Lopez, Leroy Parra v. State ( 2002 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LEROY PARRA LOPEZ,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

' ' ' ' '  '

No. 08-00-00536-CR Appeal from 358th District Court of Ector County, Texas (TC# D-27,881)

O P I N I O N

Leroy Parra Lopez brings three issues on appeal of his conviction for aggravated assault with a deadly weapon.  We affirm.

Facts

On May 14, 1999, Leroy Parra Lopez and his girlfriend, Ilda Sue Ceballos Lopez (Ceballos),^[1] went to a barbecue.  Both drank at the barbecue.  Ceballos left the barbecue and returned to their home. That evening when Lopez returned, the couple began to argue.  The altercation became physical and Lopez, who was using crutches due to a prior injury, struck Ceballos on the back of the head with a crutch.

Nanni Guerrero, Ceballos=s daughter, was at home when Lopez returned to the house.  She came out of her bedroom when Lopez and her mother began fighting, and she witnessed some of the fighting.  She went to the neighbor=s house to use their telephone to call the police.

Officer Michael Liverett of the Odessa Police Department responded to the disturbance call.  Upon arriving at the scene, he spoke to Ceballos who told him that Lopez had injured her.  A call was put out for Lopez, who had left the scene.  Lopez was found approximately five or six blocks away from the house.

As a result of the blow to her head, Ceballos experienced an egg-sized swelling behind her ear.  She suffered with the injuries for approximately a month and a half before the swelling broke open and drained.

Lopez was indicted on December 13, 1999 for the assault.  The indictment alleged that

on or about the 14th day of May, 1999, [he] did then and there, intentionally or knowingly cause bodily injury to ILDA SUE LOPEZ by hitting her on the head with a crutch and the Defendant did use or exhibit a deadly weapon during the commission of the assault, to wit:  a crutch, that in the manner of its use or intended use was capable of causing death or serious bodily injury.

The indictment also contained two enhancement paragraphs:  one for a felony conviction of forgery and one for a felony conviction of robbery.

Lopez was found guilty of the aggravated assault after a bench trial on October 31, 2000.  He pleaded true to the enhancement paragraphs, and punishment was assessed at twenty-five years.

Legal and Factual Sufficiency

In his Issues One and Two, Lopez urges that the evidence was legally and factually insufficient to support a finding that his crutch was used in a manner that rendered it capable of causing serious bodily injury or death. A person commits aggravated assault if he or she intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault.  Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon 1994 & Supp. 2002); Tex. Penal Code Ann. ' 22.02(a)(2) (Vernon 1994).  A deadly weapon, in turn, may be Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ Tex. Penal Code Ann. ' 1.07(a)(17)(B) (Vernon 1994).

We think Lopez misconstrues the test for determining whether the crutch was a deadly weapon.  Citing Bailey v. State, 38 S.W.3d 157 (Tex. Crim. App. 2001), he states, AThe Court of Criminal Appeals stated that the issue was not whether the actor possessed the specific intent to cause serious bodily injury or death to the victim but whether the actor intended to use the implement of assault in such a manner as to cause serious injury.@ Lopez then contends that there was no evidence that the intent behind the use of the crutch was deadly.  If his intent had been deadly, he would have continued the assault on Ceballos and he would have targeted a more vulnerable part of her head.  Lopez then argues that, in his injured condition at the time, Ait would have been virtually impossible   . . . to be able to brandish the crutch in such a manner as to intend serious bodily injury     . . . .@

Lopez=s interpretation seems closer to the one that Bailey attacks, rather than the one it upholds.  In Bailey, the Court of Criminal Appeals quoted its holding in McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000).  Referring to Tex. Penal Code Ann. ' 1.07(a)(17)(B), the Bailey Court stated:

[T]he statute provides that a deadly weapon is >anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.=  ' 1.07(a)(17)(B) (emphasis added).  The provision=s plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury.

38 S.W.3d at 158-59. As the Court noted in McCain, AThe placement of the word >capable= in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.@ 22 S.W.3d at 503.  Thus, what is important to the analysis is not that Lopez intended to cause death or serious bodily injury, but that he used the crutch in such a way that it was capable of causing death or serious bodily injury.

Issue One

On review for legal sufficiency, we view evidence in the light most favorable to the verdict.  A rational trier of fact must have been able to find the elements of the offense beyond a reasonable doubt.  Teer v. State, 923 S.W.2d 11, 17 (Tex. Crim. App. 1996) (adopting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)).  All of the evidence and any reasonable inferences produced therefrom must be reviewed.  Id. The reviewing court=s only function is to ensure the rationality of the fact finder.  Id.  As Williams v. State, 827 S.W.2d 614 (Tex. App.--Houston [1st Dist.] 1992, pet. ref=d), noted, AIf there is evidence that establishes guilt, beyond a reasonable doubt, and if the trier of fact believes that evidence, [the reviewing court] is not in a position to reverse the judgment on sufficiency of evidence grounds.@ Id. at 616.  The fact finder=s conclusions are given great deference, because he is better able to make a determination of credibility, since he has the distinct advantage of viewing the evidence live and seeing the demeanor and expressions of the witnesses. Teer, 923 S.W.2d at 19.

