’s trial strategy and because Garcia has not adequately explained how trial counsel’s actions were so outrageous that no competent attorney would have engaged in them, we cannot say that the record supports a finding that trial counsel was ineffective. See Roberts, 220 S.W.3d at 533. We overrule Garcia’s second issue. Having overruled Garcia’s two issues, we affirm the judgment of the trial court.             REX D. DAVIS                                                                                   Justice  Before Chief Justice Gray,            Justice Davis, and            Justice Scoggins Affirmed Opinion delivered and filed August 3, 2011 [CRPM] [1] In Herrera, the court concluded that the construction of “custody” with respect to article 38.22 is consistent with the meaning of “custody” for purposes of Miranda. Herrera, 241 S.W.3d at 526. [2] The record indicates that Garcia was informed of his Miranda rights on at least two occasions during the interview and that he signed waivers of those rights each time.