Timothy Nealy v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00369-CR



Timothy Nealy, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 0942458, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

Appellant Timothy Nealy appeals from his conviction for aggravated robbery. Tex. Penal Code Ann. § 29.03 (West 1994). The trial court assessed appellant's punishment, enhanced by proof of two prior felony convictions, at imprisonment for thirty-five years. In seven points of error, appellant complains that the evidence is insufficient to support the jury's verdict, that the trial court erred in refusing to grant his motions for continuance and judgment notwithstanding the verdict, and that he did not receive effective assistance of counsel. We will affirm the judgment.

In his seventh point of error, appellant asserts that the evidence is insufficient to show his guilt of aggravated robbery. In reviewing a challenge to the sufficiency of the evidence, the standard is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994).

Appellant argues that the evidence is insufficient to show that he caused or threatened serious bodily injury or death, exhibited a deadly weapon, or encouraged or aided another to commit the offense. Therefore, he urges that, at best, the evidence shows he is guilty of robbery, not aggravated robbery. The testimony of both the victim and a witness, Dayan Smith, shows that two men committed the offense. Although the victim could not identify appellant, Smith identified appellant as one of the two robbers. The victim testified that one of the robbers struck him in the head with a brick and the other robber shouted, "Kill him, kill him." This testimony would allow the jury to find either of the robbers guilty of aggravated robbery and to reject appellant's contention that it was the same robber who struck the victim with the brick that shouted, "Kill him, kill him." The evidence is sufficient to sustain the jury's verdict that appellant is guilty of aggravated robbery. Appellant's seventh point of error is overruled.

In point of error six, appellant declares that his conviction is void because his identification by an eyewitness was obtained through suggestive means. Dayan Smith, the eyewitness, was shown a display of six photographs. She testified that she was "able to pick him [appellant] out right away." Appellant claims that in the police file was a photograph of appellant which had "a unique mark" on the back. However, as appellant acknowledges, Smith testified she did not look into the folder. There is no evidence that she saw a mark on the back of appellant's photograph even though it may have been there. The basis for appellant's claim has no factual support in the record. Appellant's sixth point of error is overruled.

In his first three points of error, appellant insists that the trial court erred in refusing to grant his motions for continuance. In these motions, appellant urged that his trial counsel had not been given sufficient time to prepare for trial because he had not been furnished timely the record of a pretrial proceeding in which another attorney had represented appellant. The record shows that trial counsel was furnished the pretrial record late the night before the trial started. However, the trial court did not start receiving evidence until after counsel had read the pretrial record. The appellate record shows and appellant admits that his motions for continuance were oral motions. To preserve for appellate review matters raised in a motion for continuance the motion must be in writing and sworn. Tex. Code Crim. Proc. Ann. art. 29.03, 29.08 West 1989). Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Montoya v. State, 810 S.W.2d 160, 176 (Tex. Crim. App. 1989); Porter v. State, 623 S.W.2d 374, 381 (Tex. Crim. App. 1981). Moreover, facts and documents essential to appellant's argument are supplied by counsel's affidavit and documents attached to appellant's appellate brief. These facts and documents are not in the record. Affidavits and documents attached to appellate briefs may not be considered on appellate review. Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981); Garrett v. State, 566 S.W.2d 605, 609 (Tex. Crim. App. 1978); Grant v. State, 505 S.W.2d 259, 260 (Tex. Crim. App. 1974); Bowler v. State, 822 S.W.2d 334, 334 (Tex. App.--San Antonio 1992, pet. ref'd). Furthermore, it appears that appellant's motion for new trial was overruled by operation of law without a hearing. Therefore, appellant has not demonstrated by his motion for new trial that he was harmed by the overruling of his motions for continuance. Appellant's first three points of error are overruled.

