Curtis, Christopher v. State ( 2003 )

Opinion issued October 23, 2003

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-02-00492-CR

          01-02-00493-CR

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CHRISTOPHER CURTIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause Nos. 893021 and 893022

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MEMORANDUM OPINION

          A jury convicted appellant, Christopher Curtis, of murder and aggravated assault, assessing punishment at 70 years’ confinement in the murder case and 30 years’ confinement in the aggravated assault case. The jury also imposed a $5,000 fine for each offense. On appeal, appellant contends (1) he received ineffective assistance of counsel; (2) the trial court erred in failing to give the jury proper burden of proof and limiting instructions concerning extraneous offense evidence; and (3) the trial court erred in admitting hearsay evidence.

          We affirm.

FACTS

Appellant conceived a plan to kill Sheldon Vanderpool, a rival drug dealer. To

this end, appellant solicited the help of Christopher Adams, offering to forgive a drug debt Adams owed appellant if Adams killed Vanderpool. Adams acquiesced. Appellant therefore provided Adams with a Tech 9 semi-automatic assault pistol and ammunition with which to kill Vanderpool.

          On October 30, 2001, Vanderpool and several other people were in room 101 of the Dollar Inn in Houston, Texas. Knowing Vanderpool would be in the room, Adams went to the Dollar Inn, kicked in the door of room 101, and opened fire with the Tech 9 assault pistol. Vanderpool and another of the room’s occupants, Elija White, suffered gunshot wounds. White died of his wounds.INEFFECTIVE ASSISTANCE OF COUNSEL

          In his first point of error, appellant asserts that his trial counsel rendered ineffective assistance of counsel by (1) failing to object to extraneous act evidence under Texas Rule of Evidence 404(b), (2) failing to object to extraneous act evidence under Texas Rule of Evidence 403, (3) failing to request burden of proof and limiting instructions concerning extraneous act evidence, (4) failing to have a command of the law, (5) failing to object to hearsay, (6) failing to object to evidence which violated appellant’s right to confront and cross-examine witnesses, (7) failing to object to non-responsive answers, and (8) failing to object to improper voir dire.

          To determine whether a defendant has been denied effective assistance of counsel, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the defendant must demonstrate that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688; Howland v. State, 966 S.W.2d 98, 104 (Tex. App.—Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999). Second, a defendant must establish that trial counsel’s performance was so prejudicial that it deprived him of a fair trial. Howland, 966 S.W.2d at 104. A defendant has the burden to establish both of these prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Davis v. State, 830 S.W.2d 762, 765 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d).

          It is presumed that trial counsel’s strategy was sound and that the representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant has overcome these presumptions, we are limited to the facts of the case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble, 916 S.W.2d at 93. Therefore, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.  

          Appellant does not identify acts or omissions that were so obviously lacking in professional judgement that we need not inquire as to their motivation or strategic significance. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). Because the record on direct appeal leaves us with little evidence concerning trial counsel’s trial strategy, we do not know what motivated counsel’s conduct. We will not speculate as to what trial counsel’s trial strategy was. Jackson, 877 S.W.2d at 771; Gamble, 916 S.W.2d at 93. Because of the lack of evidence in the record indicating trial counsel’s trial strategy, we cannot find trial counsel’s performance was deficient.  

          Appellant’s first point of error is overruled.

EXTRANEOUS ACT EVIDENCE

In his second point of error, appellant asserts that the trial court erred in failing

to instruct the jury that it was required to limit its consideration of extraneous acts to the limited purpose for which those acts were admitted. Similarly, appellant asserts that the trial court erred by failing to instruct the jury that an extraneous act could not to be considered unless it found beyond a reasonable doubt that appellant was the person who committed the act.

          Where evidence is admissible for a limited purpose and the trial court admits it without limitation, the party opposing the evidence has the burden of requesting a limiting instruction. Tex. R. Evid. 105(a); Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001). It is also incumbent upon a party to request an instruction that the jury is not to consider extraneous acts unless it believes beyond a reasonable doubt that the defendant committed the extraneous acts. George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994).  In the instant case, appellant requested neither instruction. We conclude that the trial court did not err in failing to sua sponte give the complained-of instructions.

