Tony Warren Nix v. State ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-96-00395-CR



Tony Warren Nix, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF COKE COUNTY, 51ST JUDICIAL DISTRICT NO. 963, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING

After Tony Warren Nix was convicted of murder the jury fixed punishment at 99 years' confinement in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Penal Code Ann. § 19.02(b)(2) (West 1994). Appellant brings nineteen points of error. We will overrule appellant's points of error and affirm the judgment of conviction.

BACKGROUND

Appellant drove to the rural home of the Coke County sheriff about 9:00 p.m. on April 22, 1995, and told the sheriff that he and his girlfriend, Janet Flanagan Yates, had a fight and that she was hurt "bad." There was blood on appellant's hands and clothes. Appellant described the location where he had left Janet Yates, and the sheriff called other law enforcement officers who reached the scene before the sheriff. The car in which appellant arrived had blood on the dashboard, seats, floor, headliner and door panels. A bloody hunting knife was on the driver's side of the dashboard and a revolver on the right side of the driver's bucket seat. Janet Yates' body was found face down in a large pool of blood in the middle of a paved road three-tenths of a mile from appellant's mobile home. The location was about a fifteen-minute drive from the sheriff's house. Her body had numerous stab and cut wounds, with a group of eight knife wounds on her right lower face and neck. The knife had penetrated the jugular vein, severed the right carotid artery, cut almost through the larynx, penetrated the base of the tongue and incised marks on the vertebrae of the neck.

CUSTODIAL STATEMENTS

In his first point of error, Nix contends the trial court erred by permitting a fellow jail inmate to testify regarding statements made to him by appellant. Appellant contends the inmate was acting as an agent of the State at the time of the conversation and that the requirements for admission of an oral statement made pursuant to custodial interrogation were not met. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (West Supp. 1998) (specifies recording of statement, warnings, and waiver of rights). It is undisputed that those requirements were not met. The State's reply to this point is that the inmate was not acting as an agent of the State, and therefore the statement did not stem from custodial interrogation. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (West 1979)("Nothing . . . precludes the admission of a statement . . . that does not stem from custodial interrogation . . . ."). The Court of Criminal Appeals has said:

This Court has long held that a statement by an accused person to a fellow cellmate that was voluntary, that did not stem from custodial interrogation, and that was not obtained by the cellmate while acting as an agent of law enforcement officials is admissible evidence against the accused at his trial. See Pinkerton v. State 660 S.W.2d 58, 63-64 (Tex. Cr. App. 1983).

Baldree v. State, 784 S.W.2d 676, 686 (Tex. Crim. App. 1989).

"Custodial interrogation" was defined in Miranda v. Arizona, 384 U.S. 436, 444 (1966), as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Simply being in custody is not sufficient to invoke Miranda or the Texas statutory protections. There must be some form of interrogation. See Kelley v. State, 817 S.W.2d 168, 173 (Tex. App.--Austin 1991, pet. ref'd). Interrogation connotes a calculated practice on the part of a government official in an attempt to evoke an incriminating response. McCrory v. State, 643 S.W.2d 725, 734 (Tex. Crim. App. 1983). Further, interrogation is "questioning initiated by law enforcement officers." Wicker v. State, 740 S.W.2d 779,785 (Tex. Crim. App. 1987). The determination whether appellant's statement in this case was elicited by custodial interrogation hinges upon whether the inmate witness was acting as an agent of the State pursuant to a police practice at the time the statement was made. See Paez v. State, 681 S.W.2d 34, 37 (Tex. Crim. App. 1984) (confession to State child placement worker who interviewed defendant in custody in hospital about care for her children was not custodial interrogation).

