Michael John James v. State

ACCEPTED
03-15-00241-CR
8205644
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/11/2015 3:32:40 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00241-CR
FILED IN
3rd COURT OF APPEALS
In the Texas Court of Appeals AUSTIN, TEXAS
Third District, at Austin 12/11/2015 3:32:40 PM
JEFFREY D. KYLE
Michael John James, Clerk
Appellant
v.
The State of Texas,
Appellee
Appeal from the 427th District Court of Travis County
Cause Number D-1-DC-13-907320
STATE’S BRIEF
Rosemary Lehmberg
District Attorney
Travis County
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is not requested
Table of Contents
Index of Authorities............................................................................. ii
Summary of the State’s Argument........................................................1
Standard of Review.............................................................................. 2
Argument ............................................................................................. 3
Reply Point: Appellant has not shown ineffective assistance of
counsel. ............................................................................................. 3
Prayer .................................................................................................. 5
Certificate of Compliance and Service ................................................. 6
i
Index of Authorities
Cases
Ochoa v. State, 119 S.W.3d 825 (Tex. App.—San Antonio 2003, no
pet.)................................................................................................... 5
Strickland v. Washington, 466 U.S. 668 (1984) ................................. 2
Woodall v. State, No. 03-05-00850-CR, 2008 Tex. App. LEXIS 6249
(Tex. App.—Austin 2008, pet. ref’d) ................................................ 5
ii
No. 03-15-00241-CR
In the Texas Court of Appeals
Third District, at Austin
Michael John James,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 427th District Court of Travis County
Cause Number D-1-DC-13-907320
STATE’S BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response to
Appellant’s brief.
Summary of the State’s Argument
Appellant claims that he received ineffective assistance of counsel
because his attorney did not object to a police officer’s testimony that
he thought Appellant’s vehicle was a deadly weapon. He argues that
the officer was not qualified as an expert to give this opinion.
1
First, Appellant has not shown that trial counsel was deficient
because he has not given counsel an opportunity to defend himself
and he has not shown that the witness was not qualified to give this
opinion.
Additionally, Appellant has not shown that the officer’s opinion
harmed him because the record is replete with evidence that
Appellant used his motor vehicle as a deadly weapon, and the trial
court focused on this evidence, not the officer’s opinion, in coming to
a verdict.
For these reasons, Appellant has not met his burden on his
ineffective assistance of counsel claim, and the court’s judgment
should be affirmed.
Standard of Review
In an ineffective assistance claim, the burden is on the appellant
to show by a preponderance of the evidence that (1) counsel's
performance was deficient, and (2) there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668 (1984).
2
Argument
Reply Point: Appellant has not shown ineffective assistance
of counsel.
At trial, the prosecutor asked the police officer, “Based on the
story that you received from [the victim], was the car a deadly
weapon?” The officer responded, “Yes.” 4RR 48.
Appellant argues that his trial counsel should have objected
because the officer was not qualified as an expert to give this opinion.
1) Appellant has not shown that counsel’s performance
was deficient.
First, Appellant has not shown that counsel was deficient because
he has not given counsel an opportunity to defend himself.
Second, Appellant has not shown that the police officer was not
qualified to give this opinion. The officer had 10 years’ experience as a
patrol officer, which surely qualified him to give an opinion that the
vehicle was a deadly weapon in this case. 4RR 45-46. And if not,
Appellant has not shown that the State could not have qualified the
officer as an expert, if trial counsel had objected.
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2) Appellant has not shown that the result of the
proceeding would have been different.
The record is replete with evidence that Appellant used his vehicle
as a deadly weapon. Specifically, the evidence shows that:
 Appellant was driving a full-size Dodge 1500 pickup;
 the victim was driving a little BMW;
 Appellant tailgated the victim, driving within a foot of her
bumper;
 she sped up;
 he tried to hit her bumper;
 he tried to run her off the road;
 he tried to hit her car multiple times;
 she had to swerve to avoid him;
 she drove up on the curb to avoid being hit, causing
damage to her car;
 she was afraid that he was going to kill her or that she
was going to hurt somebody while trying to avoid him;
 he drove over a concrete median in an attempt to make a
U-turn to get back to her;
 and all this happened on Braker Lane near MoPac,
during lunch time, in heavy traffic.
4RR 28-40, 68-69, 80; and SX 1 (the 911 call).
In light of all of this evidence, the officer’s opinion was pretty
inconsequential. In fact, the record reflects that the trial court focused
on the testimony about Appellant’s driving, not the officer’s opinion,
in deciding whether the vehicle was a deadly weapon. 4RR 98-102.
4
Appellant argues that he was harmed because, without the
officer’s opinion, the evidence would be legally insufficient to prove
that the vehicle was a deadly weapon. That is not the case. The
evidence listed above is clearly sufficient to show that Appellant used
his truck as a deadly weapon. See Ochoa v. State, 119 S.W.3d 825,
828 (Tex. App.—San Antonio 2003, no pet.) (finding evidence legally
sufficient when defendant almost hit another vehicle); Woodall v.
State, No. 03-05-00850-CR, 2008 Tex. App. LEXIS 6249, *9-10 (Tex.
App.—Austin 2008, pet. ref’d) (mem. op., not designated for
publication) (same).
In sum, Appellant has not shown that counsel was deficient or
that he was harmed, so he has not met either prong of the Strickland
test.
Prayer
The State asks this Court to overrule Appellant’s point of error and
affirm the trial court’s judgment.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
5
Angie Creasy
Assistant District Attorney
State Bar No. 24043613
P.O. Box 1748
Austin, Texas 78767
(512) 854-9400
Fax (512) 854-4810
Angie.Creasy@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Certificate of Compliance and Service
I certify that this brief contains 581 words. I further certify that,
on the 11th day of December, 2015, a true and correct copy of this brief
was served, by U.S. mail, electronic mail, facsimile, or electronically
through the electronic filing manager, to the defendant’s attorney,
Leonard Martinez, 812 San Antonio, Suite 104, Austin, Texas 78701.
Angie Creasy
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