Anthony Wert v. State , 2012 Tex. App. LEXIS 8489 ( 2012 )

Affirmed and Opinion filed October 11, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-01062-CR
ANTHONY WERT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 12
Harris County, Texas
Trial Court Cause No. 1730748
OPINION
Appellant Anthony Wert appeals his conviction for misdemeanor assault. After
the jury found him guilty, the trial court sentenced him to one year in Harris County Jail,
suspended his sentence, and placed him on community supervision for one year. In three
issues, appellant claims he received ineffective assistance of counsel. Specifically,
appellant argues his counsel was ineffective because he (1) did not file a motion to
suppress or object to the admissibility of appellant‘s custodial statement; (2) did not
object to a variance between the State‘s information and the jury charge; (3) did not
request a jury instruction on defense of property; and (4) committed cumulative errors.
We affirm.
Background
On January 9, 2011, at approximately 2:00 a.m., appellant, while intoxicated, was
driving away from a local bar when he was stopped by a police officer. The officer gave
appellant a courtesy ride home. Appellant‘s girlfriend was waiting for appellant in his
second floor apartment when he arrived. At approximately 3:00 a.m., appellant informed
his girlfriend that he planned to walk back to the bar to retrieve his car. In an attempt to
stop him from leaving, appellant‘s girlfriend took his shoes. As appellant tried to take the
shoes from his girlfriend, he pushed her, causing her to fall and hit her head. An
unknown person called the police to report domestic violence.
Two officers arrived at the apartment at approximately 3:30 a.m. After the first
officer knocked on the door, appellant waited a few minutes before answering it. He
finally opened the door approximately two feet and stood in the threshold. When the first
officer asked appellant to step outside, appellant replied, ―no,‖ in an aggressive voice and
tried to slam the door in the officer‘s face. The second officer suspected ―some type of
violence . . . was going on‖ because he could hear a woman crying inside the apartment.
The first officer put her foot in the threshold and again told appellant to step outside. She
grabbed his arm, and he began to struggle with her at the door. The second officer also
grabbed appellant‘s arm, pulled him outside onto the porch, and told him to sit down in a
chair outside the door.
Appellant, still apparently intoxicated,1 was ―very aggressive,‖ ―very belligerent,‖
disrespectful, and uncooperative. The first officer was ―concerned about [appellant‘s]
being violent.‖ Appellant yelled at the second officer, saying the officers ―ha[d] no right
to go inside of his apartment.‖ Appellant also kept trying to get back inside. In response
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The first officer testified she smelled alcohol on appellant‘s ―breath and person [and] he had
slurred speech, . . . watery eyes, poor balance, . . . [and] needed assistance . . . whenever he was standing.‖
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to the second officer‘s command to ―calm down,‖ appellant ―continued to get up and spin
around.‖ The officer handcuffed appellant, sat him on the ground, and told him ―to chill
out, behave.‖ In response to appellant‘s continued attempts to get up, the second officer
eventually took appellant to the patrol car. As the officer led him to the patrol car,
appellant was ―uncooperative‖ and pulled away. The officer testified that appellant was
not being arrested, but was being detained while the first officer completed her
investigation:
The fact that we were on a balcony, he continued to ignore all the
commands that I was giving him, I didn‘t want to risk injury to himself
[sic] or to me or other persons out on the scene. So, I thought it would be
better to place him in a patrol car where he would be secured.
He also testified appellant was still ―really belligerent‖ at that point. The first officer also
testified that, when an officer is concerned that a person may be violent, ―[i]f he‘s
cooperative, we‘ll sit him down, like we did [appellant]. If he continues to be belligerent
and uncooperative, generally he gets handcuffed. If he still continues to act belligerent
and uncooperative, then we‘ll put him in an area where he‘s contained.‖
In the meantime, the first officer announced she was entering the apartment, and
appellant‘s girlfriend responded she was in the bathroom. She came out of the bathroom
crying and holding a Ziploc bag with ice on her head. The officer saw a small pool of
blood on the floor in front of the left corner of a futon in the front room. Droplets of
blood trailed from there to the bathroom, and more droplets were on the bathroom floor
and sink. Appellant‘s girlfriend told the officer that appellant pushed her and she hit her
head, apparently on the corner of the futon, and received a small gash on her head.
After speaking with appellant‘s girlfriend, the first officer went to the patrol car to
get appellant‘s side of the story. She testified she had not decided yet to arrest appellant.
