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Jackson, Anthony Lynn v. State ( 2007 )


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  • Affirmed and Memorandum Opinion filed March 1, 2007

    Affirmed and Memorandum Opinion filed March 1, 2007.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-05-00329-CR

    NO. 14-05-00330-CR

    ____________

     

    ANTHONY LYNN JACKSON, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 228th District Court

    Harris County, Texas

    Trial Court Cause Nos. 984150 & 1010800

     

      

     

    M E M O R A N D U M   O P I N I O N

    Appellant Anthony Lynn Jackson was charged with arson and murder.  He pleaded guilty to the arson charge and a jury convicted him of murder.  On appeal, Jackson challenges the effectiveness of his counsel at every stage of the proceedings and argues that the trial court violated his right to compulsory process by accepting and entering judgment on his plea of guilty to the arson charge.  He also contends the evidence is legally and factually insufficient to support a finding that he strangled or smothered Priscilla Viehland or otherwise caused her death.

    As to Jackson=s issues relating to the arson charge, we conclude that Jackson failed to establish  he was denied his right to effective assistance of counsel or compulsory process. Concerning the murder charge, we conclude  the evidence is legally and factually sufficient to support the jury=s verdict, and Jackson has failed to establish his defense counsel was ineffective.  We therefore affirm both convictions.

    I.  Factual and Procedural Background

    According to the testimony presented at trial, on the afternoon of October 20, 2003, Bernardo Ramirez saw a tall, black male wearing a shirt with a Chili=s restaurant logo leaving apartment 3188, which was two doors away from Ramirez=s apartment. Ramirez testified that he heard the man say Asmoke.@ A few minutes later, Ramirez stated he saw smoke coming from under the door to apartment 3188.  He immediately notified the apartment complex=s management.

    Sebastian Robles, a maintenance worker, was the first employee of the apartment complex to arrive at apartment 3188 after Ramirez reported the smoke.  Robles testified that the apartment door was locked, and he had to break a window to enter.  The fire had not spread beyond the apartment=s only bedroom, but Robles saw little else because the smoke was very thick.  Using two fire extinguishers, Robles extinguished the fire just as firefighters arrived.  As the smoke cleared in the apartment bedroom, Priscilla Viehland=s body was found on a partially charred air mattress with a pillow over her head.

    Juan Melchor, an arson investigator with the Houston Fire Department, spoke with  Bernardo Ramirez about the person Ramirez had seen near Viehland=s apartment earlier that day.  Melchor testified that when he subsequently learned a person matching the description given by Ramirez had been reported at a nearby hospital, he drove Ramirez there, and Ramirez confirmed that Anthony Lynn Jackson, the person in the hospital, was the same man he had seen exiting Viehland=s apartment minutes before noticing the smoke.

    Dr. Stephen Wilson of the Harris County Medical Examiner=s Office testified regarding the results of the autopsy performed on Viehland=s body.  He stated that although Viehland=s body was charred along the back and right side, there was no soot in Viehland=s airways, and her blood contained a relatively low amount of carboxyhemoglobin.[1] Dr. Wilson explained that these findings indicated that fire was not the cause of Viehland=s death, and she instead died from asphyxia due to strangulation.  He explained that Viehland=s face and eyes had petechial hemorrhages, which are congested and ruptured capillaries due to obstruction of the venous system.  He also described contusions on her chest wall, subscalp, left arm, and left hand, and two faint parallel horizontal lines, three-eighths of an inch apart, on the front of her neck.  Dr. Wilson testified these marks strongly suggested that Viehland=s neck had been compressed by a ligature rather than manually.  He further explained that the muscles immediately below the skin of Viehland=s neck had hemorrhaged, and that this finding is consistent with either manual or ligature compression.  According to Dr. Wilson, no bones in Viehland=s neck were fractured, although such fractures are occasionally seen in ligature, as opposed to manual, strangulation.  Finally, analysis of the material recovered from under Viehland=s fingernails revealed only her own DNA.