The inmate witness, Clyde Winsberry, was a trusty at the Tom Green County Jail when appellant was brought there from Coke County after his arrest. About 9:00 a.m. the jailers asked Winsberry to serve on "fire watch." Some witnesses referred to it as a "suicide watch." This implied a responsibility to observe the condition and behavior of an inmate who might be suicidal or have some other health problem to insure that he did not hurt himself. Winsberry was not in the cell with appellant but could observe him and talk to him from outside the cell. Appellant was initially in a holding cell very near the booking desk and was within view of the jailers on duty. When Winsberry first saw appellant he was pacing, rocking, coughing and spitting on the floor and speaking gibberish. Winsberry observed track marks on his arm. During the time Winsberry was watching and talking to appellant, he asked if appellant had shot some bad dope. Nix told him he had gotten some bad dope, that he had been taking dope for a long time and he had never before had anything like what he had taken and that someone would pay for it. After a while appellant was moved to another cell and his behavior changed. He calmed down and could speak clearly. Winsberry stayed in the area for thirty minutes to an hour. During this time, appellant told him he had just ruined his whole life because he had just killed his old lady. He said they were in the car and he had punched her in the chest with a knife. He told Winsberry his car and dash were wet and slippery with the blood. He said that after he had killed his old lady he drove to a house where he knew a police car would be. Nix was concerned about what might happen to him, and thought he was looking at forty or sixty years in prison.

In a hearing outside the presence of the jury, Winsberry was questioned at length about the circumstances of his being on fire watch and what his duties were. Winsberry had been in jail for about three months on a pending motion to revoke his probation. As a trusty, his normal duties were to work in the kitchen and on fire watch. Fire watch was a volunteer job and he had done it thirty or forty times. He was not given any instructions about interviewing or interrogating the person he watched. No one told him to talk to appellant or not to talk to him. Normally, Winsberry would talk to the people he watched to make sure they were okay. Winsberry was not told appellant's name, didn't know what offense he may have committed, or why he was in jail. Winsberry did not know that somebody had been killed, and didn't necessarily believe what appellant told him. After Nix had told Winsberry these things, but while he was still on fire watch, two of the jailers on duty called Winsberry aside and told him that there was a ranger who would want to talk to him about what appellant had said to him. Winsberry left about 11:00 a.m. to go to the kitchen to work. A Texas Ranger investigating the case interviewed Winsberry later that afternoon at the jail and recorded the interview. Winsberry testified at trial that he had talked with all of the thirty or forty prisoners he monitored on fire watch. He had never told the jailers anything about anyone's comments. He had never before been asked about any conversation he had with a prisoner while on fire watch. He did not volunteer the information about what appellant told him. The jailers had approached him about it.

Appellant points to no evidence of any agreement, arrangement, or practice for Winsberry to act as an agent of the State to interrogate appellant. Appellant suggests that Winsberry's trusty status with some special privileges makes him an agent of the State. None of the privileges or duties given to Winsberry placed him in a law-enforcement role. Appellant and the State both refer to Macias v. State, 733 S.W.2d 192 (Tex. Crim. App. 1987), as the most relevant authority. In Macias, one inmate, Parker, testified that he overheard the defendant Macias confess to murder to Clarke, another inmate. An assistant district attorney had requested the captain in charge of the jail to place Macias in a cell with Clarke, who had on two previous occasions provided information to the district attorney's office about what defendants charged with murder had confessed to him. The assistant district attorney did not tell the jail captain why he wanted Macias put in the same cell with Clarke, and Clarke was not informed why he and Macias had been placed together. Four days after they had been put in the same cell, Clarke told the jail captain he wanted to speak with someone in the district attorney's office about an important matter. Clarke told the assistant district attorney that Macias had confessed to the murder of a husband and wife. Clarke also said that another inmate, Parker, might have overheard the conversations. At trial Parker testified, Clarke did not. The Court of Criminal Appeals found that since Clarke was never informed why Macias was placed in the same cell, and Clarke was not asked to question appellant or to report his discoveries, Clarke was not acting as an agent of law enforcement personnel in his conversations with Macias. Hence, the restrictions placed on custodial interrogation did not apply to preclude admission of the statements made to Clarke and overheard by Parker. In the instant case, Winsberry's situation is even less suggestive that he was an agent of the State, since Winsberry had no history of previous reports to officials such as Clarke had made. Also, there was no evidence that Winsberry was assigned the fire watch at the request of any law enforcement person involved in the investigation of this offense.

