Germaine James v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00376-CR Germaine James, Appellant v. The State of Texas, Appellee From the County Criminal Court at Law No. 11 Harris County, Texas Trial Court No. 1272048 MEMORANDUM Opinion James appeals her conviction for assault of K. J. by causing him bodily injury. See Tex. Penal Code Ann. § 22.01(a)(1) (Vernon 2003). We affirm. Factual Sufficiency. In James’s third issue, she contends that the evidence was factually insufficient. James argues that the evidence supporting the jury’s implied finding that James did not act in self-defense was “so contrary to the overwhelming weight of the evidence as to be manifestly unjust.” (Br. at 39 (citing Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375 (Tex. App.—Austin 1992, pet. ref’d, untimely filed)); see James Br. at 34.) “There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006) (quoting Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004), overruled in part on other grounds, Watson at 405; accord Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481 (2005). “We set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Prible at 731; accord Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (defense); see also Watson at 414-15. “A clearly wrong and unjust verdict occurs where the jury’s finding is ‘manifestly unjust,’ ‘shocks the conscience,’ or ‘clearly demonstrates bias.’” Prible at 731 (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997)). The reviewing court must “exercise appropriate deference in order to avoid substituting its judgment for that of the jury, particularly in matters of credibility.” Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); accord Clewis, 922 S.W.2d at 133. “A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.” Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). In general, “a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.” Tex. Penal Code Ann. § 9.31(a) (Vernon 2003). James concedes that K. J. testified that James bit and scratched K. J.’s arm and struck K. J.’s eye. James points to her own testimony and that of her mother, daughter, and nephew. James testified that K. J. threatened to hit her, and then did strike her about her body, and that thereafter James struck K. J. James’s mother testified that she saw James and K. J. embracing in a struggle, but did not see either strike the other. James’s daughter testified that K. J. punched James in the chest before James struck K. J., and that after James’s mother broke up the fight, James went into another room and got a knife. James’s nephew testified that James struck K. J. after K. J. accidentally struck James in the face, and corroborated testimony concerning the knife. When James returned with the knife, she threatened to kill K. J. K. J. had visible injuries; James did not. Viewing that evidence in a neutral light, we hold that the jury’s verdict that James committed assault, not in self-defense, was not so contrary to the overwhelming weight of the evidence as to be manifestly unjust. We overrule James’s third issue. Argument. In James’s first issue, she contends that the trial court erred in overruling James’s objection to the State’s argument. “We review the trial court’s rulings on objections to argument for abuse of discretion.” Pippillion v. State, No. 10-04-00264-CR, 2006 Tex. App. LEXIS 3347, at *2 (Tex. App.—Waco Apr. 26, 2006, no pet.) (mem. op.) (not designated for publication); see Goff v. State, 931 S.W.2d 537, 548 (Tex. Crim. App. 1996) (plurality op.); Bryant v. Lucent Techs., Inc., 175 S.W.3d 845, 849 (Tex. App.—Waco 2005, pet. denied). “A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree.” McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); accord Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). “Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel’s argument, or (4) a plea for law enforcement.” Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); accord Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973); see Howard v. State, 153 S.W.3d 382, 386 (Tex. Crim. App. 2004), cert. denied, 126 S. Ct. 1429 (2006). “To constitute reversible error, the argument must be manifestly improper or inject new, harmful facts into the case.” Jackson at 673; accord Vineyard v. State, 96 Tex. Crim. 401, 404, 257 S.W. 548, 550 (1922) (op. on orig. submission). “[I]f there is evidence in the record supporting the comment, then no error is shown.” Howard at 385. In “assessing the impact of the harm arising from” improper State’s “jury argument,” we consider: “(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).” Threadgill v. State, 146 S.W.3d 654, 666-67 (Tex. Crim. App. 2004); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). James complains of the following italicized argument by the State: And so let’s talk about those witnesses that came in here. Talk about [K. J.] You know, in a perfect world, I would pick victims that come in here and they look just like the ones on Law and Order and they sit up there and talk in a clear, loud voice and they look at you with conviction and they say, I was assaulted. This is real life. This isn’t Law and Order. [K. J.] talks fast. He talks low. He was incredibly nervous on the day he took the stand. But you know