    Dominick Ferrara, the manager at the Chili=s restaurant where both Jackson and Viehland worked, testified that Jackson and Viehland had dated but had ended their relationship approximately two months before Viehland=s death. According to Ferrara, Jackson was scheduled to start work at 10:45 a.m. on the day of Viehland=s death, but instead called Ferrarra at the start of his scheduled shift and said he was running late and would be there in twenty minutes.  However, Jackson did not come to work that day, but instead called Ferrara at 2:00 p.m. and reported that he was at a hospital.[2] Arson investigators called Ferrara approximately thirty minutes later, and Ferrara gave them this information.

    Sergeant G.J. Novak of the Houston Police Department testified that he and his partner questioned Jackson at the hospital on October 20, 2003.  According to Sergeant Novak, Jackson initially told him that he had last seen Viehland when he left her apartment at 5:00 a.m. that morning.  However, Jackson subsequently stated that he had been in Viehland=s apartment hours later.  In another interview the next day with Investigator Robert Kent, Jackson stated that he had found Viehland=s corpse in her apartment and set it on fire using fingernail polish remover.

    Jackson consented to a search of his apartment, and Investigator Thomas Wood participated in the search of Jackson=s and Viehland=s apartments.  According to his testimony at trial, investigators found clothing in Jackson=s apartment that matched Ramirez=s description of the clothing worn by the man he saw leaving Viehland=s apartment.  In Jackson=s home, they also found a nine-volt battery, matches, a key to Viehland=s apartment, a paper towel that smelled like solvent, and an undated note written by Viehland and addressed to Jackson.  In the note, Viehland told Jackson, AWe are not together because I don=t want to be with you anymore,@ and concluded, AI do love you Anthony, but enough to let you go completely.  I=m sorry but this is it.@  Wood further testified that the smoke detector in Viehland=s apartment was functional, but its battery was missing. The battery found in Jackson=s apartment was the same brand and type as those provided to tenants by Viehland=s apartment complex management to power their smoke detectors. 


    According to Wood, there was nothing in Viehland=s apartment to suggest that the fire was accidental.  To the contrary, he explained that there was a circular Apour pattern@ on the carpet of the bedroom where Viehland=s body was found, and a dog trained to detect flammable substances signaled that such a substance was present in this area.  Wood further testified that he found a bottle of nail polish remover under the sink in Viehland=s apartment, and fingerprints taken from that bottle matched Jackson=s.

    Keith Gray, Jackson=s cell-mate for a brief period, testified that Jackson admitted setting the fire.  According to Gray, Jackson told him that he had argued with Viehland  because she received and responded to a text message from another man while she was  intimate with Jackson. Gray further testified that Jackson said he left the apartment at about 4:00 a.m. but returned on his way to work, showered, realized Viehland was dead, and started the fire.  Gray also testified that when Jackson spoke of Viehland, he said, A>I didn=t mean to kill her,=@ and A>I didn=t mean to hurt her=@.

    After Jackson pleaded guilty to the arson charge and not guilty to the murder charge, a jury found him guilty of murder as charged and the trial court assessed punishment at life imprisonment.  Jackson then filed a motion for new trial contending that he had received ineffective assistance of counsel.  At the hearing on the motion, Jackson testified that his trial counsel did not contact potential witnesses whose names and phone numbers Jackson provided to him; did not introduce letters from Viehland indicating they had a good relationship; and did not ask Jackson about his mental health history, physical limitations, or military experience.  Jackson also testified that his trial counsel incorrectly advised him that pleading guilty to the arson charge would ensure that the offense would not be mentioned during the murder trial.  Jackson=s trial counsel, Steve Baxley, did not testify at the hearing on the motion for new trial but submitted an affidavit.  In his affidavit, Baxley stated that he was informed of only one potential witness and was given letters from Viehland that were of little value because they were undated.  He further stated he chose not to raise Jackson=s other possible defenses  because the defensive theories were flawed and could harm Jackson=s case.  Finally, Baxley stated that he never told Jackson that pleading guilty to the arson charge would ensure that it was not mentioned during the murder trial.  The trial court denied the motion for new trial and this consolidated appeal ensued.