Although the evidence is that Lopez only struck Ceballos once, we think it supports a finding that he used the crutch in a way capable of producing a serious injury or death.  According to Ceballos, the two were arguing and she asked Lopez to leave, but he would not.   As Ceballos turned away from Lopez, he struck her once on the back of her head with his crutch, knocking her to the ground.  Not only was the blow hard enough to force Ceballos to the ground, but it caused an egg-sized swelling on her head, which lasted for weeks after the incident.  The blow was forceful enough that Ceballos suffered a bruise or contusion, under which there was a hematoma or collection of blood, and caused her to be immediately Adazed@ and to be in pain for weeks afterward.

Dr. Robert Garcia, Ceballos=s physician, testified that if the injury had occurred on a more vulnerable part of the head, it could potentially have killed her.^[2]  This evidence is sufficient to meet the legal sufficiency challenge.  See Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002) (AWith testimony that a BB gun is capable of causing serious bodily injury, it is reasonable for a jury to make a deadly weapon finding.@).  Dr. Garcia also stated that he had seen a case where serious bodily injury had been caused when a child was struck in the head by a crutch. Even though, as Dr. Garcia testified, the injury that Ceballos received was not itself life-threatening, Lopez=s use of the crutch could have caused such a life-threatening injury.  Thus, viewed in the light most favorable to the verdict, we believe the evidence is legally sufficient to support the finding that the crutch was a deadly weapon.  We overrule Issue One.

Issue Two

We turn next to a review for factual sufficiency.  Under a factual sufficiency standard of review, the reviewing court analyzes all of the evidence before it.  Unlike with the legal sufficiency standard, the evidence is not viewed in the light most favorable to the verdict.  Rather, the evidence is assumed to be legally sufficient and is judged as a whole.  Clewis v. State, 922 S.W.2d 126, 128, 134 (Tex. Crim. App. 1996). The verdict will only be reversed if it was clearly wrong and unjust.  Id. at 129 (adopting the standard of review set forth in Stone v. State, 823 S.W.2d 375 (Tex. App.--Austin 1992, pet. ref=d, untimely filed)).  It is not enough that the reviewing court feels that a different result would be more reasonable.  Id. at 135.  If there is even some evidence to support the verdict, the verdict is usually conclusive. The reviewing court=s power is only to prevent manifest injustice.  Id.

Although Ceballos did not receive serious bodily injury, nevertheless she was injured, and, as discussed above, the evidence supports a finding that Lopez used his crutch in a way capable of causing serious bodily injury. There was no evidence controverting Dr. Garcia=s assertion that the blow from the crutch could have caused serious bodily injury. Ceballos testified that she had been struck from behind by the crutch.  Officer Liverett testified that Ceballos told him she had been struck by a crutch. And, as Dr. Garcia testified, the injury was consistent with the way in which it was described to have been received.   In support of Issue Two, Lopez cites his diminished physical capacity at the time of the incident, Dr. Garcia=s testimony that Ceballos was not seriously injured, Officer Liverett=s testimony that Ceballos was drunk, confrontational, and combative, and his own testimony regarding the fact that Ceballos had started the altercation and that he had not known she was injured. In addition, he refers to the lack of credibility of Guerrero and Ceballos and the inconsistencies between stories.  Having reviewed all the evidence through the proper prism, we believe the evidence is factually sufficient to support the deadly weapon finding.  We overrule Issue Two.

Issue Three

In the third issue, Lopez argues that his trial counsel was ineffective because he failed to call fact and character witnesses that could have corroborated Lopez=s defense.

Under an ineffective assistance of counsel claim, Lopez must allege with specificity the acts or omissions alleged to not have been the result of reasonable professional judgment.  The acts are then examined under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984).  Hernandez v. State, 726 S.W.2d 53, 54, 57 (Tex. Crim. App. 1986) (adopting the tests of Strickland); Hernandez v. State, 988 S.W.2d 770, 770-72 (Tex. Crim. App. 1999) (applying Strickland to either the guilt-innocence phase or punishment phase of trial).  It is Lopez=s burden to establish that counsel=s performance fell below an objective standard of reasonableness and that it is reasonably probable that the proceeding would have resulted otherwise but for counsel=s performance, Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001) (citing Strickland, 466 U.S. at 693-94), and this must be proven by a preponderance of the evidence, McFarland v. State, 845 S.W.2d 824, 842-43 (Tex. Crim. App. 1992).  As the Court of Criminal Appeals noted in Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001):

>It is not enough for the [applicant] to show that the errors had some conceivable effect on the outcome of the proceeding.=  Rather, applicant must show there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. >A reasonable probability is a probability sufficient to undermine confidence in the outcome.=

Id. at 629 (citations omitted) (citing Strickland, 466 U.S. at 693-94).