She did not read appellant his Miranda2 rights because ―he was not in custody when I
2
Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (prohibiting use of oral statement of accused
made as result of custodial interrogation unless statutory warnings are given and accused knowingly,
intelligently, and voluntarily waives rights).
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talked to him,‖ but he was not free to leave ―until the investigation was done.‖ The
officer asked appellant, ―[W]hat happened[?]‖ Appellant said his girlfriend tried to stop
him from getting his shoes, so he pushed her and she hit her head. Defense counsel did
not object to the admissibility of this statement at trial.
Discussion
We review claims of ineffective assistance of counsel under the standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 726 S.W.2d 53,
57 (Tex. Crim. App. 1986). Under Strickland, an appellant must prove that his trial
counsel‘s representation was deficient and that the deficient performance was so serious
that it deprived appellant of a fair trial. Strickland, 726 S.W.2d at 687. To establish the
first prong, an appellant must show that counsel‘s performance fell below an objective
standard of reasonableness. Id. at 688. Regarding the second prong, an appellant must
demonstrate that counsel‘s deficient performance prejudiced his defense. Id. at 692. To
demonstrate prejudice, an appellant must show a reasonable probability that, but for
counsel‘s unprofessional errors, the result of the proceeding would have been different.
Id. at 694; see also Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)
(explaining that ―reasonable probability‖ as used in the prejudice prong is ―probability
sufficient to undermine confidence in the outcome‖ of the proceeding) (citing Strickland,
466 U.S. at 687). Failure to make the required showing of either deficient performance
or sufficient prejudice defeats the claim of ineffectiveness. Strickland, 466 U.S. at 697.
Our review of defense counsel‘s performance is highly deferential, beginning with
the strong presumption that the attorney‘s actions were reasonably professional and were
motivated by sound trial strategy. Jackson v, State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994). Rarely will the trial record contain sufficient information to permit a
reviewing court to fairly evaluate the merits of a claim of ineffective assistance of
counsel. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of
cases, the appellant is unable to meet the first prong of the Strickland test because the
record on direct appeal is undeveloped. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.
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Ohio App. 2007). When the record is silent as to trial counsel‘s strategy, we will not conclude
that appellant received ineffective assistance unless the challenged conduct was ―‗so
outrageous that no competent attorney would have engaged in it.‘‖ Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005). A sound trial strategy may be imperfectly
executed, but the right to effective assistance of counsel does not entitle a defendant to
errorless or perfect counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.
2006). ―[I]solated instances in the record reflecting errors of omission or commission do
not render counsel‘s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel‘s performance for examination.‖
McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on other
grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).
Finally, ―[i]t is not sufficient that the appellant show, with the benefit of hindsight,
that his counsel‘s actions or omissions during trial were merely of questionable
competence.‖ Mata, 226 S.W.3d at 430. Rather, to establish that the attorney‘s acts or
omissions were outside the range of professionally competent assistance, appellant must
show that counsel‘s errors were so serious that he was not functioning as counsel.
Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).
I. Motion to Suppress
In his first issue, appellant complains of his counsel‘s failure to file a motion to
suppress or object to the admissibility of appellant‘s confession elicited while he was
handcuffed in the back of the patrol car. A trial counsel‘s failure to file a motion to
suppress is not per se ineffective assistance of counsel. See Kimmelman v. Morrison, 477
U.S. 365, 384 (1986). Counsel is not required to engage in the filing of futile motions.
Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991). Rather, to satisfy the
Strickland test and prevail on an ineffective assistance claim premised on counsel‘s
failure to file a motion to suppress, an appellant must show by a preponderance of the
evidence that the motion to suppress would have been granted and that the remaining
evidence would have been insufficient to support his conviction. Jackson v. State, 973
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S.W.2d 954, 956–57 (Tex. Crim. App. 1998). To meet his burden, appellant was
required to produce evidence that would defeat the presumption of proper police conduct.
Id. at 957.
Appellant argues that his confession was inadmissible under Miranda v. Arizona
because the police did not give him the required statutory warnings after putting him in
handcuffs into the back of the patrol car before he confessed. 384 U.S. 436. Miranda
prohibits the use of an oral statement of an accused made as a result of custodial
interrogation unless statutory warnings are given and the accused knowingly,
intelligently, and voluntarily waives any rights set out in the warnings. Id. at 478-79.