The instant case is much closer factually to Kelley v. State, 817 S.W.2d 168 (Tex. App.--Austin 1991, pet. ref'd). In Kelley, a neighbor of the defendant was a member of the Emergency Medical Service called to respond to a shooting at the Kelley trailer house. Her husband, Larry Conner, was a minister and part-time pharmacist who came along on the call which was just 300 yards from their house. Conner was not acquainted with Kelley but knew him by sight. Conner saw a trooper talking to Kelley, but heard nothing. When the trooper and Mrs. Conner started toward the trailer house, the trooper asked Conner to stay with Kelley. They sat at a picnic table. Conner only knew that there had been a shooting and had no instructions from the trooper. Conner explained at trial that he was concerned about Kelley's health and asked, "How do you feel?" Kelley replied, "How do you think someone who just did what I did would feel?" Conner explained that he was just inquiring about his health, and Kelley assured him he was fine physically. Kelley went on to comment "that he blew her away and that he knew that the State would fry him for it and that God, too, would fry him for it."

In that case, we noted that Conner was only asked to stay with Kelley. He was not asked to interrogate him, was not shown to be an agent of the police, and his only question was directed to appellant's health. We held that even if appellant were in custody, the statements did not stem from custodial interrogation and were admissible. In the present case, Winsberry was there to watch out for appellant's health, was not asked to question appellant, had never volunteered information obtained from inmates he was assigned to watch, and only gave information in this case upon request from a law enforcement officer he had not spoken with until after his observation of appellant. There was no evidence that Winsberry was a part of a system or practice to obtain information from inmates. Appellant has failed to show that Winsberry was an agent of the State and thus the statements made to him did not stem from custodial interrogation. We overrule the first point of error.

FINDINGS OF FACT

Appellant's second point of error is that the trial court failed to file specific findings of fact supporting the judge's determination that the statement was voluntary. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West 1979). The State's position is that a statement that does not stem from custodial interrogation is not subject to the requirement that findings of fact be filed.

In this case, the careful trial court held a hearing outside the presence of the jury when appellant requested it. The specific basis for the request does not appear in the record, but the questioning of the witness Winsberry and the arguments at the hearing were clearly limited to the issue of whether he was acting as an agent of law enforcement at the jail. Winsberry was the only witness at the hearing, and nothing in his testimony gave any basis for a conclusion that he was an agent of the State. There was no conflicting evidence; there was no fact in dispute upon which the trial court could make a finding. Even if the trial court disbelieved everything Winsberry said, there still would be no evidence that he was an agent of the State. In Trybule v. State, 737 S.W.2d 617, 621 (Tex. App.--Austin 1987, pet. ref'd), we stated that before any fact finding as to voluntariness of a statement is required, there must be some evidence that the statement was not voluntary. See Pete v. State, 471 S.W.2d 841, 843 (Tex. Crim. App. 1971); Miller v. State, 666 S.W.2d 269, 274 (Tex. App.--Dallas 1984, pet. ref'd). We overrule point of error number two.

HEARSAY

Appellant's third point of error contends that the trial court erred in sustaining the State's hearsay objection to the Coke County sheriff's being asked to testify about the toxicology results from the autopsy report. The sheriff was the first witness. Appellant sought to show that methamphetamine had been found in Janet Yates's body in order to determine whether this fact influenced the sheriff in his investigation of the case. The trial court sustained the objection, but permitted appellant to ask, without mentioning methamphetamine, whether the sheriff did something else after reading the autopsy report. The sheriff's answer was "No." Later in the trial the toxicology findings were properly admitted into evidence through the testimony of a physician who was a forensic pathologist in the medical examiner's office where the autopsy was performed. The sheriff was also called again as a witness on another matter after the toxicology report was admitted into evidence. Appellant cross-examined the sheriff but did not attempt to renew the question of whether the fact that the deceased had methamphetamine in her body influenced the sheriff's investigation.

