Horner, Glen Dale v. State ( 2003 )

Affirmed and Memorandum Opinion filed June 12, 2003

Affirmed and Memorandum Opinion filed June 12, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00184-CR

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GLEN DALE HORNER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. 10480

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M E M O R A N D U M   O P I N I O N

            Glen Dale Horner appeals two convictions for attempted capital murder and burglary of a habitation^[1] (the “offenses”) on the grounds that: (1) he was denied effective assistance of counsel; and (2) the evidence was legally and factually insufficient to support the conviction.  We affirm.

                                                          Ineffective Assistance

                                                             Standard of Review

            In order to establish ineffective assistance of counsel, an appellant must show that his counsel’s performance was: (1) deficient, i.e., it fell below an objective standard of reasonableness; and (2) prejudicial, i.e., there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Williams v. Taylor, 529 U.S. 362, 390-91 (2000); Rylander v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003). Ineffective assistance claims must be affirmatively demonstrated in the record.  Bone v. State, 77 S.W.2d 828, 835 (Tex. Crim. App. 2002).  To overcome the presumption that a challenged action or omission might be considered sound trial strategy, the record must ordinarily reflect the reasons why counsel took or failed to take the action. See Rylander, 101 S.W.3d at 110-11.

                                                               Guilty Plea Offer

            Appellant’s first issue contends that his trial counsel was ineffective in failing to inform him of an oral guilty plea offer made by the State before trial.^[2]  However, appellant fails to sustain this contention in two respects.  First, he cites no sworn testimony or other actual evidence to support it, but only a pre-trial discussion between prosecution and defense counsel and the trial court.  Second, the statements of counsel in that discussion were conflicting as to whether the alleged offer was ever made by the State.  Under these circumstances, appellant has failed to provide a record establishing the existence of any plea offer that was not communicated to him,^[3] and his first issue is overruled.

                                                             Federal Conviction

            Appellant’s second issue contends that his trial counsel was ineffective in failing to object to the admission into evidence of a federal indictment and judgment for interstate transportation of a motor vehicle (the “federal conviction”) because there is no evidence that appellant stole the vehicle, how he came into possession of it, or otherwise to show a nexus to this case.

            To establish ineffective assistance for failing to object to evidence, an appellant must establish that the evidence was inadmissible.  See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). There being no legal authority cited by appellant in support of this issue, we interpret his challenge to be based on a lack of relevance of the federal conviction to this case. However, as will be discussed with regard to appellant’s fifth point of error, concerning the sufficiency of the evidence, the theft of the vehicle that was the subject of the federal conviction was relevant to identifying appellant as the person who committed the offenses charged in this case.^[4]  Accordingly, his second issue is overruled.

                                                         Other Prior Convictions

            Appellant’s third issue argues that his trial counsel was ineffective in failing to seek redaction of the portion of the judgment from the federal conviction that showed two other previous convictions.  However, appellant cites no authority showing that he was entitled to any such redaction or any portion of the record reflecting that the jury ever actually requested or reviewed this exhibit or was otherwise informed of the two prior convictions reflected in it.^[5]  Therefore, appellant’s third issue establishes neither deficient performance nor prejudice based on his counsel’s failure to seek the redaction and is overruled.

                                                            Mitigating Evidence

            Appellant’s fourth issue contends that appellant’s trial counsel provided ineffective assistance of counsel by failing to investigate and present any mitigating punishment evidence.  However, appellant provides no record to show: (1) that his trial counsel failed to conduct such an investigation;^[6] (2) whether any mitigating evidence actually existed;^[7] or (3) if so, his counsel’s reasons for refraining from presenting it.^[8]  Therefore, his fourth issue fails to demonstrate ineffective assistance and is overruled.

                                                         Sufficiency of Evidence

            Appellant’s fifth issue asserts that the evidence was legally and factually insufficient to identify him as the person who committed the offenses.

                                                             Standard of Review

            In assessing the legal sufficiency of evidence to support a conviction, we consider all of the record evidence in the light most favorable to the jury’s verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of all of the elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The question is not whether a rational jury could have entertained a reasonable doubt of guilt, but whether it necessarily would have done so.  See Swearingen, 101 S.W.3d at 96.  In assessing factual sufficiency, we consider all of the evidence in a neutral light to determine whether the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof.  Id. at 97.

                                                              Sufficiency Review

            In this case, a masked intruder wearing gloves kicked in the door of the complainants’ house in the middle of the night, stabbed and cut one of the complainants, and then escaped.  In a vehicle not belonging to the complainants, but abandoned in their driveway that night, were found photos of appellant and a fingerprint from appellant. The complainants’ neighbor testified that he saw a person run from the complainants’ house to that vehicle, remove a container from it, and then run north across the street toward a wooded area. A road atlas found in that wooded area also had a fingerprint from appellant, and a mask and bloody glove were found a short distance north of that location.  In addition, a pickup truck was stolen that night from a location within a mile and a half northwest of the complainants’ house.  Before the trial of this case, appellant was convicted in the federal conviction of interstate transportation of that vehicle on the same date as the offenses were committed.

            The foregoing evidence: (1) connects the intruder to the automobile in the complainants’ driveway and to an escape route through the woods to the north; and (2) connects appellant to the automobile in the complainants’ driveway, the road atlas found along the intruder’s escape route, and a truck that was stolen somewhat farther away in the same general direction the same night. This evidence is legally sufficient to prove that appellant was the intruder, and, there being no evidence cited by appellant to the contrary, is also factually sufficient to do so. Accordingly, appellant’s fifth issue is overruled, and the judgment of the trial court is affirmed.

                                                                        /s/        Richard H. Edelman

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed June 12, 2003.

Panel consists of Chief Justice Brister, and Justices Fowler and Edelman.

Do Not Publish — Tex. R. App. P. 47.2(b).

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^[1]           In a single trial, appellant was convicted by a jury of both offenses and sentenced by the trial court to 99 years confinement for each offense.

^[2]           See, e.g., Ex parte Lemke, 13 S.W.3d 791, 795 (Tex. Crim. App. 2000) (stating that the failure of defense counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of professional reasonableness).

^[3]           See Bone, 77 S.W.3d at 835.

^[4]           See Tex. R. Evid. 404(b) (extraneous offense evidence may be admissible for the purpose of showing  identity).

^[5]           See Tex. Code Crim. Proc. Ann. art. 36.25 (Vernon 1981) (there shall be furnished to the jury upon its request any exhibits admitted as evidence in the case); Davis v. State, 642 S.W.2d 510, 513-14 (Tex. Crim. App. 1982) (overruling a similar ineffectiveness claim on the ground that the record did not reflect that the jury ever requested or received the judgment of conviction from which the prior conviction had not been deleted).

^[6]           See Bone, 77 S.W.3d at 835.

^[7]           See id. (overruling similar ineffectiveness claim for lack of a record showing that any mitigating evidence existed).

^[8]           See Rylander, 101 S.W.3d at 110-11.