Miranda applies only to custodial interrogation. Id. at 444; Dowthitt v. State, 931 S.W.2d
244, 263 (Tex. Crim. App. 1996). A person is in ―custody‖ only if, under the
circumstances, a reasonable person would believe that his freedom of movement was
restrained to the degree associated with a formal arrest. Dowthitt, 931 S.W.2d at 254
(citing Stansbury v. California, 511 U.S. 318, 322 (1994)). The subjective intent of law
enforcement officials to arrest is irrelevant unless that intent is somehow communicated
or otherwise manifested to the suspect. Id. The placing of handcuffs on a defendant does
not, in and of itself, mean he is in custody. Balentine v. State, 71 S.W.3d 763, 771 (Tex.
Crim. App. 2002).
In Balentine, the Court of Criminal Appeals held that the suspect was not in
custody when he was handcuffed and placed in a patrol car because those actions were
reasonably necessary to ensure the officer‘s safety. Id. Here, both officers testified
appellant was ―aggressive,‖ ―belligerent,‖ ―uncooperative,‖ and potentially ―violent.‖ He
struggled with the first officer when she tried to enter the apartment, refused to sit in a
chair, and kept trying to go back inside the apartment. The first officer testified that she
was ―concerned about [appellant‘s] being violent,‖ and the second officer handcuffed
appellant in response to appellant‘s repeated attempts to get up and eventually took
appellant to the patrol car to prevent ―injury to himself or to me or to other persons out on
the scene.‖ The first officer testified these steps were consistent with police protocol
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regarding how to treat a person who may be violent. She also testified she was still
investigating the incident when she went to the patrol car and asked appellant what
happened. See id. (―The investigative detention did not evolve into an arrest simply
because appellant was escorted to the patrol car and handcuffed. [The officer] did only
that which was reasonably necessary to ensure his own safety while investigating
appellant‘s possible involvement[.]‖); see also Turner v. State, 252 S.W.3d 571, 580
(Tex. App.—Houston [14th Dist.] 2008, pet. ref‘d) (holding that suspect was not in
custody when officer handcuffed him for officer safety while transporting him to police
station).
Appellant has not presented evidence to defeat the presumption that the officers‘
conduct was proper so that a motion to suppress would have been granted. See Jackson,
973 S.W.2d at 956–57. Moreover, in light of the officers‘ testimony, counsel may have
concluded that the statement was admissible. Absent a record regarding counsel‘s trial
strategy, we may not rely on mere speculation to find counsel‘s performance deficient.
See Perez v. State, 56 S.W.3d 727, 731–32 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref‘d) (overruling ineffective assistance claim when trial counsel failed to object on
constitutional grounds to State‘s use of appellant‘s statement). We overrule appellant‘s
first issue.
II. Variance Between Information and Jury Charge
In his second issue, appellant complains that his counsel did not object to a
variance between the State‘s information and the jury charge. The State charged
appellant with ―unlawfully[,] intentionally and knowingly caus[ing] bodily injury to [the
complainant],‖ whereas, the jury charge allowed the jury to find appellant guilty if it
found appellant ―unlawfully, intentionally, knowingly, or recklessly cause[d] injury to
[the complainant].‖ (Emphasis added.) During closing arguments, the prosecutor stated,
―You plead in the affirmative but really it‘s ‗or‘[:] intentionally, knowingly, or
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recklessly.‖3 Appellant argues his counsel should have objected to this statement by the
prosecutor and to the use of the word ―or‖ in the jury charge on the ground that
appellant‘s Fourteenth Amendment right to due process of law was violated because the
information alleged one offense, but the State proved another.
It is proper for the jury to be charged in the disjunctive even though the indictment
(or information)4 may allege the differing methods of committing the offense in the
conjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). In this
connection, alternative theories of committing the same offense are properly submitted to
the jury in the disjunctive if the evidence is sufficient to support a finding under any of
the theories submitted. Id.; see also Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim.
App. 1999) (holding although indictment may allege manner and means of committing
offense in the conjunctive, jury may be charged in the disjunctive and a conviction on any
method alleged will be upheld if the evidence supports it). This comports with the
Fourteenth Amendment‘s guarantee of due process of law, under which a defendant may
not be convicted and deprived of his liberty except upon proof beyond a reasonable
doubt. See Villareal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).
In assessing the sufficiency of the evidence to support a conviction under the
Fourteenth Amendment, we must consider all of the record evidence in the light most
favorable to the verdict, and must determine whether, based on that evidence and
reasonable inferences therefrom, any rational factfinder could have found the defendant
guilty of all the elements of the offense beyond a reasonable doubt. Id. (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). In that analysis, the elements of the offense are
3
The State filed a motion to amend the information that the trial court never ruled on, but the
motion did not include a request to amend the language in the information discussed here.
