Success Irhirhi v. State ( 2016 )

Opinion issued December 6, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00002-CR
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SUCCESS IRHIRHI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 9
Harris County, Texas
Trial Court Case No. 1905854
MEMORANDUM OPINION
Success Irhirhi appeals his conviction of misdemeanor assault on a family
member, arguing that his conviction is based on inadmissible hearsay, in violation
of his rights to confront witnesses against him under the constitutions of the United
States and of Texas, and that he received ineffective assistance of counsel at trial.
We affirm.
Background
On July 5, 2013, Irhirhi got into an argument with his girlfriend, Fatmata
Sensie, at her home. The argument became physical, and Irhirhi punched Sensie in
her face with a closed fist, causing her lip to bleed and causing pain. Sensie
threatened to call the police, and Irhirhi left. Sensie called 911, asking for police to
be dispatched to her home, and explained that her boyfriend had hit her and she
was bleeding.
Deputy B. Frazier responded to the scene and interviewed Sensie. Sensie
told him that Irhirhi had hit her during an argument. He observed blood running
down her chin, on the floor of the “living room area,” and on the floor of the
bathroom where Sensie reported that the assault occurred. Frazier asked Sensie to
call Irhirhi on his mobile phone, which she did. Frazier then asked Irhirhi to return
to the scene.
When Irhirhi returned to the scene, he provided his identification to Deputy
Frazier and stated that he had argued verbally with Sensie, but he denied
committing physical violence. Both Sensie and Irhirhi stated that they were the
only individuals at the home at the time of the assault. Based on these facts and
the physical evidence that he observed, Deputy Frazier called the district attorney’s
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office and arrested Irhirhi. He also asked Sensie if she needed medical treatment,
but she refused treatment.
At trial, the only witnesses were Deputy Frazier and Irhirhi; Sensie did not
testify. Frazier testified that he responded to the scene, where he encountered
Sensie and identified her based on her driver’s license. Sensie told him that she
had argued with Irhirhi at her home, that Irhirhi had left, and she called him back
to retrieve some of his personal items. When Irhirhi returned, they argued again,
and Sensie stated that she wanted to end the relationship. According to Frazier,
Sensie “said she went into her master bedroom to get away from [Irhirhi], and
that’s when he forced his way into the room where she was” and hit her with a
closed fist, causing pain and “what appeared to be a laceration on the inside of her
lower lip.” Frazier further testified that Sensie said she fell to the floor and
threatened to call the police, at which point Irhirhi left the home. Frazier testified
that Sensie was “very upset” and crying while relating her story. She was still
bleeding at the time, using a towel to wipe her chin, but the blood intermittently
ran down her chin and had dripped on the floor in several places.
Frazier also testified that he asked Sensie to call Irhirhi and ask him to return
to the scene. Irhirhi returned, and Frazier identified him using his driver’s license.
Irhirhi admitted to arguing with Sensie, but denied using physical violence. After
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calling the district attorney’s office, Frazier arrested Irhirhi. He also identified
Irhirhi at trial.
Irhirhi testified that Sensie was his girlfriend, and they lived in separate
residences. According to Irhirhi, they argued because Sensie was preparing to
travel to another state for educational reasons and wanted to get married, but
Irhirhi discovered photos of her and another man. He conceded that they argued,
but denied any physical violence.
The State also introduced the recording of Sensie’s 911 call into evidence
and played it for the jury. In the call, Sensie identifies herself, states that her
boyfriend hit her, states his name, states that he does not live with her, and states
that she is bleeding.
Irhirhi’s counsel attempted, both in questioning the witnesses and in
argument, to develop several theories of the case for the jury. In particular, he
suggested to the venire panel and argued in closing argument to the jury that
Sensie should have testified, though he did not raise any formal objection on this
issue for consideration by the trial court. He also repeatedly questioned whether
Sensie’s lip really had a laceration, given that any laceration was obscured by
blood, and whether the blood was actually blood, as opposed to ketchup or some
other “red pigment.” Finally, he attempted to develop a theme that Irhirhi and
Sensie were romantically involved, but were not living together. Although
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cohabitation is not an element of the offense with which Irhirhi was charged,
Frazier had testified that Sensie had identified her assailant as “her present, live-in
boyfriend.” See TEX. PENAL CODE ANN. § 22.01(a)–(b) (West 2015) (defining
assault on person in dating relationship); TEX. FAM. CODE ANN. § 71.0021
(defining “dating violence” without requiring cohabitation). Counsel apparently
hoped to contradict this testimony and thus to undermine Frazier’s credibility with
respect to his interview of Sensie.