On appeal, we review the trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. See Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996), cert. denied, 117 S. Ct. 1561 (1997). Only if a decision is so clearly wrong as to lie outside the zone where reasonable persons might disagree can we say that the trial court has abused its discretion. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (opinion on rehearing).

The Court of Criminal Appeals has stated that testimony frequently will have an impermissible hearsay aspect along with a permissible nonhearsay aspect, that it is almost always relevant for a testifying officer to relate how she happened upon the scene of the crime, and that in such instances it is permissible for her to testify that she was acting in response to "information received." Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). Here, the trial judge permitted appellant to ask a question designed to determine whether the sheriff's investigation was influenced by the autopsy report without eliciting the hearsay.

Information in an autopsy report prepared by a person other than the witness testifying is hearsay. Garcia v. State, 868 S.W.2d 337, 339 (Tex. Crim. App. 1993). See Butler v. State, 872 S.W.2d 227, 229 (Tex. Crim. App. 1994) (autopsy report is admissible as an exception to the hearsay rule under the public records provision of Tex. R. Crim. Evid. 803(8)(B)). Various cases have discussed chemist's and toxicologist's reports in terms of whether a particular exception to the hearsay rule is applicable to permit their introduction in evidence, but in none of these cases has it been contended that such a report is not hearsay if it was prepared by a person who is not testifying. See Aguilar v. State, 887 S.W.2d 27 (Tex. Crim. App. 1994) (record insufficient to determine whether chemists and toxicologists of Bexar County Forensic Science Center are law enforcement personnel and thus excluded from the public record exception to the hearsay rule); Cole v. State, 839 S.W.2d 798 (Tex Crim. App. 1992) (DPS chemists held to be law enforcement personnel, thus report not admissible under hearsay exception for public records, Tex. R. Crim. Evid. 803(8)(B)); Durham v. State, 956 S.W.2d 62 (Tex. App.--Tyler 1997, pet. ref'd) (chemists and toxicologists of Bexar County Forensic Science Center are not law enforcement personnel, thus report admissible under public record exception); Caw v. State, 851 S.W.2d 322, 323-24 (Tex. App.--El Paso), pet. ref'd, 864 S.W.2d 546 (Tex. Crim. App. 1993) (chemists of Dallas County Forensic Laboratory are not law enforcement personnel, thus report admissible as public record exception to hearsay). These authorities make it clear that the evidence in question was hearsay as to the sheriff, and the trial court was not unreasonable in sustaining the State's objection.

In any event, the information in the report was eventually admitted and appellant had another opportunity to confront the sheriff with this information. No possible harm could have occurred because of the trial court's ruling. We overrule appellant's third point of error.

PHYSICAL EVIDENCE

Appellant's fourth point of error contends the trial court erred by admitting into evidence five items from the rape kit utilized in tests on the deceased. One item was fingernail clippings, two were slides, and two more were swabs. Appellant's sole objection was that these items were not relevant. The physician from the medical examiner's office testified that a rape kit is obtained on all female homicide victims. The State argues the slides and swabs were relevant to show there was no physical evidence that any person other than appellant had recent sexual contact with the deceased. A Department of Public Safety Crime Laboratory employee testified that the fingernail clippings had traces of blood on them. The slides and swabs at issue are from the oral and rectal samples which tested negative for presence of spermatozoa. (Vaginal samples were positive and linked to appellant, and no objection was made to their admission).

A trial court has broad discretion in admitting or excluding evidence. Only when a trial court has abused its discretion should an appellate court conclude that the ruling was erroneous. Montgomery, 810 S.W.2d at 390-91. Questions of relevance should be left largely to the trial court, relying on its own observations and experience, and will not be reversed absent an abuse of discretion. Id. at 391. The evidence at issue here may be of minimal importance but, as the trial court noted, it does show a part of the overall condition of the body of the deceased. We cannot say that the trial court abused its discretion in admitting this evidence. Even if it were error to have admitted it, there is no harm. Appellant does not argue that the evidence had any negative impact on his defense or affected any substantial right. Error may not be predicated upon a ruling admitting evidence unless a substantial right of the appellant is affected. Tex. R. Evid. 103(a). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Under either the former or present rule for determining reversible error, there was none here. We determine beyond a reasonable doubt that admission of this evidence made no contribution to the conviction or punishment. See former Tex. R. App. P. 80(b)(2). If there was error in the admission of the evidence, it was harmless error under the test of the current Rule 44.2(b). See Tex. R. App. P. 44.2(b) (nonconstitutional error that does not affect substantial rights must be disregarded). We overrule point of error four.