    II.  Issues Presented

    Jackson presents six issues relating to the arson charge.  In his first and second issues, Jackson contends the trial court erred in failing to grant his motion for new trial based on ineffective assistance of counsel at the guilt/innocence and punishment phases of his trial.[3]  In his third through sixth issues, Jackson claims the trial court violated his Federal and State Constitutional rights to compulsory process by accepting and entering judgment on his guilty plea.

    Jackson challenges his murder conviction and sentence in an additional eight issues. In his first two issues, Jackson contends that he received ineffective assistance of counsel during the guilt/innocence and punishment phases of his trial.  In his third through eighth issues, Jackson argues that the evidence is legally and factually insufficient to support his conviction for murder because the State failed to prove that Jackson caused Viehland=s death by strangling her, smothering her, or by any other method.

    III.  Analysis

    A.      Claims of Ineffective Assistance of Counsel

    We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  Under the Strickland test, an appellant must prove (1) his trial counsel=s representation was deficient, and (2) the deficient performance was so serious that it deprived the appellant of a fair trial.  Id. at 687, 104 S. Ct. at 2064.  To establish both prongs, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Id. at  690B94, 104 S. Ct. at 2066B68. An appellant=s failure to satisfy one prong makes it unnecessary for a court to consider the other prong.  Id. at 697, 104 S. Ct. at 2069.  This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution.  Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986).

    Claims of ineffective assistance of counsel are commonly raised in a motion for new trial, as Jackson has done here.  In reviewing the trial court=s denial of the motion, we apply an Aabuse of discretion@ standard.  Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006) (en banc).  A trial court abuses its discretion if its decision is arbitrary or unreasonable.  Id.  In reviewing the ruling, we do not substitute our judgment for that of the trial court.  Id.  We view the evidence in the light most favorable to the trial court=s ruling and presume that all reasonable factual findings supported by the record were made against the losing party.  See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).  Thus, we will conclude that a trial court abused its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court=s ruling.  Id.

    1.       Arson Plea

    In his first issue challenging his arson conviction, Jackson argues that he received ineffective assistance of counsel because his defense attorney incorrectly advised him that pleading guilty to the arson charge would ensure that this charge was not mentioned during the murder trial.  In response to Jackson=s motion for new trial, his defense counsel submitted an affidavit denying that he made such a representation.  Counsel=s affidavit was contradicted by Jackson=s live testimony.  Thus, the issue became one of credibility. 


    Here, the trial court had the opportunity to evaluate Jackson=s demeanor during the hearing, and was familiar with both Jackson and his trial counsel through their prior appearances in court. Because the same judge who decided Jackson=s motion for new trial also presided over the murder trial, the trial court also knew the history and facts of the case.  See Holden, 201 S.W.3d at 764. The trial court therefore had sufficient evidence to determine whether Jackson or his counsel was more credible, and we will defer to this determination.  See id.  Consequently, we cannot conclude that no reasonable view of the record could support the trial court=s ruling.  We therefore overrule Jackson=s first issue challenging his arson conviction.

    2.       Murder Trial

    Jackson also contends that his trial counsel was ineffective at the guilt/innocence phase of his murder trial because his attorney did not (a) visit Jackson in jail after the case was set for trial, (b) hire an investigator, (c) introduce letters into evidence indicating that Jackson and Viehland had a good relationship, (d) introduce evidence that Jackson had served in the military, and (e) introduce evidence that Jackson was physically incapable of strangling or smothering Viehland due to a preexisting shoulder injury. 

