Jason Elijah Campbell v. State

IN THE TENTH COURT OF APPEALS No. 10-07-00168-CR Jason Elijah Campbell, Appellant v. The State of Texas, Appellee From the 85th District Court Brazos County, Texas Trial Court No. 06-05519-CRF-85 MEMORANDUM Opinion A jury convicted Jason Elijah Campbell of aggravated assault with a deadly weapon. The court assessed his punishment at twenty years’ imprisonment and a $5,000 fine. Campbell contends in four issues that: (1) he received ineffective assistance of counsel; (2) the court abused its discretion by admitting extraneous-offense evidence; (3) the evidence is legally insufficient to uphold the conviction; and (4) the court abused its discretion by failing to give a contemporaneous limiting instruction when extraneous-offense evidence was admitted. We will affirm. Legal Sufficiency Campbell contends in his third issue that the evidence is legally insufficient to uphold his conviction.[1] Campbell does not challenge particular elements of the offense, complaining instead that the offense did not happen. In reviewing a claim of legal insufficiency, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex. Crim. App. 2003); Witt v. State, 237 S.W.3d 394, 396-97 (Tex. App.—Waco 2007, pet. ref’d). Campbell was indicted for threatening the complainant Stasha Turner “with imminent bodily injury by holding a knife and threatening to kill [her].” Thus, he was charged with violation of sections 22.01(a)(2) and 22.02(a)(2) of the Penal Code. Section 22.01(a)(2) provides in pertinent part that a person commits an assault if he “intentionally or knowingly threatens another with imminent bodily injury.” Tex. Pen. Code Ann. § 22.01(a)(2) (Vernon Supp. 2007). Section 22.02(a)(2) elevates a simple assault to an aggravated offense when the person “uses or exhibits a deadly weapon during the commission of the assault.” Id. § 22.02(a)(2) (Vernon Supp. 2007). Turner testified that Campbell and she had been married but were separated on the date in question. Apparently they were both seeing other people at the time. After they had an altercation at the home of Turner’s aunt, Campbell drove her to her own home where he forced his way into her house. He looked through her caller ID numbers and started “acting ugly” and “hollering” at her wanting to know whose numbers they were. When she refused to tell him, he became angry and grabbed a knife from the kitchen. According to Turner, Campbell continued “fussing and arguing and stuff.” He told her he wanted to know who she was seeing “and he had said the part about what I was doing some mess [sic] kill the family.”[2] As he was “poking [her] stomach” with the knife, he told her to “shut up” and “sit down.” Tucker testified more than once that she was afraid and thought he was going to kill her. Viewed in the light most favorable to the verdict, the evidence is that Campbell stuck a knife in Tucker’s stomach in the midst of a heated argument and told her that her conduct was the sort that caused some men to kill their families. This constitutes legally sufficient evidence to support the verdict. See Adams v. State, 222 S.W.3d 37, 51 (Tex. App.—Austin 2005, pet. ref’d); Tidwell v. State, 187 S.W.3d 771, 775 (Tex. App.—Texarkana 2006, pet. struck); Robertson v. State, 175 S.W.3d 359, 363 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). Accordingly, we overrule Campbell’s third issue. Ineffective Assistance Campbell contends in his first issue that he received ineffective assistance of counsel and cites seven acts and omissions to support this contention.[3] We begin with a “strong presumption” that counsel provided reasonably professional assistance, and Smith bears the burden of overcoming this presumption. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Generally, the appellate record is insufficient to satisfy this burden. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Curry v. State, 222 S.W.3d 745, 754 (Tex. App.—Waco 2007, pet. ref’d). If nothing in the record reveals the reason for the act or omission which is the basis of an ineffective assistance complaint, we may not speculate on that reason. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Curry, 222 S.W.3d at 754; Hajjar v. State, 176 S.W.3d 554, 567 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). Here, Campbell argued in his motion for new trial that he received ineffective assistance of counsel because counsel failed to call a material witness. Campbell did not present any other allegations of ineffective assistance in the motion, which the court denied without an evidentiary hearing. Thus, we have no record providing his trial counsel’s rationale for the acts and omissions of which he complains on appeal. Without a record elucidating the reasons for trial counsel’s acts and omissions, Campbell has failed to overcome the “strong presumption” that counsel provided reasonably professional assistance. See Andrews, 159 S.W.3d at 101; Jones v. State, 170 S.W.3d 772, 776-77 (Tex. App.