PREVIOUS CONVICTIONS

Appellant's fifth and sixth points of error relate to a witness's misstatement, at the punishment hearing, about a prior offense. The fifth point of error complains of the denial of appellant's motion for mistrial, while the sixth point of error complains of the trial court's later denial of appellant's motion for new trial based upon the same facts. The State introduced documentary evidence of two previous convictions, one for possession of methamphetamine in 1980 and another for possession of marihuana in 1981. The State then called the arresting officer in the methamphetamine case. This witness testified that in 1980 he and his partner were detectives in the narcotics service of the San Angelo Police Department and had information that appellant was transporting narcotics from Ozona to San Angelo. They stopped appellant's car and got out of their vehicle. Appellant then started up his car and tried to run over both of them. They jumped aside. He missed and drove away. Appellant stopped a short way down the road after shots were fired and he was then arrested. The State asked the witness if he was aware that appellant had been convicted of possession of methamphetamine as a result of that incident. The witness's answer was essentially that he thought the conviction was for aggravated assault with a motor vehicle. Appellant objected to the witness's erroneous reply and, outside the presence of the jury, contended the misstatement was so inflammatory that the trial court should grant a mistrial. The court inferentially sustained the objection, directed the State to clear up the witness's confusion and overruled the motion for mistrial. Before the jury, the witness was shown the judgment in the methamphetamine conviction and he acknowledged that he was mistaken about appellant's being convicted for something other than possession of methamphetamine.

Appellant's points of error are limited to the witness's confusion about which offense appellant had been convicted for growing out of one incident. The misstatement was promptly corrected. Appellant does not contest the admission of the witness's testimony about the circumstances of the arrest which led to his methamphetamine conviction, and the facts of his attempt to run over the two detectives. His brief acknowledges that a statute specifically permits introduction at the punishment phase of the trial of "evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act." Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1998).

Appellant cites only Boyde v. State, 513 S.W.2d 588 (Tex. Crim. App. 1975), to support his position that the error was so serious that the trial court should have granted a mistrial. Boyde states the general rule that error in asking an improper question or in admitting improper testimony is cured or made harmless by a withdrawal of the evidence or an instruction to disregard. This rule controls except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression created in their minds. Id. at 590. In Boyde, the conviction was reversed because the prosecutor deliberately and repeatedly asked inflammatory questions that the court had prohibited. There is no suggestion of prosecutorial misconduct in the instant case. The State was apparently as surprised by the witness's answer as was the appellant; when the State proposed how the matter could be clarified the trial court approved that suggestion. This is not an extreme case and there was no indication of calculation on the part of the prosecutor to inflame the minds of the jurors. We do not believe there was any potential for the witness's confusion to have inflamed the minds of the jury. The jury already knew the facts of appellant's bad conduct in attempting to run down the detectives, and evidence of his actual convictions had already been admitted. Appellant did not request an instruction to disregard, but we believe that the court's direction to the prosecutor and the prosecutor's withdrawal of the erroneous remark satisfied any such instruction had it been given. The action taken to meet appellant's objection was enough to cure any error that might have arisen from the witness's confusion. No mistrial was justified on this basis. We overrule the fifth and sixth points of error.