    Jackson=s defense counsel rebutted each of these allegations in his affidavit.  He stated that, in addition to conversations they had in the courthouse, he visited Jackson in jail at least five times prior to trial.  He also stated that he had consulted a DNA expert before learning the results of the State=s DNA tests; however, the State=s tests did not incriminate Jackson.  The attorney also explained that he did not offer Viehland=s letters because the few that were dated were too remote in time to be useful. Moreover, he expressed concern that the prosecution would use the letters to buttress its theory that Jackson was infatuated with Viehland.  Jackson=s defense counsel also explained that he did not mention Jackson=s military record because Jackson did not receive an honorable discharge but instead received a general discharge under circumstances he refused to explain.  Finally, Jackson=s defense counsel stated that he did not mention Jackson=s shoulder injury or argue that Jackson was physically incapable of strangling Viehland because doing so would have allowed the State to rebut this argument by introducing evidence that Jackson had assaulted his estranged wife and his wife=s boyfriend. 


    In sum, the record shows that the challenged actions by Jackson=s trial counsel were Astrategic choices made after thorough investigation of law and facts relevant to plausible options@ and are therefore Avirtually unchallengeable.@   Strickland, 466 U.S. at 690B91, 104 S. Ct. at 2066.  Because Jackson has failed to establish that his attorney=s representation fell below professional standards, we overrrule his first issue challenging his murder conviction.

    3.  Combined Punishment Trial for Arson and Murder

    Jackson argues that he received ineffective assistance at the combined punishment phase of his trial because his attorney did not call as witnesses some of the people Jackson claimed would have testified favorably on his behalf.   In response, Jackson=s trial counsel stated in his affidavit that when he asked Jackson=s family to give him the names of possible character witnesses, they only gave him the name of a preacher who said he would pray for Jackson.  The attorney also stated that he spoke with other potential character witnesses, such as Jackson=s estranged wife and his mother, but decided that their testimony might damage Jackson=s case.  For example, Jackson=s defense counsel stated that he decided not to call Jackson=s mother at the punishment phase of trial because he was concerned that Jackson may have confessed to her.  He did not call Jackson=s wife because doing so could permit the State to question her about past physical abuse by Jackson. 

    Here, too, Jackson has failed to overcome the presumption that his attorney acted in accordance with sound trial strategy.  See id. at 691, 104 S. Ct. at 2066 (A[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel=s failure to pursue those investigations may not later be challenged as unreasonable.@).  We therefore overrule Jackson=s second issue challenging the punishment assessed in both convictions.

    B.      Claims of Denial of the Right to Compulsory Process

    In his third and fourth issues relating to his arson charge, Jackson contends the trial court violated his rights to compulsory process under the Texas and United States Constitutions by accepting his guilty plea pursuant to article 1.15 of the Texas Code of Criminal Procedure.  In his fifth and sixth issues, he argues that the trial court committed similar violations by entering a judgment of guilt under the same statute. 

    The portion of the statute relevant to this case is as follows:

    No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the [S]tate to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.

     

    Texas Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).[4]  Jackson contends that by accepting his guilty plea and entering judgment pursuant to this portion of the statute, the trial court violated his rights to compulsory process[5] because this provision requires the State to present evidence, but does not allow the defendant to do so.  But the record does not show that Jackson attempted to offer evidence at the hearing on his plea of guilty, that he was prevented from doing so, that he objected to his alleged inability to present evidence, or that he made an offer of proof.  See Tex. R. Evid. 103(a)(2); Coleman v. State, 966 S.W.2d 525, 527B28 (Tex. Crim. App. 1998) (en banc) (ATo exercise the federal constitutional compulsory process right, the defendant must make a plausible showing to the trial court, by sworn evidence or agreed facts, that the witness= testimony would be both material and favorable to the defense.@).  Thus, the alleged error arguably is not properly preserved for review.