Irhirhi’s counsel did not object or make any motions regarding Irhirhi’s
rights under the Confrontation Clause of the Sixth Amendment to the United States
Constitution or hearsay testimony by Deputy Frazier, though he did raise numerous
other objections during the course of the trial and related proceedings. For
example, he objected to the introduction of Sensie’s driver’s license photo, arguing
that the entire license should be shown, and a photo of the back of Sensie’s home,
arguing that the photo was irrelevant. He also objected to the booking photo of
Irhirhi on the grounds that he did not have previous knowledge of that photo,
though he had not filed any discovery motions before trial. He further objected on
unspecified grounds when the State asked Irhirhi, on cross-examination, whether
Irhirhi was claiming that Frazier had given false testimony.
After the State had presented its case in chief, Irhirhi moved for a directed
verdict, citing two reasons. First, his counsel argued as follows:
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Generally because first of all—I will like to cross-examine somebody,
but I don’t have the complaining witness to cross-examine. That’s
one [reason]. In other words, the State has not met its burden as far as
producing the witness is concerned.
Second, counsel argued that the State had “failed to connect [Irhirhi] to the
incident” and had introduced no evidence of a domestic relationship or an assault.
The trial court overruled the motion.
The jury convicted Irhirhi of assault on a family member, a class A
misdemeanor. Irhirhi elected to have punishment assessed by the trial court, which
sentenced him to one year’s confinement in the Harris County jail, suspended for
eighteen months, and placed Irhirhi under community supervision. He now
appeals.
Discussion
I. Confrontation Clause
In his first issue, Irhirhi argues that the trial court’s admission of hearsay in
Frazier’s testimony violated Irhirhi’s right to confront witnesses against him under
the Sixth Amendment to the United States Constitution and Article 1, Section 10 of
the Texas Constitution. He also argues that the admission of Frazier’s testimony
was improper under Section 1.051 of the Texas Code of Criminal Procedure.
In general, an appellant must preserve error before he can complain of it on
appeal. TEX. R. APP. P. 33.1. To preserve error, the record must show that the
appellant timely and clearly made the complaint to the trial court and the trial court
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either ruled on the request, objection, or motion, or refused to do so. Id. Certain
rights are considered either “absolute” or “not forfeitable” and cannot be waived.
Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). All other rights,
including some constitutional rights, can be waived by a party’s failure to preserve
error via contemporaneous objection. Id.
To complain of a Confrontation Clause objection on appeal, a party must
object in the trial court to the ruling disallowing that testimony. Wright v. State, 28
S.W.3d 526, 536 (Tex. Crim. App. 2000). Neither a relevance objection nor a
hearsay objection is sufficient to preserve a Confrontation Clause challenge. See
Reyna v. State, 168 S.W.3d 173, 179 & n.29 (Tex. Crim. App. 2005) (holding that
hearsay argument for admission of evidence did not preserve Confrontation Clause
challenge on appeal; argument could have referred either to Rules of Evidence or
Confrontation Clause, but failed to identify Confrontation Clause as basis and thus
did not put trial court on notice of issue) (citing Paredes v. State, 129 S.W.3d 530,
535 (Tex. Crim. App. 2004)).
Irhirhi concedes that his trial counsel did not make a Confrontation Clause
objection or even a hearsay objection. Having reviewed the record, we agree that
there is no objection in the record sufficient to put the trial court on notice of any
Confrontation Clause complaint. We therefore hold that Irhirhi has waived that
issue for appeal. See id.