4
Appellant was charged with misdemeanor assault by information. Indictments and informations
are both charging instruments. They do not differ in any material respect for purposes of our analysis.
See Tex. Code Crim. Proc. art. 27.01 (―The primary pleading in a criminal action on the part of the State
is the indictment or information.‖); see also McFadden v. State, 728 S.W.2d 444, 445 (Tex. App.—Austin
1987, writ ref‘d) (―‗[I]ndictment‘ refers to felony prosecutions and ‗information or complaint‘ refers to
misdemeanor prosecutions.‖).
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defined by the hypothetically correct jury charge for the case. Id.; see also Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge
―accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State‘s burden of proof or unnecessarily restrict the State‘s theories of
liability, and adequately describes the particular offense for which the defendant was
tried.‖ Villareal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240.
The hypothetically correct jury charge in this case would include the elements of
the charged offense as follows: appellant ―intentionally, knowingly, or recklessly
cause[d] bodily injury to [the complainant].‖ Tex. Penal Code § 22.01(a)(1) (listing
elements of assault); see Villareal, 286 S.W.3d at 327. The following evidence was
adduced at trial—appellant‘s girlfriend told the investigating officer that appellant pushed
her while trying to retrieve his shoes, which caused her to fall, hit her head, and receive a
gash, and appellant corroborated that account of the incident. A rational jury could have
found beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly
injured his girlfriend when he pushed her. See Villareal, 286 S.W.3d at 328. Thus, the
charge submitted to the jury was correct, and appellant was not deprived of his
Fourteenth Amendment right to due process of law merely because the information
alleged the methods of committing assault in the conjunctive. See id.; see also Kitchens,
823 S.W.2d at 258. Defense counsel did not err by failing to object to the prosecutor‘s
jury argument or the jury charge. We overrule appellant‘s second issue.
III. Defense of Property
In his third issue, appellant complains that his counsel did not request a defense of
property instruction to be included in the jury charge on the ground that appellant was
entitled to use force to retrieve his shoes from his girlfriend.
Counsel‘s strategy at trial was to claim appellant accidentally pushed his girlfriend
in an attempt to retrieve his shoes. This strategy is inconsistent with asserting a defense
of property. Section 9.41 of the Penal Code allows
[a] person unlawfully dispossessed of . . . tangible, moveable property by
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another [to use] force against the other when and to the degree the actor
reasonably believes the force is immediately necessary to . . . recover the
property if the actor uses the force immediately or in fresh pursuit after the
dispossession and . . . reasonably believes the other had no claim of right
when he dispossessed the actor[.]
Tex. Penal Code § 9.41(b)(1). Defense of property, therefore, involves an intentional use
of force to recover one‘s property, whereas counsel‘s argument that appellant
accidentally pushed his girlfriend centers on a lack of intent. See Ex parte Nailor, 149
S.W.3d 125, 133-34 (Tex. Crim. App. 2004) (holding trial counsel was not deficient in
failing to request instruction on self defense when his strategy was to argue the
complainant was accidentally injured). Appellant has not established that his trial
counsel was deficient in failing to request an instruction on defense of property. See id.;
see also Marlow v. State, 886 S.W.2d 314, 316 (Tex. App.—Houston [1st Dist.] 1994,
writ ref‘d) (holding defense counsel was not ineffective for choosing as matter of trial
strategy to proceed with only one of several available theories of defense). We overrule
appellant‘s third issue.
IV. Cumulative Errors
In his fourth issue, appellant alleged his counsel committed other errors that, along
with counsel‘s failure to file a motion to suppress or object to the jury charge, amounted
cumulatively to ineffective assistance. He asserts that his counsel also erroneously failed
to (1) file pretrial discovery motions, (2) interview the State‘s trial witnesses, (3) file a
pretrial motion in limine, and (3) object to leading questions and hearsay. As set forth
above, defense counsel did not err by failing to file a motion to suppress or object to the
jury charge. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)
(noting although a number of errors may be found harmful in their cumulative effect,
non-errors may not, in their cumulative effect, amount to error); see also Melancon v.
State, 66 S.W.3d 375, 381 (Tex. App.—Houston [14th Dist.] 2001, pet. ref‘d) (same).
We thus turn to appellant‘s other contentions.
