Leach, Eddie v. State

Affirmed and Memorandum Opinion filed March 30, 2006 Affirmed and Memorandum Opinion filed March 30, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-04-00593-CR ____________ EDDIE LEACH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 44,612 M E M O R A N D U M   O P I N I O N Challenging his conviction for possession of a deadly weapon in a penal institution, appellant Eddie Leach asserts: (1) the evidence is legally and factually insufficient to support his conviction, (2) his trial counsel was ineffective for failing to object to the trial court=s denial of his request to include an instruction on necessity in the jury charge; and (3) the trial court erred in denying his motion for continuance based on his failure to receive a certified copy of the indictment at least ten days before trial. We affirm. I. Factual and Procedural Background On May 16, 2002, Gary Hall, a correctional officer working in the administrative segregation area of the Darrington Unit of the Texas Department of Criminal Justice, escorted inmate Jerry Adams from the recreational yard to his cell block. As they walked by appellant=s cell, Officer Hall observed appellant reach through a slot in the door of his cell with a Ashank@Ca sharp piece a metal approximately two inches long wrapped in a cloth. When Officer Hall and Adams reached Adams=s cell, Officer Hall noticed that Adams had been wounded and took him to the medical department for treatment. Officer Hall then discussed this incident with Sergeant Phillip Jones. Sergeant Jones went to appellant=s cell and noticed that the food slot was opened but the door was secure. Appellant was searched and removed from the cell. Sergeant Jones then thoroughly searched the cell and found a weapon, some paper used to jam the food slot open, and a towel. Sergeant Jones identified the weapon as a Ashank,@ a homemade device similar to a knife. He believed that this weapon was capable of causing death or serious bodily injury. Appellant was indicted for the offense of possession of a deadly weapon in a penal institution. He pleaded not guilty. At trial, appellant testified and admitted to possessing a weapon on the day of the assault. He further admitted to assaulting Adams on May 16, 2002. Appellant also admitted that he still had the weapon that he used during the assault in his hands when Sergeant Jones arrived at his cell. Appellant claimed, however, that the weapon admitted into evidence at trial was not the same weapon that he used during the assault. The jury found appellant guilty as charged, and appellant received a sentence of six years= imprisonment for possession of a deadly weapon in a penal institution. II. Analysis A. Is the evidence legally and factually sufficient to support appellant=s conviction? In his first two issues, appellant contends that the evidence is legally and factually insufficient to support his conviction. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). To support a conviction for possession of a deadly weapon in a penal institution, the State must show that the accused (1) exercised actual care, control, or custody of the weapon, (2) was conscious of his or her connection with it, and (3) possessed the weapon knowingly or intentionally. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Nguyen v. State, 54 S.W.3d 49, 52B53 (Tex. App.CTexarkana 2001, pet. ref=d). The evidence used to satisfy these elements can be direct or circumstantial. See Brown, 911 S.W.2d at 747; Nguyen, 54 S.W.3d at 53. Whether direct or circumstantial evidence is used, the State must establish that the accused=s connection with the weapon was more than just fortuitous. See Brown, 911 S.W.2d at 747; Nguyen, 54 S.W.3d at 53. We conclude there is sufficient evidence linking appellant to the weapon. Officer Hall observed appellant reach through a slot in the door of his cell with a piece a metal approximately two inches long. Though wrapped in a cloth, the Ashank@ was exposed and sharp. After learning of the incident, Sergeant Jones went to appellant=s cell and after a thorough search of the cell, he found a homemade device similar to a knife. Sergeant Jones further testified that this Ashank@ was capable of causing death or serious bodily injury. Appellant also testified. He admitted to possessing a weapon the day of the assault. He further admitted to assaulting Adams on May 16, 2002. Appellant, however, asserted that he still had the weapon used during the assault in his hands when Sergeant Jones arrived at his cell. The only dispute was that appellant claimed the weapon admitted into evidence at trial was not the same weapon he used during the assault. The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes, 991 S.W.2d at 271. The jury was free to believe or disbelieve any portion of the witnesses= testimony. Sharp, 707 S.W.2d at 614. Based on the evidence, we conclude that the jury could have found the essential elements of the crime beyond a reasonable doubt. We further conclude that the evidence is both legally and factually sufficient to support appellant=s conviction for possession of a deadly weapon in a penal institution. Accordingly, we overrule appellant=s first two issues. B. Was appellant denied effective assistance of counsel? In his third issue, appellant contends that he was denied effective assistance of counsel when his trial counsel allegedly failed to object to the trial court=s denial of his request for the inclusion of an instruction on necessity in the jury charge. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 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, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as here, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). While the Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy, that court has been inconsistent in describing the legal standard by which we should determine whether a particular case constitutes such a rarity. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) (stating that facts at hand presented a Arare case@ in which ineffective assistance can be found on direct appeal based on a record silent as to counsel=s trial strategy); Andrews, 159 S.W.3d at 104 (Keller, P.J., dissenting) (stating that the Court of Criminal Appeals has been inconsistent in its approaches to ineffective assistance claims on direct appeal based on a silent record and indicating that the court=s approach in Andrews is inconsistent with its approach in Freeman v. State, 125 S.W.3d 505 (Tex. Crim. App. 2003)). In early 2005, the Court of Criminal Appeals indicated that appellate courts should find ineffective assistance as a matter of law if no reasonable trial strategy could justify trial counsel=s conduct, regardless of whether the record adequately reflects trial counsel=s subjective reasons for acting as she did. See Andrews, 159 S.W.3d at 102. Shortly thereafter, the Court of Criminal Appeals returned to an earlier formulation and stated that, absent an opportunity for trial counsel to explain her actions, appellate courts should not find ineffective assistance unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, __ S.W.3d __, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Looking to the high court=s most recent pronouncement, we follow the legal standard from Goodspeed. To preserve error relating to the charge, a defendant must either object to the charge or make a request for a special charge on the issue in question. Tex. Code Crim. Proc. Ann. arts. 36.14, 36.15 (Vernon Supp. 2005); Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App.1996). A requested charge need not be Ain perfect form.@ Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996). A defendant preserves error for appellate review if the request is sufficiently specific to put the trial court on notice of an omission or error in the charge. Brazelton v. State, 947 S.W.2d 644, 647 (Tex. App.CFort Worth 1997, no pet.). Under article 36.15, if the defendant requests a special charge no objection is required to preserve error. Guzman v. State, 567 S.W.2d 188, 190 (Tex. Crim. App. 1978). All that is necessary under art. 36.15 is that the requested charge be in writing or dictated to the court reporter. Id. Prior to the charge being read to the jury, appellant requested that an instruction on the defense of necessity be added to the charge. In addition, appellant=s trial counsel properly made this request in writing and tendered it to the trial court as ADefendant=s Requested Jury Issue Number One.@ The trial court denied this request on the record. Appellant received an adverse ruling to his request; and no further objection was necessary. See Vasquez, 919 S.W.2d at 435; James v. State, 772 S.W.2d 84, 112 (Tex. Crim. App. 1989). Because appellant=s trial counsel preserved error on this issue, appellant was not denied effective assistance of counsel. Therefore, we overrule appellant=s third issue. C. Did the trial court err in overruling appellant=s objection that he was not served with a certified copy of the indictment ten days before trial commenced? In his fourth issue, appellant contends the trial court erred in denying his motion for continuance because he was not served with a certified copy of the indictment at least ten days before trial commenced, as required under articles 25.01, 27.11, and 27.12 of the Texas Code of Criminal Procedure. Appellant objected prior to the start of trial that he was not properly served with a certified copy of the indictment. Prior to this objection, appellant announced ready subject to an unrelated motion for continuance. Appellant=s written motion for continuance did not include this ground as a basis for continuance. Appellant also does not appear to challenge the trial court=s denial of the continuance motion on the actual grounds asserted therein. Thus, the sole issue before this court is whether the trial court reversibly erred in overruling appellant=s objection that he had not been properly served with a certified copy of the indictment ten days before trial. We conclude that the trial court did not err. In support of his arguments, appellant relies on articles 25.01, 27.11, and 27.12 of the Texas Code of Criminal Procedure. Article 25.01 states: In every case of felony, when the accused is in custody, or as soon as he may be arrested, the clerk of the court where an indictment has been presented shall immediately make a certified copy of the same, and deliver such copy to the sheriff, together with a writ directed to such sheriff, commanding him forthwith to deliver such certified copy to the accused. Tex. Code Crim. Proc. Ann. art. 25.01 (Vernon 1989). Article 27.11 provides: AIn all cases the defendant shall be allowed ten entire days, exclusive of all fractions of a day after his arrest, and during the term of the court, to file written pleadings.