In his fifth point of error, appellant protests that the "trial court erred in denying his motion for judgment notwithstanding the verdict." When the police officers were investigating the instant robbery, they were also investigating another robbery which was committed a short time later. Defense counsel cross-examined police officer Steve Hamblin asking him whether he had asked Sherry Nash, a participant in the second robbery, if appellant was involved in the first robbery. Officer Hamblin testified that he had not asked Sherry Nash about appellant's participation in the first robbery. Defense counsel then asked, "Don't you think that she [Sherry Nash] would have personal knowledge that had the capacity to exonerate him [appellant as a participant in the instant case]?" Officer Hamblin answered, "No sir. The man [appellant] admitted to me that he was there and what he did. He gave a confession to what he did." When counsel then asked if he could see the confession, Officer Hamblin replied that it was oral. Then counsel objected and asked that the testimony be stricken. The trial court sustained the objection and promptly admonished the jury to disregard the testimony. Appellant obtained all the relief he requested and did not ask for a mistrial. The guilt-innocence phase of the trial was completed and the jury's verdict was received. The next day during the punishment phase of the trial, appellant complained of Officer Hamblin's nonresponsive answer and moved for "judgment notwithstanding the verdict."

It is axiomatic that to preserve an error in the admission of evidence for appellate review, a defendant must make a timely objection. Tex. R. App. P. 52; Johnson v. State, 878 S.W.2d 164, 167 (Tex. Crim. App. 1994). An objection is timely if it is raised as soon as the ground of objection becomes apparent. Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1991); that is, as soon as the defense knows or should know that an error has occurred, Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991). Moreover, a defendant must pursue his objection until he receives an adverse ruling to preserve his point for review. Harris v. State, 784 S.W.2d 5, 12 n.4 (Tex. Crim. App. 1989); Johnson v. State, 878 S.W.2d at 167. No error is preserved if a defendant receives all the relief he requests. Johnson v. State, 604 S.W.2d 128, 132 (Tex. Crim. App. 1980); Nichols v. State, 504 S.W.2d 462, 464 (Tex. Crim. App. 1974). At the time the claimed error occurred, appellant's objection was not timely. Furthermore, appellant received all of the relief he requested at that time. The motion for "judgment notwithstanding the verdict" made a day after the claimed error occurred was too late to preserve the alleged error for review. Appellant's fifth point of error is overruled.

In his fourth point of error, appellant urges that his "conviction is void because counsel was unable to render effective assistance of counsel." After appellant was represented by appointed counsel at the pretrial identification hearing, appellant employed trial counsel who also represents appellant on appeal. Appellant's argument in this point of error, like his argument in his first three points of error, is largely based on counsel's affidavit and the documents attached to his appellate brief. We may not properly consider the affidavit or the documents. Appellant also argues speculative matters concerning counsel's investigation of the offense and his failure to file pretrial motions. One example of these speculative actions which appellant says counsel might have pursued, is that counsel could have "even subpoenaed an ophthalmologist to test her [the eyewitness's] eyesight in court. The eyewitness's evasive answers concerning her eyesight were vital to appellant's case." Appellant has made no attempt to show how the failure of counsel to pursue the suggested speculative matters harmed appellant or how the result of the trial would have been different.

To show ineffective assistance of counsel, appellant must show that: (1) trial counsel's performance was deficient, in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); O'Hara v. State, 837 S.W.2d 139 (Tex. App.--Austin 1992, pet. ref'd). Counsel's performance is to be judged by the "totality of representation" provided. Strickland, 466 U.S. at 690; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). In deciding an ineffective-assistance claim, this Court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct--not by hindsight. We must then determine, in light of all the circumstances, whether the acts or omissions are outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690. Appellant bears a heavy burden to prove his ineffective-assistance claim. Counsel is strongly presumed to have provided adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Id. We must not look at the errors of counsel in a vacuum. As a general rule, isolated instances in the record reflecting errors of omission or commission do not necessarily render counsel's representation ineffective. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992); Ex parte Owens, 860 S.W.2d 727, 729 (Tex. App.--Austin 1993, pet. ref'd). In determining whether appellant had ineffective assistance of counsel, an appellate court must make an independent judgment based on mixed questions of law and fact. Ex parte Owens, 860 S.W.2d at 729 (Tex. App.--Austin 1993, pet. ref'd). We have examined the record in light of the applicable law and conclude that under the record before us the totality of trial counsel's representation of appellant was well within the standard required by Strickland. Appellant's fourth point of error is overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Chief Justice Carroll, Justices Aboussie and Dally^*

Affirmed

Filed: January 10, 1996

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

overruled.

In his fourth point of error, appellant urges that his "conviction is void because counsel was unable to render effective assistance of counsel." After appellant was represented by appointed