Robert Ferguson v. State ( 2004 )

NO. 07-03-0480-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 30, 2004
______________________________
ROBERT FERGUSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A15107-0309; HON. ROBERT W. KINKAID, JR., PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
Appellant, Robert Ferguson, appeals his conviction for aggravated assault with a
deadly weapon. His four issues concern whether 1) the trial court erred in failing to give
a limiting instruction to the jury or alternatively declare a mistrial after the State allegedly
engaged in improper jury argument, 2) trial counsel’s failure to object to allegedly improper
jury argument constituted ineffective assistance of counsel, 3) the trial court erred in
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John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T EX . G O V ’T
C ODE A N N . §75.002 (a)(1 ) (Vernon Sup p. 2004).
overruling his objection to the introduction into evidence of a co-defendant’s bloody
clothing, and 4) the sentence and fine imposed were disproportionate to the crime and,
therefore, cruel and unusual punishment. We affirm the judgment of the trial court.
Issue One - Jury Argument
Appellant initially argues that the trial court should have given a limiting instruction
or declared a mistrial when the State improperly referred to the assault as being
“premeditated.” However, when the prosecutor made the comment, appellant did not
object. Thus, he waived any complaint he had to it. Cockrell v. State, 933 S.W.2d 73, 89
(Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173, 117 S. Ct. 1442, 137 L. Ed. 2d 548
(1997) (holding that a defendant’s failure to object to jury argument forfeits his right to
complain on appeal); Andrews v. State, 106 S.W.3d 402, 405 (Tex. App.–Houston [1st
Dist.] 2003, pet. dism’d) (holding that a defendant’s failure to object to allegedly improper
jury argument waives any complaint on appeal); Jones v. State, 900 S.W.2d 392, 397 (Tex.
App.–San Antonio 1995, pet. ref’d) (holding that since the appellant did not object, ask for
an instruction, or request a mistrial, nothing is preserved for review), and we overrule the
issue.
Issue Two - Ineffective Assistance
Next, appellant asserts that the failure to object to the allegedly improper jury
argument discussed under issue one constituted ineffective assistance of counsel. We
overrule the issue for several reasons.
First, appellant provides us with no argument or analysis supporting the issue, as
required by the rules of appellate procedure. TEX . R. APP. P. 38.1(h) (stating that the brief
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must contain a clear and concise argument for the contentions made). He merely alludes
to issue one and concludes that the failure to object evinced ineffective assistance of
counsel. Thus, he again waived his complaint. See Franklin v. Enserch, Inc., 961 S.W.2d
704, 711 (Tex. App.–Amarillo 1998, no pet.) (holding that the failure to provide the court
with any discussion of the facts and authorities relied on results in the waiver of the
complaint).
Second, the State may properly summarize evidence and draw reasonable
inferences therefrom during its jury argument. Brown v. State, 692 S.W.2d 497, 502 (Tex.
Crim. App. 1985) (holding that permissible areas of jury argument are a summation of the
evidence, a reasonable deduction from the evidence, an answer to opposing counsel’s
argument, and a plea for law enforcement). Here, evidence appeared of record illustrating
that 1) appellant had wanted to fight his victim earlier in the evening and 2) appellant’s
companion told appellant to wait and “we’ll take care of it” when they arrived at their
destination. This is some evidence indicative of premeditation, i.e. that appellant had
planned to assault the victim. Because of that, it can be said that the prosecutor was
simply making reasonable deductions from the evidence when he alluded to the fight as
being premeditated.
So, conceivably, the potential validity of the argument may have swayed defense
counsel to forego objecting. In other words, defense counsel’s silence may have been
intentional and related to trial strategy. Additionally, since the record neither illustrates
counsel’s motives for withholding objection nor dispels the notion that his silence was part
of some trial strategy, appellant did not overcome the presumption that counsel acted
effectively or pursuant to a sound strategy. Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim.
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Ohio App. 2000), cert. denied, 532 U.S. 1053, 121 S. Ct. 2196, 149 L. Ed. 2d 1027 (2001) (holding
that because the record was silent as to why defense counsel failed to object, it was
insufficient to overcome the presumption that his actions were part of a strategic plan);
Rios v. State, 990 S.W.2d 382, 385 (Tex. App.–Amarillo 1999, no pet.) (stating that claims
of ineffective assistance must be firmly founded in the record).
Issue Three - Admission of Evidence
Appellant next complains of the trial court’s decision to admit into evidence the
bloody shirt and pants of Billy Joe DeBusk, appellant’s companion. The clothing was
allegedly inadmissible because it was irrelevant and its probative value was substantially
outweighed by the danger of unfair prejudice. We overrule the issue.
Whether the trial court erred in admitting the evidence depends upon whether it
abused its discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).
Whether it abused its discretion depends upon whether the decision fell outside the zone
of reasonable disagreement. Id.
Here, the evidence showed that during a fight, appellant used a knife to cut his
victim in the face several times. Appellant insinuated that he acted in self-defense.
However, one witness testified that while appellant and this victim fought, DeBusk placed
a choke hold on the victim and so held him until the victim fell unconscious. It was while
the victim was in the grasp of DeBusk that appellant cut him, the witness continued. And,
given the laws of gravity, one could reasonably deduce that the blood ran down from the
cuts onto DeBusk’s clothes. Thus, the evidence of DeBusk’s bloody clothes served not
only to illustrate the severity of the victim’s wounds but also to support the contention that
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the cuts were not made in self-defense but resulted from two individuals attacking one.
See Stewart v. State, 703 S.W.2d 745, 747 (Tex. Crim. App. 1985) (noting that evidence
of bloody clothes could be admissible to help the jury understand the facts in the case, and
it was entitled to no less). When so viewed, reasonable minds could then differ as to
whether the clothes were relevant to the issues at hand. Thus, the decision that they were
relevant did not fall outside the zone of reasonable disagreement.
Next, while the sight of blood may stir emotion, the risk that it would so effect the
jury was no greater than that posed by the admission of three closeup pictures taken of the
victim’s severely lacerated face and of the three pictures depicting patches of blood on the
ground. Moreover, appellant does not complain about that evidence on appeal.
Additionally, the time needed to develop the evidence was not much; so, it cannot be said
that the factfinder was unduly distracted from considering the merits of the prosecution.
Simply put, upon comparing the risk of potential prejudice caused by the clothing against
the relevance of the bloody clothes, reasonable minds could again disagree as to whether
the former substantially outweighed the latter. And, because they can, we cannot say that
the trial court abused its discretion in admitting the clothes.
Issue Four - Cruel and Unusual Punishment
In his final issue, appellant contends that his sentence of 11 years imprisonment
and $5,000 fine was disproportionate to the offense and, therefore, constituted cruel and
unusual punishment. We overrule the issue.
The contention now uttered was not asserted below. Consequently, appellant
waived it. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (holding the
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contention that appellant’s right to be free of cruel and unusual punishment was waived
because the objection was not lodged in the trial court).
Having overruled each issue, we affirm the judgment of the trial court.
Brian Quinn
Justice
Do not publish.
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