@ Id. art. 27.11. Article 27.12 states: AIn cases where the defendant is entitled to be served with a copy of the indictment, he shall be allowed the ten days time mentioned in the preceding Article to file written pleadings after such service.@ Id. art. 27.12. Appellant relies on the statement in Johnson v. State that the right to be served with a copy of the indictment at least ten days before trial is absolute. 567 S.W.2d 214, 215 (Tex. Crim. App. 1978). The Johnson case involved a reindictment where only six days had elapsed between the time the grand jury returned the indictment and the day trial began. See Johnson, 567 S.W.2d at 214. Furthermore, in Johnson, the defendant was never served with the actual indictment on which he was tried, and there was no indication that the defendant=s counsel obtained a copy of this indictment or that counsel had an adequate time to prepare for trial. See id. at 214B16. The record in the case before us is silent as to whether appellant personally received a certified copy of the indictment. However, the record indicates appellant=s counsel discussed the indictment with appellant long before trial began. Moreover, fifty-one weeks elapsed between the time the grand jury issued the indictment and the beginning of appellant=s trial, which gave appellant and his trial counsel ample time to prepare for trial. Appellant=s counsel changed about six weeks before trial, after appellant=s first counsel withdrew because of a conflict of interest.[1] Appellant was arraigned more than eight months before trial and never once stated that he did not know or understand the charges against him. The record clearly demonstrates appellant had notice and knowledge of the charges against him because he sought to have the indictment quashed. In addition, he demanded a speedy trial and announced ready at trial subject to a motion for continuance that related to allegedly unavailable witnesses. This motion had nothing to do with the indictment, appellant=s general readiness for trial, or appellant=s knowledge or understanding of the charges against him. The trial court denied this motion, and, on appeal, appellant has not assigned error regarding the denial of this motion. Appellant=s only complaint is a technical oneCthat he did not receive a certified copy of the indictment within the statutory tenBday period. The purpose of articles 25.01, 27.11, and 27.12, sometimes collectively referred to as the Aright to time statutes,@ is to afford the accused or his counsel the opportunity to carefully examine the formal accusation and to prepare and file any necessary pleadings relating thereto. Oliver v. State, 646 S.W.2d 242 (Tex. Crim. App. 1983). When an accused timely and properly invokes his rights under the statute, the court must afford him the statutory ten days. See Roberts v. State, 93 S.W.3d 528, 531 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d); Ashcraft v. State, 900 S.W.2d 817, 830 (Tex. App.CCorpus Christi 1995, pet. ref=d). However, the right-to-time statutes are not properly invoked when the objectives of the statute have been achieved. Ashcraft, 900 S.W.2d at 830; see also Wray v. State, 232 S.W. 808, 809B10 (1921). Here, the record contains no evidence as to whether appellant was formally served with a certified copy of the indictment. Presuming for the sake of argument appellant was not served, the objectives of article 27.12 have been achieved. Neither appellant nor his counsel requested an opportunity to file any additional motions or pleadings. There was no indication at the beginning of trial that appellant was unaware of or unfamiliar with either the nature of the charges against him or the State=s evidence. In fact, appellant announced ready subject to a motion for continuance and he did not seek additional time to file any additional pleadings. We conclude that the trial court did not reversibly err in overruling any objection made in connection with this complaint. See Alexander v. State, 137 S.W.3d 127, 130B31 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d) (holding that State=s failure to serve defendant with copies of indictments against him did not affect his substantial rights); Tatmon v. State, 786 S.W.2d 523, 524B26 (Tex. App.CAustin 1990) (holding trial court did not err in overruling right to time objection when defendant=s attorney obtained a copy of the indictment, had more than ten days to prepare for trial, filed various pretrial motions, and discussed the indictment with defendant), aff=d on other grounds, 815 S.W.2d 588 (Tex. Crim. App. 1991). Accordingly, we overrule appellant=s fourth issue. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed March 30, 2006. Panel consists of Justices Hudson, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The conflict arose when appellant filed a grievance against his first counsel and threatened a civil lawsuit against him.