    However, assuming that error was preserved, arguments substantially similar to those presented by Jackson have been  presented to and rejected by this court and our sister court, the First Court of Appeals.  See Lyles v. State, 745 S.W.2d 567, 568 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d); Vanderburg v. State, 681 S.W.2d 713, 717B18 (Tex. App.CHouston [14th Dist.] 1984, pet. ref=d).  We have consistently followed these precedents in a host of unpublished cases.[6]  As we have stated, article 1.15 is simply an additional procedural safeguard, not required under federal constitutional law, that a defendant will not be convicted on insufficient evidence even if he pleads guilty.  See Vanderburg, 681 S.W.2d at 718.  Nothing in article 1.15 prohibits the trial court from considering evidence offered by the defendant or requires the court to accept the State=s evidence as sufficient proof of guilt.  Id.  Moreover, a defendant is not required to expressly waive his right to compulsory process before the trial court can proceed to judgment on his plea of guilty.  Id. at 717.  Jackson=s arguments to the contrary rely solely on cases that predate the Vanderburg line of cases and do not attempt to distinguish them, but as a prior decision of this court, Vanderburg is controlling authority.[7] Accordingly, for the reasons expressed in Vanderburg and Lyles, we overrule Jackson=s third, fourth, fifth, and sixth issues pertaining to his arson conviction.

    C.      Legal Sufficiency of the Evidence to Support the Murder Conviction

    In his third, fifth, and seventh issues relating to his murder conviction, Jackson challenges the legal sufficiency of the evidence to show that he caused Viehland=s death, or that he strangled or smothered her.  When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).  Rather, we examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Id. at 443 U.S. at 319, 99 S. Ct. at 2789; Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc).

    A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. _ 19.02(b)(1) (Vernon 2003).  A person also commits murder if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.  Id. _ 19.02(b)(2).  When an indictment alleges multiple means of committing an offense, the State is required to prove only one of the alleged means in order to support  the conviction.  Eastep v. State, 941 S.W.2d 130, 133 (Tex. Crim. App. 1997) (en banc), overruled in part on other grounds by Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000) and Gollihar v. State, 46 S.W.3d 243, 256B57 (Tex. Crim. App. 2001).  Thus, we must affirm  Jackson=s murder conviction if the State presented legally sufficient evidence to prove that he strangled or smothered Viehland.

     After reviewing the evidence in the light most favorable to the verdict, we conclude there is sufficient evidence for a jury to find that Jackson caused Viehland=s death by one of the methods alleged in the indictment. Bernardo Ramirez=s testimony that he saw Jackson leaving Viehland=s apartment shortly before her body was discovered is one factor from which a rational jury could infer guilt.  See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006) (considering evidence that the appellant was seen at crime scene and hastily leaving it as part of the Atotality of the evidence@ from which a jury could infer guilt). Jackson also made inconsistent statements about when he had last been at Viehland=s apartment, and these statements were played for the jury.  This too may be considered by a jury as evidence of guilt.  See Prieto v. State, 879 S.W.2d 295, 300 (Tex. App.CHouston [14th Dist.] 1994, pet. ref=d) (considering the appellant=s changing versions of events as evidence supporting the jury=s finding of guilt).  The jury also heard the testimony of Keith Gray, who stated that Jackson told him he argued with Viehland about her contact with another man, and told Gray he Adidn=t mean to kill her.@  See Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.CHouston [14th Dist.] 2006,  pet. ref=d) (AEvidence showing motive to commit murder is a significant circumstance indicating guilt . . . .@). Perhaps most compelling, Jackson admitted that he set Viehland=s body on fire.  See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (AAttempts to conceal incriminating evidence, inconsistent statements, and implausible explanations to the police are probative of wrongful conduct and are also circumstances of guilt.@). From the foregoing evidence, a rational jury could find that Jackson intentionally or knowingly caused Viehland=s death.

    The evidence is also sufficient to support a jury=s finding that Jackson killed Viehland by strangling or smothering her. At trial, Dr. Wilson testified that asphyxia due to strangulation was the cause of death, and that there were two parallel lines on Viehland=s neck, consistent with strangulation by a ligature. Pictures of these lines were shown to the jury.  Dr. Wilson also testified that the muscles immediately below the skin of Viehland=s neck had hemorrhaged, which is consistent with both manual or ligature compression.  Finally, Viehland was found with a pillow over her head.