—Waco 2005, pet. ref’d); Hajjar, 176 S.W.3d at 567. Accordingly, we overrule Campbell’s first issue. Extraneous-Offense Evidence Campbell contends in his second issue that the court abused its discretion by admitting extraneous-offense evidence. However, Campbell did not raise this complaint in the trial court. Therefore, he has not preserved this issue for appellate review. See Tex. R. App. P. 33.1(a)(1); Berry v. State, 233 S.W.3d 847, 857 (Tex. Crim. App. 2007) (extraneous-offense complaint not preserved because objection untimely). Campbell’s second issue is overruled. Limiting Instruction Campbell contends in his third issue that the court abused its discretion by failing to give a contemporaneous limiting instruction when extraneous-offense evidence was admitted. The State responds that no error is shown because Campbell requested and received such an instruction. Extraneous-offense evidence was admitted without objection during the State’s case-in-chief. Campbell did not request a contemporaneous limiting instruction when this evidence was offered. At the beginning of Campbell’s direct testimony, his attorney questioned him about his prior criminal history and asked the court to give an oral limiting instruction. The court instructed the jury that it could not consider evidence of Campbell’s prior criminal history as evidence of guilt and could only consider this evidence in passing on the weight to be given his testimony. The court included two limiting instructions in the guilt-innocence charge: one directed toward evidence of uncharged extraneous conduct and the other directed toward Campbell’s prior criminal history. The court read the charge (and these instructions) to the jury as required by law.[4] See Tex. Code Crim. Proc. Ann. art. 36.16 (Vernon 2006). Rule of Evidence 105(a) provides that, when evidence which is admissible for only a limited purpose is admitted, “the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.” Tex. R. Evid. 105(a). Because Campbell did not request a limiting instruction with regard to the extraneous-offense evidence admitted during the State’ case-in-chief, he has failed to preserve his complaint concerning the trial court’s failure to provide a contemporaneous limiting instruction. See id.; Garcia v. State, 887 S.W.2d 862, 878-79 (Tex. Crim. App. 1994); Arana v. State, 1 S.W.3d 824, 829 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Accordingly, we overrule Campbell’s fourth issue. We affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed July 2, 2008 Do not publish [CR25] [1] The specific language of Campbell’s third “ground of error” is, “The trial court erred when it failed to grant an instructed verdict of not guilty at the close of the State’s evidence, as the evidence was factually insufficient to sustain a verdict of guilty.” However, the substance of the argument presented in connection with this complaint is a legal sufficiency challenge. Therefore, we treat this as a legal sufficiency complaint. [2] It appears that the court reporter did not accurately transcribe Turner’s testimony in this regard. The reporter’s record reflects that, during the punishment phase, Turner similarly testified that, while Campbell was holding the knife to her stomach, he told her that she and women like her were “the reason men kill their whole family.” [3] Specifically, Campbell complains that trial counsel: (1) failed to make an opening statement in either phase of the trial; (2) failed to object to extraneous-offense evidence; (3) failed to request a contemporaneous limiting instruction when extraneous-offense evidence was admitted; (4) failed to cross-examine the State’s witnesses about Campbell’s version of the relevant events; (5) opened the door to the admission of extraneous-offense evidence during the punishment phase; (6) called a punishment witness who testified that Campbell was selling drugs out of his home; and (7) failed to object to “an inflammatory highly prejudicial improper jury argument from [the] State.” [4] The State refers to the court’s reading of the charge as a second instance when the court provided an oral limiting instruction