John Andrew Garcia v. State

Opinion issued April 16, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00649-CR
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JOHN ANDREW GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 412th Judicial District Court
Brazoria County, Texas
Trial Court Case No. 73555
MEMORANDUM OPINION
A jury found Appellant guilty of the offense of aggravated assault 1 and
assessed his punishment at 10 years in prison. Because the indictment alleged that
1
See TEX. PENAL CODE ANN. § 22.02 (Vernon 2011).
Appellant used a deadly weapon in the commission of the offense, the trial court
included an affirmative deadly-weapon finding in the judgment.
On appeal, Appellant raises two issues. He asserts that the evidence was not
sufficient to support the judgment and complains that he received ineffective
assistance of counsel at trial.
We affirm.
Background
Rene Arredondo owed Tim McKeel $25 for work McKeel had performed
for Arredondo. McKeel went to Arredondo’s home to ask for the money. At the
time, Arredondo was dismantling a truck in his yard to sell for scrap. Arredondo’s
brother, Dion, was helping him. Arredondo told McKeel that he would pay him
the money in approximately an hour after he scrapped the vehicle. McKeel left
and went to his home in a trailer park across the street.
Appellant also lived in the trailer park. Appellant and McKeel returned to
Arredondo’s yard. Appellant and Dion began to argue. Appellant left and returned
to the trailer park. Dion followed Appellant, and the two men continued their
argument at the trailer park.
Arredondo also went to the trailer park. As the argument between Dion and
Appellant continued, other people also came to the scene, including Arredondo’s
wife.
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Arredondo decided to return home to continue working on the truck.
Arredondo’s wife was walking in front of him when, suddenly, Arredondo was hit
in the face. Arredondo was briefly knocked unconscious. Although he did not see
who struck him, Arredondo believed it was Appellant because Appellant was
standing beside him. Arredondo did not see what Appellant had hit him with, but
later testified that it was “[a] very, very hard object. I know it was a piece of metal
that hit me.”
Arredondo’s wife also did not see the blow because she was walking in front
of Arredondo. She did, however, hear the blow being delivered. She later testified
that it did not sound like a fist because it sounded “very loud” and “solid.” She
also stated that Appellant was the only person standing close by when she turned
around to see what had happened.
The police were dispatched to the scene in response to a call that there was a
fight involving a pipe. After the police arrived, Arredondo identified Appellant as
the person who had hit him. He told the police that he had been hit with a piece of
metal. The police did not find a pipe, but they did recover a metal wrench lying on
the ground near where Arredondo had been struck.
Arredondo was taken by ambulance to the hospital where it was determined
that his jaw was fractured in two places. His teeth were also damaged. One of the
responding police officers later testified that Arredondo’s injuries were not
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consistent with being hit with a fist, rather, they were consistent with being hit with
an object.
Appellant was charged with the offense of aggravated assault. The two-
paragraph indictment read, in part, as follows:
[Appellant] . . . on or about the 19th day of June, 2013 intentionally or
knowingly or recklessly cause[d] bodily injury to Rene Arredondo
and did use or exhibit a deadly weapon, namely, a wrench, which in
the manner of its use or intended use was capable of causing death or
serious bodily injury by striking . . . Rene Arredondo about the facial
area[.]
....
[Appellant] . . . on or about the 19th day of June, 2013
intentionally or knowingly or recklessly cause[d] bodily injury to
Rene Arredondo and did use or exhibit a deadly weapon, namely, a
hard metal object, which in the manner of its use or intended use was
capable of causing death or serious bodily injury by striking . . . Rene
Arredondo about the facial area[.]
At trial, the State presented the testimony of Arredondo, his wife, the
responding police officers, and a police property and evidence technician, who
testified that the wrench recovered from scene tested negative for blood. He also
testified that the wrench had not been tested for DNA or fingerprints. The State
introduced the wrench into evidence.
McKeel testified for the defense. He stated that he saw Arredondo
aggressively push Appellant. McKeel testified that he then saw Appellant hit
Arredondo in the face with a closed fist. McKeel stated that he did not see any
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object in Appellant’s hand when he hit Arredondo. Appellant did not testify at
trial.
In his closing argument, defense counsel asserted that the State had failed to
offer evidence showing that Appellant had struck Arredondo with any type of
object. Rather, he stated that the evidence showed that Appellant had struck
Arredondo with his fist in self-defense after Arredondo pushed Appellant. The
jury rejected Appellant’s claim of self-defense and found Appellant guilty of the
offense of aggravated assault as charged in the indictment.
During the punishment phases, the State introduced evidence showing that
Appellant had numerous prior convictions for misdemeanor offenses, including
assault, and also showing that Appellant had a prior felony conviction for the
offense of manufacture and delivery of a controlled substance.
Appellant testified in his own defense during the punishment phase. He
claimed that he had only used his hand to assault Arredondo. Appellant denied
hitting Arredondo with an object. The jury assessed Appellant’s punishment at 10
years in prison.