INEFFECTIVE ASSISTANCE OF COUNSEL

In points of error seven through nineteen appellant contends he received ineffective assistance of counsel. The separate points specify the particular instances that he believes constitute ineffective assistance on the part of his trial counsel. Appellant's counsel on appeal presents these points of error with the explanation that he does not agree with appellant's legal position on these points, and upon consideration of the matter he does not believe that trial counsel's representation was ineffective. Appellate counsel moved to withdraw from representing appellant because of this difference of legal opinion. The trial court overruled the motion after a hearing at which appellant set forth the instances of what he considers deficient representation. Appellant's counsel's brief sets out the facts in the record that relate to the various points. We will consider the points of error raised.

To show ineffective assistance of counsel, appellant must show that (1) trial counsel's performance was deficient, in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668(1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); O'Hara v. State, 837 S.W.2d 139 (Tex. App.--Austin 1992, pet. ref'd). Counsel's performance is to be judged by the "totality of representation" provided. Strickland, 466 U.S. at 690; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Appellant must show omissions or other mistakes made by counsel that amount to professional errors of a magnitude sufficient to raise a reasonable probability that the outcome of the trial would have been different but for the errors. Id. at 54.

An appellate court must judge the reasonableness of counsel's challenged conduct in light of the facts of the particular case, viewed at the time of counsel's conduct and not by hindsight. We must then determine, in light of all the circumstances, whether the acts or omissions are outside the range of professionally competent assistance. Strickland, 466 U.S. at 690. Appellant bears the heavy burden of proving his ineffective-assistance claim. Counsel is presumed to have made all significant decisions in the exercise of reasonable professional judgment. Id.

Points of error seven through thirteen fault trial counsel's cross-examination of various witnesses. Appellant contends the doctor from the medical examiner's office should have been questioned on a discrepancy between her testimony that some of the knife wounds were on the right cheek and neck while the written autopsy report, which was not admitted into evidence, said the group of wounds were on the left cheek and neck. The reference to the left cheek in the report was obviously inadvertent because it was inconsistent with the more detailed written and graphic descriptions elsewhere in the report. Appellant does not suggest how clearing up the discrepancy would have benefitted his defense.

Appellant contends the sheriff, to whose home he drove to report his crime, should have been more vigorously examined on why he did not conduct a more extensive investigation by interviewing more people in the trailer park where appellant and the deceased lived. He argues that the sheriff should also have been asked why he did not have a "criminalist" at the scene to dust for fingerprints before items were removed from the car in which the murder took place and who would testify about how the evidence was handled. Similarly, appellant wanted trial counsel to cross-examine Texas Ranger Joe Hunt and Department of Public Safety Trooper Roy Blair about handling evidence and processing at the crime scene. Ranger Hunt was cross-examined at length on his investigation, but trial counsel did not concentrate on the handling of physical evidence at the scene. Trooper Blair responded to the scene the night of the incident and was in charge of getting the body of deceased transported to the autopsy. Counsel declined to cross-examine him. Appellant contends, in his general argument that more information on the mishandling of evidence should have been developed, that Blair should have been cross-examined. Appellant wanted counsel to cross-examine the jail inmate witness who testified that appellant confessed to him on the morning after the offense. Appellant thinks the inmate should have been asked about discrepancies between the inmate's report that appellant told him he stabbed his "old lady" in the chest while the autopsy report showed the wounds were on the face and neck. There is no suggestion how giving this witness the opportunity to repeat his testimony might assist appellant's defense. Appellant contends that counsel should have gone into more detail with DPS crime laboratory technicians on lack of testing for traces of makeup on the gun found in the car, and the inadequacy of the DNA test of blood found on the gun. The test used showed that the blood on the gun was consistent with that of deceased. (Her blood was on many parts of the car and items in it.) Appellant thinks counsel should have criticized the use of the "cheap" DNA test rather than the "best" and more accurate one which could have been used. He does not explain how results of the test could benefit his defense.