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Similarly, Irhirhi has waived his arguments regarding the Texas Constitution
and Code of Criminal Procedure. As with the federal constitution, such arguments
can be waived. Hall v. State, No. 01-05-00919-CR, 2006 WL 1653828, at *2 (Tex.
App.—Houston [1st Dist.] June 15, 2006, pet. ref’d) (mem. op., not designated for
publication); see also Loya v. State, No. 08-12-00315-CR, 2014 WL 4536546, at
*2 (Tex. App.—El Paso Sept. 12, 2014, no pet.) (not designated for publication)
(citing Lagrone v. State, 942 S.W.2d 602, 612 (Tex. Crim. App. 1997) (refusing to
address arguments under state constitution when appellant failed to show that
Texas Constitution provides broader protection than United States Constitution)).
Moreover, if an appellant asserts a violation of his rights to confront witnesses
under both the state and federal constitutions, he must provide “separate
substantive analysis showing that Article I, Section 10 of the Texas Constitution
affords greater protection than the United States Constitution.” Loya, 2014 WL
4536546, at *2. Because Irhirhi neither preserved his arguments regarding the
Texas Constitution or Code of Criminal Procedure in the trial court nor briefed
them on appeal, he has waived them. See TEX. R. APP. P. 33.1, 38.1(i); Loya, 2014
WL 4536546, at *2; Hall, 2006 WL 1653828, at *2.
Accordingly, we hold that Irhirhi has waived his first issue for appeal.
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II. Ineffective assistance of counsel
In his second issue, Irhirhi argues that his trial court counsel rendered
ineffective assistance by failing to raise a Confrontation Clause objection in the
trial court. He therefore asks that we reverse his conviction and remand for a new
trial.
Irhirhi identifies several aspects of his trial which he contends demonstrate
ineffective assistance. Most significantly, he argues that a lawyer’s failure to
object to “clear hearsay and a clear violation of the Confrontation Clause”
constitutes “ineffective assistance for which there can be no trial strategy.”
According to Irhirhi, trial counsel failed to object not “because he strategically
chose not to” but “because he didn’t know he was supposed to” and did not know
the relevant law. He also contends that he was “given no defense,” “[v]ery little
cross examination was done,” “[m]inimal objections were made,” counsel’s
closing argument was “weak” and of short duration, closing argument was
inconsistent with Irhirhi’s own testimony, and “the motion for directed verdict was
made using an incorrect legal standard.” He further attacks alleged defects in the
form and substance of the trial court’s questioning, such as points in the record
when both trial counsel and Irhirhi attempted to talk at the same time.
Irhirhi’s trial counsel pursued a strategy of attempting to create a reasonable
doubt about various elements of the crime of assault on a family member. He
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focused much of his questioning of Deputy Frazier, as well as much of his
argument to the jury, on creating doubt as to whether Irhirhi hit Sensie.
Specifically, he questioned whether Sensie had a cut in her mouth and attempted to
raise doubt as to the nature of the red fluid in Sensie’s mouth and on the floor of
her home. He also highlighted Sensie’s refusal of medical treatment, suggesting
that she may not have been injured at all. In line with this theory of the case,
counsel called Irhirhi himself, who testified that he did not engage in any physical
violence against Sensie on the day in question. Counsel highlighted Sensie’s
absence for both the venire panel and the empaneled jury, suggesting that
testimony by Irhirhi, as the only witness who was present at the time of the alleged
assault, should be given more credibility than Frazier’s testimony.
In concluding his argument to the jury, trial counsel asked,
Why is the complaining witness not here? She knew enough to call to
make the 911 call where she was asked if she needed medical
attention. She said, “No, I just want cops.” She called twice. She
wrote “this” statement, and she’s not here. Why is she not here? Why
couldn’t the State get her here? That should really, really, really
bother you. Could there be motive? I don’t know. I will let you
make that decision.
He then called attention to additional instances of what he characterized as gaps in
the evidence. In particular, he suggested that the jury had not seen the laceration
on Sensie’s lip or blood, although the jury did see pictures of Sensie’s lip taken by
Frazier during his investigation. Counsel also argued, “We have not seen . . . the
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tissue paper or napkins which she was supposedly using” to staunch the flow of
blood. He concluded by arguing that the jury had “no other way to rule” than to
acquit Irhirhi due to a lack of evidence.
