Freeman, Anthony Bernard v. State

Affirmed and Memorandum Opinion filed August 31, 2006 Affirmed and Memorandum Opinion filed August 31, 2006. In The Fourteenth Court of Appeals _______________ NO. 14-05-00507-CR _______________ ANTHONY BERNARD FREEMAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 1006120 M E M O R A N D U M   O P I N I O N Appellant, Anthony Bernard Freeman, appeals his conviction for deadly conduct. In two issues, appellant contends that (1) the trial court erred by refusing to admit evidence offered to impeach one of the State=s witnesses, and (2) appellant was denied effective assistance of counsel. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background On November 3, 2004, appellant fired a gun outside an apartment complex. Two bullets pierced the wall of an apartment. One bullet struck a sofa and coffee table; the other bullet was lodged in a bedroom wall. Appellant admitted firing the gun but claimed he was acting in self-defense. Following a bench trial, appellant was convicted of deadly conduct and sentenced to four years= imprisonment. II. Impeachment Evidence In his first issue, appellant contends the trial court erred by excluding evidence pertaining to alleged bias and prejudice of a State witness in violation of appellant=s Sixth Amendment right to confront and cross-examine witnesses. See U.S. Const. amend. VI. On cross-examination, appellant asked a series of questions centered around a friend of the witness whose apartment was located next to the apartment caught in the gun fire. Appellant asked the witness whether the incident upset him because of his friend. The witness replied that he thought the question was misleading. The witness further explained: AWhat upset me was the fact that this garbage is going down and there is kids around . . .@ After this explanation, appellant paraphrased the witness, stating A[y]ou are upset because what you describe is garbage out there . . . you are pretty mad about that, aren=t you?@ The State objected that the question was asked and answered. The trial court sustained the objection. Appellant later asked the witness the following questions: (1) AWhy are you so testy?@; (2) AHave you got some hostility?@; and (3) ADo you haveCwhy are you so mad?@ After each question, the State objected, and the trial court instructed appellant to rephrase the question. Appellant then made an offer of proof in which he stated that if the trial court allowed the witness to answer the questions, the witness would have testified as follows: AI don=t like shootings out there in that neighborhood and I am mad at this defendant because he=s the only one on trial and I wouldCand I definitely have a bias towards this man.@[1] Although Agreat latitude should be allowed in cross-examining witnesses to reveal possible bias, prejudice, or self-interested motives to falsify testimony,@ the proponent bears the burden of showing the relevance of particular evidence to the question of bias. Chambers v. State, 866 S.W.2d 9, 26B27 (Tex. Crim. App. 1993). Further, parameters of cross-examination remain within the sound discretion of the trial court, which must balance probative value against prejudicial risks including undue prejudice, embarrassment, harassment, confusion of the issues, and undue delay. Id.; see Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (concluding right to confront witnesses does not prevent the trial court from exercising its discretion to protect the witness=s safety and to prevent harassment, prejudice, confusion of the issues, and repetitive or marginally relevant interrogation). Here, appellant questioned the State=s witness without restriction regarding his relationship with the friend residing in the apartment complex. Appellant was also given great latitude to question the witness regarding his anger and whether he knew appellant or any of the people involved in the shooting. The witness testified at least three times on cross-examination that he had never before met appellant or anyone else involved in the shooting. The witness also explained at great length that he was upset about the Agarbage,@ including drugs and gunfire, that had been occurring in a residential area. Accordingly, we conclude the trial court acted within its discretion to prevent harassment and undue delay by sustaining the State=s objections to questions the witness had already answered. See Recer v. State, 821 S.W.2d 715, 717B18 (Tex. App.CHouston [14th Dist.] 1991, no pet.) (finding no abuse of discretion when appellant was afforded an opportunity for thorough and effective cross-examination regarding the source of the possible bias). Appellant=s first issue is overruled. III. Ineffective Assistance of Counsel In his second issue, appellant contends he received ineffective assistance of counsel. To prevail on an ineffective-assistance-of-counsel claim, an appellant must prove: (1) the attorney=s performance was deficient; i.e., that the performance fell below an objective standard of reasonableness under the prevailing professional norms; and (2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). Appellant makes three arguments to support his claim: (1) his counsel failed to call a key witness; (2) his counsel failed to provide Acrucial evidence@ in the form of a diagram or other visual depiction of the apartment complex; and (3) his counsel=s representation as a whole was ineffective. A. Failure to Call a Witness Appellant first argues that his counsel was ineffective because he failed to call a witness key to his defense. At trial, appellant testified that some people were shooting at him. He testified that a man named Quincy