Cross-examination is generally considered a point of trial strategy on the part of trial counsel which will not be second-guessed by appellate courts. Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973). "Often, the decision to not cross-examine a witness is the result of wisdom acquired by experience in the combat of trial." Id. We have said that complete absence of cross-examination may be a legitimate strategy if it appears that cross-examination would only serve to reinforce the prosecution's theory. Carmona v. State, 880 S.W.2d 227, 236 (Tex. App.--Austin 1994), vacated on other grounds, 941 S.W.2d 949 (Tex. Crim. App. 1997). Appellant's trial counsel reasonably could have decided not to attempt to resolve or clarify possible inconsistencies in the State's case with excessive cross-examination. Appellant makes no showing that any of the cross-examination he now recommends could possibly benefit his defense.

Another group of claimed deficiencies in trial counsel's performance refer to his failure to investigate adequately. Appellant contends that trial counsel should have had independent tests conducted on the pistol for fingerprints, hairs, and makeup traces. He also contends that counsel should have had other items retrieved from the car tested for fingerprints, such as the tire and the air tank in the back seat at the time of the murder. The State had the firearm inspected for fingerprints and the result was negative. Appellant does not suggest what favorable evidence might have been discovered had counsel taken these investigative steps. The automobile in which the stabbing took place was used by both appellant and the deceased. There was no dispute that only deceased and appellant were present in the car at the time of the murder. The presence or absence of their fingerprints, hair, or other personal traces such as makeup, on items in the car do not appear significant in establishing anything about the circumstances of the homicide.

Appellant complains that counsel did not consult with him thoroughly enough, that counsel only visited with him in the jail about six or seven times, and all the meetings were too brief. Appellant does not suggest what information he had that counsel could have learned and used to assist in the defense of the case. Appellant contends that counsel should have provided him before trial with a personal copy of the autopsy report. No legal authority is cited to support this requirement. At trial, appellant testified that he stabbed the deceased only twice and on cross-examination was unable to explain how the six other wounds in the area of the neck were inflicted. At the post-trial hearing on appellate counsel's motion to withdraw, appellant testified that he was shocked to see the diagram (apparently an enlargement of a page of the autopsy report) the State used at trial showing a group of eight stab wounds. He said that trial counsel had told him that counsel had seen the autopsy photographs showing only two stab wounds. (Appellant did not call trial counsel as a witness at the post-trial hearing to verify appellant's recollection of this description of the photographs). Appellant did not go into any more detail as to how having a personal copy of the autopsy report in advance of trial might have assisted his defense.

Appellant complains that trial counsel was ineffective because he opposed the introduction of the autopsy photographs in evidence and prevented the jury from seeing pictures of the actual wounds. He introduced the photos at the hearing on the motion to withdraw. They show the nude upper torso and head of the deceased, one with the head turned to display numerous wounds to the right lower face and neck area. At the hearing, the trial court stated that the objection to the photos "was, or should have been, that they are highly prejudicial and so inflammatory because of the condition of the body that a jury could not reach a reasonable decision because they would be so outraged that someone had cut somebody up this bad." The photos bear State's exhibit tags that are numbered. The record reflects that two of the photos were formally offered, objected to by defense counsel, and excluded from evidence by the trial court. Appellant makes no showing of how his defense was adversely affected by his trial counsel's successful objection which prevented the admission of this seemingly inflammatory evidence.

We agree with appellant's counsel on appeal that these points which appellant insisted be presented have no legal or factual substance and are frivolous. None of the alleged deficiencies in trial counsel's conduct of the case are "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Even if some of counsel's acts or omissions were erroneous, that would not necessarily render counsel's representation ineffective. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992). The accused is not entitled to perfect or errorless counsel. See Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). Isolated instances in the record reflecting errors of omission or commission do not render counsel's performance ineffective, nor can ineffective assistance of counsel be established by isolating one portion of trial counsel's performance for examination. Id. Rather, whether the Strickland test has been met is to be judged by "the totality of the representation" and, "judicial scrutiny of counsel's performance must be highly deferential." Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Appellant has failed to show that any particular decision by trial counsel was of such a serious nature that it fell below the wide range of professionally competent assistance or that the cumulative effect of any errors denied him effective representation. The totality of representation was not so deficient that he was not functioning effectively as counsel.