    Examining the evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found that Jackson intentionally and knowingly caused Viehland=s death by manual or ligature strangulation or by smothering her.  We therefore overrule Jackson=s third, fifth, and seventh issues relating to his murder conviction.


    D.      Factual Sufficiency of the Evidence to Support the Murder Conviction

    In his fourth, sixth, and eighth issues relating to his murder conviction, Jackson challenges the factual sufficiency of the evidence to show that he strangled Viehland, smothered her, or otherwise caused her death.  As previously discussed, the State was required to prove only one of the alleged means in order to support the conviction. Eastep, 941 S.W.3d at 133.  Thus, we must affirm Jackson=s murder conviction if the State presented factually sufficient evidence to prove that Jackson killed Viehland by strangling or smothering her.

    When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc)).  Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). When reviewing the evidence, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of the witness testimony.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc).  We do not re-evaluate the credibility of witnesses or the weight of evidence, and will not substitute our judgment for that of the factfinder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).  Finally, we must discuss the most important and relevant evidence that supports the appellant=s appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).


    In his brief, Jackson argues that there was no evidence he had scratches on his body or showed any other signs he had been in an altercation.  Although this argument presumes that Jackson could not have killed Viehland without sustaining even a slight visible injury, Jackson cites no authority or evidence supporting such a presumption.  Moreover, the State was required to prove only that Jackson committed the elements of the offense as charged; conviction for the offense of murder does not require that, in the course of killing his victim, the offender engage in an altercation that leaves detectable signs.  See Tex. Penal Code Ann. _ 19.02(b)(1) (Vernon 2003). 

    Jackson also complains that the time of Viehland=s death was never determined, but the indictment for murder alleges only that the offense occurred on or about October 20, 2003.  Viehland=s sister, Leslie, testified that she last saw Viehland at approximately 11:30 p.m. on October 19, 2003, and that the two later spoke by telephone.  Because Viehland=s body was found on the afternoon of October 20, 2003, there was sufficient evidence for the jury to find that Viehland was murdered on the date alleged in the indictment.  See also Garcia v. State, 981 S.W.2d 683, 685B86 (Tex. Crim. App. 1998) (en banc) (explaining that an indictment need not allege the precise date the offense occurred). 

    Jackson additionally contends that Keith Gray=s testimony is not credible.  However, we will not substitute our judgment of witness credibility for the jury=s determination.  Johnson, 23 S.W.3d at 9.  Moreover, Gray=s testimony was not essential to the prosecution; the jury could disbelieve Gray=s testimony and still find factually sufficient evidence on which to convict Jackson of Viehland=s murder.

    Jackson next alleges the evidence is factually insufficient to support his murder conviction because no murder weapon was found on his person or in his apartment, and no DNA evidence links him to the crime.  As we have previously stated, however, factually sufficient evidence does not necessarily include such physical evidence.  See Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (holding the evidence legally and factually sufficient to uphold an appellant=s aggravated robbery conviction Awithout DNA evidence, fingerprint evidence, or evidence of the gun or cash . . . .@). Moreover, the indictment alleged that Jackson caused Viehland=s death by strangling or smothering her; when her body was found, Viehland had a pillow over her head, and her body was partially charred.  From this evidence, the jury could have found that Jackson strangled Viehland with his hands, strangled her with a ligature that was consumed in the fire, or smothered her with the pillow found at the scene.  In each of these scenarios, there would be no distinct murder weapon in Jackson=s possession.  Moreover, each could be accomplished without leaving DNA evidence at the scene.        

     Viewing the evidence in a neutral light, we conclude that the jury=s verdict is not contrary to the great weight and preponderance of the evidence.  Accordingly, we overrule Jackson=s fourth, sixth, and eighth issues relating to his murder conviction.