was chasing him, but it was not clear from his testimony whether Quincy or another person was shooting at him. Three defense witnesses corroborated appellant=s version of the events. Two of the witnesses were unable to identify the other shooter, but one testified Quincy was the other shooter. Appellant testified Quincy was incarcerated at the time of trial and argues on appeal that his counsel should have called him to testify. Appellant also asserts on appeal that his counsel never interviewed Quincy. However, he does not cite to anything in the record to support this assertion. Appellant did not argue he received ineffective assistance in a motion for new trial, and the record does not indicate Quincy=s potential testimony or the motivation behind the decision not to call him as a witness. There is a strong presumption that an attorney=s performance falls within the range of reasonable assistance. See Strickland, 446 U.S. at 689. Therefore, when there is a possibility that an attorney=s decision could have been the result of objectively reasonable trial strategy and the reasons for the attorney=s conduct do not appear in the record, we must defer to the attorney=s judgment. See Freeman v. State, 125 S.W.3d 505, 511B12 (Tex. Crim. App. 2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003); Ortiz v. State, 93 S.W.3d 79, 88B89 (Tex. Crim. App. 2002). Nonetheless, appellant argues that his counsel admitted at trial he should have called Quincy as a witness. However, appellant cites to his counsel=s statements that the prosecution should have called Quincy as a witness. If anything, these statements demonstrate appellant=s counsel strategized that the witness=s testimony would be harmful to appellant. Accordingly, in the absence of any evidence indicating why Quincy was not called as a witness, appellant has failed to meet his burden to show his counsel=s performance was deficient. B. Failure to Provide Visual Depiction of Apartment Complex Appellant also argues that his counsel was ineffective because he failed to provide a defense witness with a diagram or map of the apartment complex. However, again, appellant points to the prosecution=s cross-examination of the witness. During cross-examination, the State asked a defense witness to draw a diagram to indicate where she was located in relation to the shooters. Appellant contends that the witness=s testimony was confusing without a proper diagram. However, appellant cites no authority for the proposition that his counsel should have been allowed to interject and provide a diagram during the State=s examination of a witness. Moreover, failure to aid the State in its cross-examination does not support appellant=s ineffective-assistance-of-counsel claim. C. Overall Representation Appellant=s last argument is based on several negative statements made by his counsel throughout the trial. He contends these statements show the overall representation was deficient. Near the beginning of trial, appellant=s counsel requested the trial court ask any questions it had for the witnesses. The trial court responded that it would Afeel free to jump in,@ and appellant=s counsel rejoined with AWell, I hope you do. I need all the help I can get.@ Appellant=s counsel also stated, during cross-examination of one of the State=s witnesses, that he was confused, and that he was Aalways confused, if you know me.@ Further, appellant=s counsel drew out his argument for a directed verdict for the purpose of stalling before his witnesses arrived. He stated Asometimes I have a hard time keeping a straight face,@ and AI am stalling obviously. But not for too long, I fear.@ Finally, during the punishment phase, appellant=s counsel questioned appellant=s mother regarding appellant=s salary and then asked AWell, how come he hasn=t been paying me then?@ At best, these statements can be viewed as a self-effacing style aimed, however ineffectively, to establish a light and friendly relationship with the trial court as trier-of-fact, appellant, and appellant=s mother. At worst, the statements are unprofessional and inappropriate. However, here, there is no evidence appellant=s counsel failed to research the relevant law or failed to interview and prepare witnesses. To the contrary, the record reveals that appellant=s counsel conducted a thorough cross-examination of the State=s key witnesses and called seven defense witnesses, including appellant. Viewing the representation as a whole, we conclude the performance of appellant=s counsel was not deficient. To the extent that some of his counsel=s comments may be viewed as falling below an objective standard of reasonableness, appellant has not shown a reasonable probability that the outcome would have been different but for the unprofessional comments. See Strickland, 466 U.S. at 694 (holding a defendant must show a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different). Accordingly, we overrule appellant=s second issue. The judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed August 31, 2006. Panel consists of Justices Fowler, Seymore and Mirabal.[2] Do Not Publish C Tex. R. App. P. 47.2(b). [1] The State argues appellant failed to preserve error because he made his offer of proof outside the court=s presence. However, appellant obtained a ruling on his offer of proof, and it appeared the substance of the offer was made known to the court. See Fox v. State, 115 S.W.3d 550, 559 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (concluding error was properly preserved when the record demonstrated the trial court knew what it was excluding). [2] Senior Justice Margaret Garner Mirabal sitting by assignment.