Williams, Shannon Douglas v. State

Affirmed and Memorandum Opinion filed March 30, 2004 Affirmed and Memorandum Opinion filed March 30, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00493-CR ____________ SHANNON DOUGLAS WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court at Law no. 5 Harris County, Texas Trial Court Cause No. 1159564 M E M O R A N D U M   O P I N I O N The jury found appellant guilty of assault and the trial court assessed punishment at confinement in the Harris County Jail for one year. In two issues, appellant contends (1) the trial court abused its discretion in admitting evidence of a prior assault, and (2) he was denied effective assistance of counsel. We affirm. FACTUAL BACKGROUND On February 20, 2003, the complainant telephoned her parents from an apartment. She told her mother that appellant had been hitting her and asked her mother to call 911. She was disconnected before she could tell her mother the address of the apartment. A few minutes later complainant telephoned her parents again and told her mother the address. Two deputies were dispatched to the apartment. Appellant answered the door and the deputies were able to see the complainant standing behind him. She was visibly upset and injured. Appellant admitted to striking the complainant with his fist. ANALYSIS I. Evidence of an Extraneous Offense In his first issue, appellant contends the trial court abused its discretion in admitting testimony that appellant had previously assaulted the complainant.[1] The trial court admitted the testimony in order to remedy an impression created by appellant=s cross-examination that the complainant=s father was being evasive and was racially biased against appellant.[2] We review a trial court=s ruling on the admission of evidence for an abuse of discretion. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). 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. Webb v. State, 36 S.W.3d 164, 176 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). A trial court is given wide latitude to admit or exclude evidence of extraneous offenses. Hudson v. State, 112 S.W.3d 794, 801 (Tex. App.CHouston [14th Dist.] 2003, pet. filed). Evidence of extraneous acts is admissible to rebut defensive theories raised during cross‑examination of the State=s witnesses. Jensen v. State, 66 S.W.3d 528, 539 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Once a matter is opened up by the other party, evidence to fully explain the matter is admissible, even though the evidence might otherwise have been inadmissible. Parr v. State, 557 S.W.2d 99, 102 (Tex. Crim. App. 1977); Jensen, 66 S.W.3d at 539. By repeatedly questioning the complainant=s father as to his reason for disapproving of appellant, appellant opened the door to the testimony that the disapproval was due to the prior offense. See Jensen v. State, 66 S.W.3d at 539B40 (asking a witness whether a relationship was Arocky@ opened the door to evidence of abuse); Gilbert v. State, 874 S.W.2d 290, 296B97 (asking a police officer why he was familiar with a defendant opened the door to evidence the officer had arrested the defendant for a narcotics violation). The trial court did not abuse its discretion in allowing the complainant=s father to answer appellant=s questions. We overrule appellant=s first issue. II. Ineffective Assistance of Counsel In his second issue, appellant contends he was denied effective assistance of counsel. In particular, appellant argues his counsel was ineffective for (1) failing to object to hearsay testimony by the complainant=s father as to what she told her mother on the telephone, (2) failing to object to hearsay testimony by the complainant=s father as to what she told him, (3) failing to object to evidence of the extraneous offense, and (4) asking the complainant=s father why he did not approve of her relationship with appellant. To prove ineffective assistance of counsel, a defendant must show that counsel=s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). When reviewing a claim of ineffective assistance of counsel, we must give much deference to trial counsel and presume counsel made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A. The Telephone Conversation. First, appellant contends trial counsel was ineffective for failing to object to hearsay evidence regarding the telephone call. The complainant=s father was allowed to testify as to double hearsay, namely statements made by the complainant to her mother.[3] Neither the complainant nor her mother testified at trial. The excited utterance exception to the hearsay rule provides that A[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition@ is not excluded by the hearsay rule. Tex. R. Evid. 803(2). In order for the excited utterance exception to apply, (1) the statement must be the product of a startling occurrence, (2) the declarant must have been dominated by the emotion, excitement, fear, or pain of the occurrence, and (3) the statement must be related to the circumstances of the occurrence. Jackson v. State, 110 S.W.3d 626, 633 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d); see also McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9, 14 (Tex. Crim. App. 1994). The statements made by the complainant to her mother meet the excited utterance exception to the hearsay