A review of counsel=s representation is highly deferential.  Mallett, 65 S.W.3d at 63. Challenged conduct will not constitute deficient performance unless it was so outrageous that another, competent attorney would not have engaged in it.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).  In the absence of evidence of counsel=s reasoning for the conduct, we assume the existence of a strategic motivation if any may be imagined.  Id. at 440.

Lopez=s main argument here is that his counsel was ineffective because he failed to call witnesses for his defense.  Regarding the failure to call witnesses, Lopez states, ASurely counsel=s failure to secure the appearance of and call the witnesses known to him was inaction which amounted to constitutionally ineffective assistance of counsel.@ He argues that six potential witnesses would each have been available to testify about his credibility and the fact that he is not violent.  One witness would have testified about Ceballos=s lack of credibility. Another would have testified that Ceballos had been confrontational on the evening of the incident.  And three witnesses would have corroborated his testimony that he was physically incapacitated at the time of the incident and that he was incapable of using the crutch as Ceballos and Guerrero testified.  Thus, Lopez alleges, if the witnesses had been called, it would have been found that the assault was neither intentional nor made with deadly intent.

First, as we have previously discussed with regard to Issues One and Two, it is inapposite whether Lopez possessed deadly intent.  As we have previously noted, a person commits an offense of aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault.  Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon 1994 & Supp. 2002); Tex. Penal Code Ann. ' 22.02(a)(2) (Vernon 1994).

In addition, as the court in Rodd v. State, 886 S.W.2d 381 (Tex. App.--Houston [1st Dist.] 1994, pet. ref=d) stated, A[A]n attorney is ineffective if the failure to seek out and interview potential witnesses precludes the accused from advancing a viable defense.@ Id. at 384.  In the present case, Lopez was still able to present his defense that he did not intend to cause serious bodily injury and that his actions were in self-defense.  The affidavits Lopez submitted during the hearing on the motion for new trial reflect that most of the missing testimony would have pertained to Lopez=s credibility or that of Ceballos.  Only the testimony of Sherry Ann Fabila would have depicted events on the day in question--and Fabila=s testimony would only have been with respect to events that occurred earlier in the day.  Therefore, trial counsel=s failure to call the witnesses did not preclude Lopez from advancing his defense. Cf. Rodd, 886 S.W.2d at 384 (holding that where potential witnesses would have been character witnesses only, trial counsel=s failure to call them did not preclude appellant from advancing viable defense that he did not commit the offense and that he was physically unable to commit the offense).  And we cannot say that Lopez has shown a reasonable probability that the outcome would have been different if the witnesses had been brought forth.

Furthermore, an ineffective assistance claim is established by a review of the totality of representation and not through isolated events.  Smith v. State, 676 S.W.2d 379, 385 (Tex. Crim. App. 1984).

During the trial, counsel cross-examined each of the witnesses.  He asked Ceballos if she had been drunk on the night in question and if she had started the fight that resulted in the injury.  He called Ceballos=s credibility into question by contrasting her recollections from the night with those of the officer on the scene.  As a result of counsel=s cross-examination, Ceballos stated that Lopez was using both crutches at the time of the incident, a statement supporting Lopez=s assertion of his physical incapacity at the time of the incident. Counsel also cross-examined Guerrero, highlighting the inconsistencies with the various stories she had given. He cross-examined Dr. Garcia regarding the seriousness of Ceballos=s injury.  He questioned Officer Liverett regarding Ceballos=s possible intoxication on the night in question and her lack of cooperation with the authorities after they responded to the call.  Then, he questioned Officer Liverett regarding Lopez=s inability to get away from the scene. 

Counsel also elicited testimony from Lopez.  Lopez was questioned about his good conduct following his prior troubles with the law.  And Lopez was questioned about his injuries and his inability to work as a result. Lopez was allowed to give his version of events; specifically, Lopez was allowed to testify that Ceballos had started the physical altercation and that he had merely attempted to ward off her attack.  Lopez also stated that he did not hit Ceballos on the back of her head.

During his closing argument, counsel for Lopez highlighted the inconsistencies of the different stories.  He asserted that the injury was not a serious injury and that the crutch was not a deadly weapon.

Lopez=s counsel performed vigorous cross-examination of witnesses, highlighting inconsistencies in stories and casting doubt on the credibility of witnesses. He was able to present Lopez=s defense.  Therefore, we believe that the totality of the events shows that counsel provided Lopez adequate representation during trial.  Accordingly, we overrule Lopez=s third issue.

Conclusion

For the foregoing reasons, we affirm.

SUSAN LARSEN, Justice

July 18, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

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^[1]For purposes of clarity, we hereafter refer to Ms. Lopez as Ms. Ceballos.  Ceballos is Ms. Lopez=s maiden name.  She previously took Mr. Lopez=s name, although the two were never married, and she has continued to use his name over the years.  In addition, appellant refers to Ms. Lopez by her maiden name.

^[2]We note that Lopez states the same in his brief: ADr. Garcia did state a more serious condition might have resulted if the blow had occurred nearer the temple.@