    IV.  Conclusion

    We hold Jackson has failed to show that his defense counsel rendered ineffective assistance at any phase of trial; thus, the trial court did not abuse its discretion in denying Jackson=s motion for new trial.  In accordance with Vanderburg and its progeny, we further hold that the trial court did not err in accepting and entering Jackson=s guilty plea or in proceeding to judgment and sentencing on the arson charge.  Finally, we hold that the evidence is legally and factually sufficient to support Jackson=s murder conviction.  Accordingly, we affirm the trial court=s judgment.

     

     

     

     

    /s/      Eva M. Guzman

    Justice

     

     

     

     

    Judgment rendered and Memorandum Opinion filed March 1, 2007.

    Panel consists of Justices Anderson, Hudson, and Guzman.

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


    [1]  Carboxyhemoglobin is a compound formed in the blood when a person inhales carbon monoxide.  Dr. Wilson testified that when fire causes death, this compound will comprise about 30% of a person=s blood, but formed only 5% of Viehland=s blood.

    [2]  Jackson complained of chest pains.

    [3]  Although Jackson claims he received ineffective assistance of counsel during his Abench trial@ for arson, there was no trial on that charge because he pleaded guilty to the offense.  We therefore construe his brief to challenge the actions of his trial counsel that led to that guilty plea.

    [4]  Jackson waived his right to trial by jury as provided in the statute.

    [5]  This right is found in the Sixth Amendment to the U.S. Constitution, which reads in relevant part AIn all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.@ U.S. Const. amend. VI.  The right to offer the testimony of witnesses and compel their attendance at trial if necessary is a fundamental element of due process.  Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019 (1967). The Texas Constitution similarly states, AIn all criminal prosecutions the accused shall . . . have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State . . . .@ Tex. Const. art. I, _ 10.  Thus, with an exception that is not relevant to this case, the language of the Texas Constitution mirrors the language of the United States Constitution on the issue of compulsory process.

    [6]  See, e.g., Jones v. State, No. 14-04-00154-CR, 2005 WL 232272, at *2 (Tex. App.CHouston [14th Dist.] July 27, 2005, pet. ref=d) (mem. op., not designated for publication); Freeman v. State, Nos. 14-02-00616-CR & 14-02-00617-CR, 2003 WL 1922644, at *1 (Tex. App.CHouston [14th Dist.] April 24, 2003, pet. ref=d) (mem. op., not designated for publication); Wright v. State, 14-99-00956-CR, 2000 WL 489411, at *1 (Tex. App.CHouston [14th Dist.] April 27, 2000, no pet.) (not designated for publication); Schlemeyer v. State, Nos. 14-98-00248-CR & 14-98-00291-CR, 2000 WL 378047, at *3B4 (Tex. App.CHouston [14th Dist.] April 13, 2000, pet. ref=d) (not designated for publication); Crockett v. State, No. 14-99-00203-CR, 2000 WL 328399, at *1B2 (Tex. App.CHouston [14th Dist.] March 23, 2000, pet. ref=d) (mem. op., not designated for publication); Santana v. State, Nos. 14-97-01074-CR & 14-97-01075-CR, 1999 WL 1080968, at *1B2 (Tex. App.CHouston [14th Dist.] Dec. 2, 1999, pet. ref=d) (not designated for publication); Beals v. State, No. 14-97-00689-CR, 1999 WL 516118, at *1 (Tex. App.CHouston [14th Dist.] July 22, 1999, pet. ref=d) (not designated for publication); Luke v. State, No. 14-93-00558-CR, 1995 WL 504834, at *1B2 (Tex. App.CHouston [14th Dist.] Aug. 24, 1995, pet. ref=d).

    [7]  As the Court of Criminal Appeals stated, AWe recognize that the doctrine of stare decisis should generally be followed, because it promotes judicial efficiency and consistency, it fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.@  Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000).