          Appellant’s second point of error is overruled.  

HEARSAY EVIDENCE

          In his third point of error, appellant asserts that the trial court erred in admitting hearsay evidence. Specifically, appellant claims that (1) the trial court committed fundamental error by allowing too much hearsay evidence to be introduced and (2) the trial court committed reversible error by overruling appellant’s objections to hearsay testimony.

A.      Fundamental Error

          Regarding his fundamental error claim, appellant argues the following:

Furthermore, the trial court’s failure to stop the flood of hearsay in this case rose to the level of fundamental error. At some point, when enough inadmissable hearsay is introduced into evidence without objection, the trial court’s failure to put a stop to it rises to the level of plain or fundamental error for purposes of Tex. R. Evid. 103(d). At some point, the trial court has a duty to intervene to ensure that a defendant has a fair trial. The instant case was such a case.

This is the extent of appellant’s argument. Appellant provides no substantive analysis or authority for his argument. Appellant’s brief is not sufficiently developed because it provides no argument or authority to show why the actions of the trial court were erroneous. Tex. R. Evid. 38.1(h); Foster v. State, 101 S.W.3d 490, 499 (Tex. App.—Houston [1st Dist.] 2002, no pet.). We hold this argument is inadequately briefed, and, as such, is waived. Foster, 101 S.W.3d at 499. 

B.      Improperly Overruled Hearsay Objections

          Appellant argues that “on the rare occasions when trial counsel made a proper hearsay objection, the trial court’s ruling was wrong.” Further, appellant asserts that the court’s erroneous rulings on the hearsay objections had a detrimental and injurious effect on appellant’s substantial rights.

          Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). In order for hearsay to be admissible it must fit into an exception provided by a statute or the Rules of Evidence. Tex. R. Evid. 802.

          To complain on appeal that the trial court improperly admitted hearsay testimony, an appellant must show that a timely specific objection was made on the trial level. Tex. R. App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Moreover, when hearsay is erroneously admitted over an objection, the error is harmless where the same evidence is admitted elsewhere in the record without objection. Livingston v. State, 739 S.W.2d 311, 333 (Tex. Crim. App. 1987).

          Appellant gives a number of specific examples of testimony that he claims constitutes hearsay. However, as to testimony allowed into evidence over an objection to hearsay, appellant only directs our attention to the following:

[Prosecutor]:Were you able to ascertain as to whether or not the [appellant] and the person you were interviewing, Christopher Adams, a.k.a. C Murder, were friends?

[Chisholm ]:Yes.

[Prosecutor]:Where had they been hanging out?

[Chisholm]:They had been hanging out at the Dollar Inn.

[Trial Counsel]:Objection, Your Honor, he’s referring to hearsay.

[Trial Court]:All right. That’s overruled as to that question.

          . . . .  

          [Prosecutor]:          Were you able to ascertain in the course of your investigation as to whether or not [appellant] was resentful of this person you identified in the interview as [Vanderpool]?

[Trial Counsel]:Objection, Your Honor. Calls for speculation and it’s also asking for—soliciting hearsay.

[Trial Court]:That’s sustained.

[Prosecutor]:Were you able to verify that a feud existed between somebody you came to know as [Appellant] and somebody you came to know as [Vanderpool]?

[Trial Counsel]:Same objection, Your Honor.

[Trial Court]:That’s overruled.

          [Chisholm]:           Yes, I was.

          Although Officer Chisholm’s testimony was arguably hearsay, we find that the same information was introduced into the record later in the trial without objection. Arleda Liggins, a witness for the State who knew Adams and was with Adams on the night of the murder, testified that appellant and Adams were friends and were often found at the Dollar Inn. Similarly, Terrance Lindsey, a frequent resident of the Dollar Inn who purchased drugs from appellant, testified that appellant and Vanderpool were “at war.”

          We find that any error in admitting Officer Chisholm’s hearsay testimony was cured when the same evidence was introduced without objection elsewhere in the trial.

          Appellant’s third point of error is overruled.

CONCLUSION

          We affirm the judgments of the trial court.

                                                             Laura Carter Higley

                                                             Justice

Panel consists of Justices Hedges, Nuchia, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).