rule. The statements were the result of a startling occurrance, being assaulted. The officers who responded testified that the complainant was still crying and visibly upset when they arrived, indicating that she would have been dominated by the emotion of the occurrence at the time of the telephone call. Finally, all of her statements were related to the circumstances of the occurrence. The statements made by the complainant=s mother to the complainant=s father also meet the excited utterance exception to the hearsay rule. The statements were the result of a startling occurrence, receiving a telephone call from her daughter that she was being assaulted. The evidence indicates she was crying, flushed, and upset as a result of receiving the telephone call, indicating that she was dominated by the emotion of the occurrence. Finally, her statements were related to the circumstances of the occurrence. Because the statements were admissible under the excited utterance exception to the hearsay rule, trial counsel was not ineffective for failing to object to them. See Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (ATrial counsel is not ineffective for failure to make meritless objections.@). B. The Complainant=s Fear of Appellant. Second, appellant contends trial counsel was ineffective for failing to object to hearsay evidence regarding the complainant=s fear that appellant would retaliate against her or her family.[4] The state of mind exception to the hearsay rule provides that A[a] statement of the declarant=s then existing state of mind@ is not excluded by the hearsay rule. Tex. R. Evid. 803(3). The exception does not extend to Aa statement of memory or belief to prove the fact remembered or believed . . . .@ Id. A statement that the declarant was afraid of retaliation by the defendant is admissible to show fear, but not that the defendant would retaliate. See Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000); Williams v. State, 798 S.W.2d 368, 371 (Tex. App.CBeaumont 1990, no pet.). Because the statement was offered to show that the complainant was afraid, not that appellant would retaliate against her or her family, it was admissible under the state of mind exception to the hearsay rule. Trial counsel was thus not ineffective for failing to object to it. See Thacker, 999 S.W.2d at 67. C. The Extraneous Offense. Third, appellant contends trial counsel was ineffective for failing to object to the evidence of the extraneous offense as being not relevant, unfairly prejudicial, and based on hearsay. Evidence is relevant if it has Aany tendency 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. However, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. In determining whether the probative value of evidence of an extraneous offense is outweighed by its prejudicial effect, we look to (1) how compellingly the evidence serves to make a fact of consequence more or less probable, (2) the potential the evidence has to impress the jury Ain some irrational but nevertheless indelible way,@ (3) the time the State will need to develop the evidence, and (4) the force of the State=s need for the evidence. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). The evidence of the extraneous offense was relevant because it tended to make it more probable that the complainant=s father was a credible witness. Without the evidence, the jury was presented with the impression that he was being evasive and that he was racially biased against appellant. The probative value of the evidence of the extraneous offense was not outweighed by its prejudicial effect. The evidence compellingly presents a reason for the witness=s feelings toward appellant. Although the evidence may have impressed the jury in some way, it was also necessary to correct the incorrect impression left with the jurors by appellant=s questions during cross-examination. The evidence comprises only slightly more than a page of the record, so the jury was not distracted from consideration of the charged offense for any significant length of time. Finally, the evidence was the only way to prove the reason the witness disapproved of appellant. Hearsay evidence is not generally admissible despite its relevance. Tex. R. Evid. 802. A>Hearsay= is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.@ Tex. R. Evid. 801(d). The evidence of the extraneous offense was not hearsay because it was not offered to prove that appellant had assaulted the complainant in the past; rather, the evidence was admitted to prove the complainant=s father disapproved of appellant because of his belief that appellant had assaulted the complainant in the past. Because the evidence of the extraneous offense was admissible despite the possible objections as to relevance, unfair prejudice, or hearsay, trial counsel was not ineffective for failing to raise them. See Thacker, 999 S.W.2d at 67. D. Opening the Door Fourth, appellant contends trial counsel was ineffective for opening the door to evidence of the extraneous offense. Effective assistance of counsel does not mean errorless counsel, nor does it mean counsel judged effective in hindsight. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). An error in trial strategy will be deemed ineffective only if counsel=s actions lack any plausible basis. Jensen v. State, 66 S.W.3d 528, 543 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). We cannot say the trial counsel lacked any plausible basis in opening the door to evidence of the extraneous offense. The evidence was arguably inadmissible; in fact, appellant chose to argue it again on appeal. If trial counsel had prevailed on his argument, he would have succeeded in creating suspicion as to the motives of the State=s primary witness, a plausible trial strategy. See Josey v. State, 97 S.W.3d 687, 696 (Tex. App.CTexarkana 2003, no pet.) (AWe cannot say attempting to discredit one . . . of the State=s primary witnesses is improper trial strategy or otherwise falls below the level of an objectively reasonable standard of conduct.@). Although trial counsel did not succeed in his strategy, we cannot say in hindsight that he was ineffective for attempting it. See Felton, 815 S.W.2d at 735. Additionally, appellant did not file a motion for new trial that alleged ineffective assistance of counsel. Therefore, the record does not reflect trial counsel=s reasons for opening the door to evidence of the extraneous offense. The Court of Criminal Appeals has repeatedly cautioned appellate courts to Abe 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.@ Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). In such situations, ineffective assistance of counsel claims are better presented within the framework of a post‑conviction writ of habeas corpus under article 11.07 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 11.07; Bone v. State, 77 S.W.3d 828, 833B34 (Tex. Crim. App. 2002); Ex parte Torres, 943 S.W.2d 469, 475B76 (Tex. Crim. App. 1997). We overrule appellant=s second issue. We affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed March 30, 2004. Panel consists of Chief Justice Hedges and Justices Fowler and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The trial court admitted the following testimony: Q. Can you tell us about a prior occassion when your daughter went to the hospital. A. Yes, ma=am. There was another occassion when an ambulance had to be called and police had to be called. And my daughter basically looked almost similar to the same she did this last time. Two blackened eyes, her face all swollen up and her lip. And at the time, it was a denial thing that he had done that. But I felt that it had happened, that he had hit her. Q. Mr. Morgan, based on your conversations with your daughter and the paramedics at that time, did you form a belief about who had done this to her? A. Yes, ma=am. Q. Okay. Who did you believe had done it? A. I believe that [appellant] had hit my daughter at that time. Q. Was that an influence in your making a decision that you didn=t want him to date her? A. Yes, ma=am. That was an influence. It sure was. [2] The impression was created by the following testimony on cross-examination: Q. You said, I didn=t approve of her hanging out with [appellant]. If you don=t know him, why would you make that remark? A. I guess just a parent=s intuition. I didn=t have a good feeling about him. I heard the man=s name several times without meeting him. You know, if I would have met a person the same time I hear the name, I could have formed an opinion but I didn=t not know. I didn=t approve of it. Q. Is it because he is a black man? A. No, sir. . . . Q. [Y]ou just told me that you didn=t approve of your daughter dating [appellant]. So, why would you allow his son over? A. I did not. I asked my daughter to please go ahead and leave with him. I didn=t care for him to be there at the house because for lots of reasons. My wife didn=t approve of it, and I didn=t care for it. I didn=t want her to bring him around my other children. I didn=t approve of it. I did ask her to leave. Q. Why didn=t you approve of it? You said he=s never threatened you or your wife or anyCyour daughter, but you said you didn=t approve of him being around. Why? A. Because I justCit wasn=t my wish. It was my house and it wasn=t my wish. Q. You got to have a reason. A. I have wishes and reasons for many people ifCmy daughter=s got other friends if they come to my house and I don=t approve of them or feel comfortable with them, I=ve asked her not to bring them there before. Q. You don=t want to share the reasons why with us? A. Just the fact that I didn=t care to have him there. [3] The testimony was the following: A. The first phone call come in and she only talked to my daughter briefly. My daughter wanted my wife to call 911 for help. Then she kind of backed off and decided at first not to; and after a little bit, we got disconnected from her. . . . . . . Q. Let=s go back and talk to your wife when she got off the phone. Did she tell you what had been said on the phone? A. Yes, ma=am. Q. All right. Did she tell you anything about [the complainant=s] demeanor about how she was on the phone? A. She just said that [the complainant] was upset and crying and said that [appellant] had been hitting her and at that time that was about all we got out of her on the first time. [4] The testimony was the following: Q. Mr. Morgan, has your daughter ever let you know whether or not she was afraid of him? A. Yes, ma=am. Q. And what has [the complainant] told you? A. She=s afraid of the fact that [appellant] could retaliate against her or the rest of our family. That was her exact words.