To prevail on a claim of ineffective assistance of counsel, a defendant must
show that (1) his counsel’s performance was deficient, and (2) a reasonable
probability exists that the result of the proceeding would have been different but
for counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex.
Crim. App. 2005). A defendant has the burden to establish both prongs by a
preponderance of the evidence; a failure to show either defeats his ineffectiveness
claim. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)
(rejecting ineffective assistance challenge for failure to show prejudice without
first addressing attorney’s performance). The record must firmly support a claim
of ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
To meet Strickland’s second prong, Irhirhi must show a reasonable
probability that the result of the trial would have been different but for his
counsel’s allegedly deficient performance. Strickland, 466 U.S. at 687, 104 S. Ct.
at 2064; Andrews, 159 S.W.3d at 101–02. He has not done so. First of all, Officer
Frazier overheard Sensie describing to someone else on the phone that “he
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punched me in the lip.” Statements made to a third party do not implicate the
Confrontation Clause because they are neither testimonial in nature nor have the
primary purpose of seeking criminal prosecution. See Davis v. Washington, 547
U.S. 813, 822, 126 S. Ct. 2266, 2273–74 (2006).
Even if trial counsel had objected to Sensie’s hearsay statements based on
the Confrontation Clause and the trial court sustained that objection as to some of
the statements, the jury would nonetheless have heard the recorded 911 call that
Sensie made describing the altercation in her effort to seek police assistance. See
Davis, 547 U.S. at 828, 126 S. Ct. at 2277 (holding that Confrontation Clause
objection to 911 call made to request police assistance to meet an emergency was
properly overruled). On the call, Sensie identified Irhirhi as her boyfriend by name
and reported that he had punched her in her face and her mouth was bleeding. The
jury would have heard the officer’s physical observations of Sensie’s appearance
and demeanor, including the blood on her face and chin and the bedroom floor, and
the statements that Irhirhi made conceding that the parties had argued but denying
the assault. The jury also would have seen photographs of Sensie bleeding from
her lip on the night of the assault. Irhirhi has not demonstrated that objections
based on the Confrontation Clause would have overcome the other evidence
supporting the conviction.
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In his appellate brief, Irhirhi does not expressly challenge the admission of
the 911 call as violative of the Confrontation Clause. Relying on Vinson v. State,
he contends that the admission of Sensie’s answers to the Officer Frazier’s
interrogation were testimonial answers given as part of his investigation; thus, he
contends, they were admitted in violation of the Confrontation Clause. See 252
S.W.3d 336, 341 (Tex. Crim. App. 2008). In Vinson, the Court of Criminal
Appeals held that statements obtained from the complaining witnesses of a detailed
account of the assault while the defendant was handcuffed in a police car were
testimonial in nature and therefore inadmissible under the Confrontation Clause in
the absence of the complaining witness’s availability to testify at trial and be cross-
examined. Id. at 341–42. In Vinson, however, the Court noted that the violative
statements were not a response to an ongoing emergency and not testimonial in
nature; it allowed identification made in the 911 call as responsive to an ongoing
emergency. Because Irhirhi does not challenge the admission of the 911 call, and
the officer’s testimony is cumulative of Sensie’s statements in that call, we hold
that Irhirhi has not established that the outcome of the trial would have been
different had a Confrontation Clause objection been made and sustained by the
trial court.
Irhirhi does not brief his remaining contentions regarding ineffective
assistance, and they lack support in the record. While Irhirhi contends that trial
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counsel’s cross-examination, closing argument, and motion for directed verdict
were deficient, he does not indicate what fell below reasonably professional
assistance and what affect any such error had on the outcome of the trial. We hold
that he has failed to satisfy either prong of Strickland with respect to these
complaints.
Because Irhirhi has not demonstrated the existence of a reasonable
probability that the verdict would have been different absent any ineffective
assistance by counsel, we overrule his second issue.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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