what, [K. J.] talks like that every time you talk to him. Every time I’ve met with him. Whether he’s telling you about the weather or his job— (3 R.R. at 15.) James objected: “Objection, that’s outside, argument outside of this jury trial. We would object to that, Judge. When he talked to her other times—” [sic] (Id.) The trial court overruled the objection. As to the State’s argument that K. J. talked fast, spoke softly, and was nervous during his testimony, the trial court did not err in overruling the objection. The trial court and jury saw K. J. testify. The trial court would not have abused its discretion in finding the argument a reasonable deduction from the evidence. Likewise, as to the argument that K. J. always spoke as he did when he testified, the trial court did not err. The State points to a recording of K. J.’s 9-1-1 emergency call in evidence, and argues that K. J.’s speech was the same in the recording as it was in his trial testimony. The trial court would not have abused its discretion in finding the State’s trial argument a reasonable deduction from the evidence. As to the prosecutor’s reference to meetings with K. J., assuming without deciding that the trial court erred in overruling James’s objection to matters not in evidence, the prejudicial effect of the argument would be negligible. Since the trial court overruled James’s objection, the trial court did not instruct the jury to disregard the State’s argument. For the reasons stated above, moreover, the evidence supporting James’s conviction was strong. Any error was harmless. The trial court did not err in overruling James’s objection, or any error was harmless. We overrule James’s first issue. Assistance of Counsel. In James’s second issue, she contends that her trial counsel failed to render the effective assistance of counsel. James argues that counsel did not refresh the memory of one of James’s witnesses with the witness’s prior written statement. See Tex. R. Evid. 612. “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI; see Rompilla v. Beard, 545 U.S. 374, 380 (2005); Strickland v. Washington, 466 U.S. 668 (1984). “Ineffective assistance under Strickland [v. Washington] is deficient performance by counsel resulting in prejudice, with performance being measured against an ‘objective standard of reasonableness,’ ‘under prevailing professional norms.’” Rompilla at 380 (quoting Strickland at 687, 688). “[T]o establish prejudice, a ‘defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland at 694); see Rompilla at 390. “[C]ounsel is ‘strongly presumed’ to make decisions in the exercise of professional judgment.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (quoting Strickland, 466 U.S. at 690). “That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court ‘may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.’” Id. at 5-6 (quoting Massaro v. United States, 538 U.S. 500, 505 (2003)) (internal citation omitted). “A Strickland claim must be ‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of the claim.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)); accord Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). “In the absence of anything in the record affirmatively demonstrating otherwise, we presume that . . . counsel made a reasonable and strategic decision . . . .” Salinas at 740. Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. This is true with regard to the question of deficient performance—in which counsel’s conduct is reviewed with great deference, without the distorting effects of hindsight—where counsel’s reasons for failing to do something do not appear in the record. Goodspeed at 392 (internal footnotes omitted); see Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 689; Thompson at 814. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Goodspeed at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)); accord Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). “Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.’” Goodspeed at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). An appellant establishes ineffective assistance in counsel’s failure to provide evidence to refresh a witness’s memory only if the appellant establishes that the evidence would have refreshed the witness’s memory so as to produce probative testimony that the witness would otherwise not have remembered. See Oldham v. State, 5 S.W.3d 840, 849 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); Rangel v. State, No. 04-01-00797-CR, 2003 Tex. App. LEXIS 558, *17 (Tex. App.—San Antonio Jan. 22, 2003, no pet.) (not designated for publication). James argues that the witness gave a written statement to police at the time of the assault, and that the statement would have refreshed the witness’s memory concerning the assault. No such statement is in evidence, nor is there any evidence that such a statement would have refreshed the witness’s memory. Nor does the record contain the reason for counsel’s conduct in not attempting to refresh the witness’s memory. James does not establish that trial counsel did not render the effective assistance of counsel. We overrule James’s second issue. Having overruled James’s issues, we affirm. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed January 17, 2007 Do not publish [CR25]