Moreover, assuming arguendo that all of the points advanced had merit, our review of the clearly admissible evidence dictates that the alleged errors of trial counsel were not of such magnitude to raise a reasonable probability that the outcome of the trial would have been different but for the errors. There was never a dispute in the evidence that appellant killed Janet Yates. Appellant testified at trial that he stabbed her twice in self-defense when she pointed a gun at him while he was standing at the open driver's door. Appellant appeared at the sheriff's home on the night of this offense and reported that his girlfriend was hurt. The interior of the car appellant was driving was covered in blood. The bloody knife was on the dashboard. The sheriff and other law enforcement officers went to the location and found the body of the deceased where appellant said he left her. As he was being driven to jail, Nix volunteered to the Texas Ranger that he had got some bad dope that made him do what he had done. At the jail, he confessed to a fellow inmate that he had just killed his "old lady," that he had punched her in the chest with a knife, that he had just ruined his whole life and was looking at forty to sixty years in prison, that he had been doing drugs for a long time but had never done anything like what he had done that day. Notably, he did not say anything to his fellow inmate, the sheriff or the sheriff's wife, or the ranger about protecting himself from his girlfriend who had pointed a pistol at him. On this evidence, even if all of counsel's complained of actions or omissions were errors, they were not of such a magnitude to raise a reasonable probability that the outcome of the trial would have been different but for the errors. We overrule points of error seven through nineteen.

We affirm the judgment.

John Powers, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: April 30, 1998

Do Not Publish

photos "was, or should have been, that they are highly prejudicial and so inflammatory because of the condition of the body that a jury could not reach a reasonable decision because they would be so outraged that someone had cut somebody up this bad." The photos bear State's exhibit tags that are numbered. The record reflects that two of the photos were formally offered, objected to by defense counsel, and excluded from evidence by the trial court. Appellant makes no showing of how his defense was adversely affected by his trial counsel's successful objection which prevented the admission of this seemingly inflammatory evidence.

We agree with appellant's counsel on appeal that these points which appellant insisted be presented have no legal or factual substance and are frivolous. None of the alleged deficiencies in trial counsel's conduct of the case are "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Even if some of counsel's acts or omissions were erroneous, that would not necessarily render counsel's representation ineffective. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992). The accused is not entitled to perfect or errorless counsel. See Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). Isolated instances in the record reflecting errors of omission or commission do not render counsel's performance ineffective, nor can ineffective assistance of counsel be established by isolating one portion of trial counsel's performance for examination. Id. Rather, whether the Strickland test has been met is to be judged by "the totality of the representation" and, "judicial scrutiny of counsel's performance must be highly deferential." Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Appellant has failed to show that any particular decision by trial counsel was of such a serious nature that it fell below the wide range of professionally competent assistance or that the cumulative effect of any errors denied him effective representation. The totality of representation was not so deficient that he was not functioning effectively as counsel.

Moreover, assuming arguendo that all of the points advanced had merit, our review of the clearly admissible evidence dictates that the alleged errors of trial counsel were not of such magnitude to raise a reasonable probability that the outcome of the trial would have been different but for the errors. There was never a dispute in the evidence that appellant killed Janet Yates. Appellant testified at trial that he stabbed her twice in self-defense when she pointed a gun at him while he was standing at the open driver's door. Appellant appeared at the sheriff's home on the night of this offense and reported that his girlfriend was hurt. The interior of the car appellant was driving was covered in blood. The bloody knife was on the dashboard. The sheriff and other law enforcement officers went to the location and found the body of the deceased where appellant said he left her. As he was being driven to jail, Nix volunteered to the Texas Ranger that he had got some bad dope that made him do what he had done. At the jail, he confessed to a fellow inmate that he had just killed his "old lady," that he had punched her in the chest with a knife, that he had just ruined his whole life and was looking at forty to sixty years in prison, that he had been doing drugs for a long time but had never done anything like what he had done that day. Notably, he did not say anything to his fellow inmate, the sheriff or the sheriff's wife, or the ranger about protecting himself from his girlfriend who had pointed a pistol at him. On this evidence, even if all of counsel's com