Pretrial Motions and Discovery. Appellant argues that his counsel should have
10
filed discovery motions and interviewed the State‘s witnesses which ―would have
uncovered [appellant‘s] statement to the police officer and . . . [his girlfriend‘s]
statements to the police officer and the medical personnel.‖ However, appellant fails to
show that this evidence (or any other evidence) was not disclosed to defense counsel by
the State or that there was any evidence unknown and helpful to appellant which could
have been uncovered by means of filing discovery motions or interviewing the State‘s
witnesses. See Passmore v. State, 617 S.W.2d 682, 685 (Tex. Crim. App. 1981)
(declining to find counsel deficient when ―there [was] no showing as to what type of
informal discovery occurred in the instant cause‖), overruled on other grounds by Reed v.
State, 744 S.W.2d 112 (Tex. Crim. App. 1988); see also In re K.M.H., 181 S.W.3d 1,
9-10 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (―[W]e may only speculate why
counsel did not conduct formal discovery and what such discovery may have revealed.‖).
Appellant also argues defense counsel should have filed a motion in limine to
―limit[] the prosecutor from alluding to such matters as previous assaults on the same
victim.‖ Appellant has not shown that any damaging testimony or evidence was
presented whose prejudicial effect could have been eliminated by a motion in limine.5
Even assuming a motion in limine were in order, it would have benefitted appellant little,
if at all. A traditional motion in limine is a motion requesting that the opposing party be
directed to approach the trial court before offering certain types of evidence or otherwise
going into particular areas before the jury. Geuder v. State, 115 S.W.3d 11, 14 (Tex.
Crim. App. 2003); Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet.
5
Appellant presented one example of the prosecutor alluding to previous assaults on the same
victim during voir dire:
A habitual, what does that mean? She‘s been assaulted many times by the same guy, he‘s
beating on her, right? Here‘s what the rules of evidence say: I‘m not allowed to bring
that up. I am not by law allowed to say just because he‘s beaten her a hundred times
before means he beat her this time. The law says I can‘t bring that to you. So knowing
that, knowing that you‘ll never know about the past violence, does that change your
opinion?
Assuming without deciding that the prosecutor‘s statements and questions were improper, appellant has
not shown that his counsel could have anticipated and included them in a pretrial motion in limine.
11
ref‘d). A ruling on a motion in limine is not on the merits and only relates to the
administration of the trial. Harnett, 38 S.W.3d at 655. Motions in limine do not preserve
error whether the motion is granted or denied. Webb v. State, 760 S.W.2d 263, 275 (Tex.
Crim. App. 1988); Harnett, 38 S.W.3d at 655.
Absent a record regarding counsel‘s trial strategy, we may not speculate as to why
counsel did not file discovery motions, interview State witnesses, or file a motion in
limine. See Passmore, 617 S.W.2d at 685; see also In re K.M.H., 181 S.W.3d at 9-10.
These purported omissions by defense counsel do not show that he was deficient. See
McFarland, 845 S.W.2d at 843 (noting isolated omissions in record do not render
counsel‘s performance ineffective).
Failures to Object. Appellant finally complains that his counsel did not object to
leading questions regarding the elements of misdemeanor assault or to hearsay regarding
testimony elicited from one of the officers at trial.6 These failures to object to potentially
inadmissible testimony are not sufficient, in themselves, to constitute deficient
performance. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (―An
isolated failure to object to certain procedural mistakes or improper evidence does not
constitute ineffective assistance of counsel.‖); see also Thompson v. State, 9 S.W.3d 808,
814 (Tex. Crim. App. 1999) (holding presumption of strategy not rebutted when record
was ―silent as to why appellant‘s trial counsel failed to object to the State‘s persistent
attempts to elicit inadmissible hearsay‖). Moreover, appellant was required to provide
authority in support of his argument that the objections would have been meritorious,
which he did not do. See Melonson v. State, 942 S.W.2d 777, 782 (Tex. App.—
Beaumont 1997, no pet.); see also Valdes–Fuerte v. State, 892 S.W.2d 103, 112 (Tex.
App.—San Antonio 1997, no pet.). Appellant has not carried his burden of rebutting the
presumption that counsel‘s conduct might be considered sound trial strategy. The record
is silent as to why counsel did not make these objections, and we may not speculate on
6
The officer testified he had heard on the radio that appellant received a courtesy ride home from
another officer earlier on the night of the offense.
12
this issue. Jackson, 877 S.W.2d at 771.
Considering the totality of circumstances, we find that counsel‘s performance was
not deficient based on cumulative errors. See Thompson, 9 S.W.3d at 813 (noting
appellate court looks to totality of circumstances and particular circumstances of each
case in evaluating effectiveness of counsel). We overrule appellant‘s fourth issue.
We affirm the judgment of the trial court.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Boyce, Christopher and Jamison.
Publish — TEX. R. APP. P. 47.2(b).
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