Appellant filed a motion for new trial. He claimed that he had received
ineffective assistance of counsel at trial. Appellant asserted that his trial counsel
had denied him the opportunity to testify at the guilt-innocence phase. Appellant
admitted that his counsel had informed him that he had a right to testify but had
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then advised him not to testify. Appellant claimed that, had he testified at the
guilt-innocence phase, he would have told the jury that he struck Appellant only
with his fist and had not struck Arredondo with a weapon.
Appellant’s trial counsel also testified at the hearing. He testified that, to the
best of his recollection, he told Appellant “what I tell every client, that he has an
absolute constitutional right to testify if he wants to.” Trial counsel stated that he
advised Appellant not to testify because Appellant had a criminal record. Trial
counsel testified Appellant made the decision not to testify at the guilt-innocence
phase and had expressly communicated that choice to him. Trial counsel stated
that, had Appellant chosen to testify against his advice, “[he] would have asked for
a record hearing outside the presence of the jury and we would have gotten his
decision, if that was what it was, on the record and he would have testified.”
The docket sheet indicates that the trial court denied the motion for new
trial; however, there is no order in the record denying the motion. Thus, the
motion was overruled by operation of law. This appeal followed.
Sufficiency of Evidence
In his first issue, Appellant asserts that the evidence was insufficient to
support the judgment of conviction for aggravated assault. Specifically, Appellant
claims that the evidence was insufficient to show that he used a deadly weapon,
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namely, a wrench or a hard metal object, to strike Arredondo, as alleged in the
indictment.
A. Standard of Review
We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single
standard of review. See Ervin v. State, 331 S.W.3d 49, 53–54 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding of Brooks v.
State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This standard of review is the
standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
Pursuant to the Jackson standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
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Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). An appellate court presumes that the fact finder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
In our review of the record, direct and circumstantial evidence are treated
equally; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point
directly and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the conviction.”
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Analysis
A person commits the offense of aggravated assault if he commits assault
and uses or exhibits a deadly weapon during the commission of the assault. See
TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011). A “deadly weapon” is “(A)
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a firearm or anything manifestly designed, made, or adapted for the purpose of
inflicting death or serious bodily injury; or (B) anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.” TEX.
PENAL CODE ANN. § 1.07(a)(17) (Vernon Supp. 2014).
Here, the indictment specified that Appellant had used a “deadly weapon,”
namely, either “a wrench” or “a hard metal object” in committing his assault
against Arredondo. In light of all the evidence presented, a rational jury could
have found, beyond a reasonable doubt, that Appellant used a hard metal object in
committing the assault against Arredondo. Although the State did not produce
evidence showing that anyone saw Appellant strike Arredondo with any object,
there was sufficient evidence for a rational jury to conclude that a hard metal
object had in fact been used to strike Arredondo.
Arredondo testified that, in his lifetime, he had been punched in the face by
a fist and knew how that felt. He stated that it was not Appellant’s fist that struck
him. Arredondo testified that he was hit by “[a] very hard, very hard object. I
know it was a piece of metal that hit me.” When asked, “Is there any doubt in your
mind that what you got hit with was a hard metal object?” Arredondo responded
that he had no doubt. He also testified that he knew that it was not a stick or a rock
that Appellant had used to strike him. Arredondo testified that, as a result of the
blow, his jaw was fractured in two places and his teeth were damaged.
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Arredondo’s wife acknowledged that she had not seen Appellant hit
Arredondo, and she had not seen anything in his hand. However, she also testified
that she heard the blow and it did not sound like a fist hitting her husband. Rather,
she stated that it sounded “very loud” and “solid.”
In addition, one of the responding police officers testified that Arredondo’s
injuries were not consistent with being struck with a fist. The officer indicated
that, due to the severity of the injuries, she believed an object had been used to
strike Arredondo. Further, the evidence showed that the police recovered a metal
wrench from the area where Arredondo had been assaulted. The metal wrench,
which is a hard metal object, was admitted into evidence.
In challenging the sufficiency of the evidence, Appellant points out that
neither Arredondo nor his wife saw Appellant strike Arredondo, and no evidence
was presented to show that anyone saw Appellant with a hard metal object or
wrench in his hand. Appellant also points out that McKeel testified that he saw
Appellant strike Arredondo with only his fist. Appellant further cites evidence that
there was no blood detected on the wrench. Lastly, Appellant calls attention to the
fact that the evidence showed that the police did not test the wrench for DNA or
for fingerprints.
At most, the testimony cited by Appellant created a conflict in the evidence,
and we find no fault in the jury’s resolution of this conflict against Appellant. See
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Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Viewing the evidence in a light most
favorable to the verdict, we conclude that a rational fact finder could have found
beyond a reasonable doubt that Appellant assaulted Arredondo by using a hard
metal object. We hold that the evidence was sufficient to support the judgment of
conviction.
We overrule Appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, Appellant asserts that he received ineffective assistance
at trial and asserts that the trial court erred when it did not grant his motion for new
trial based on his ineffective assistance of counsel claim.
A. Governing Legal Principles
Allegations of ineffective assistance of counsel must be firmly rooted in the
record. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). To prevail
on a claim of ineffective assistance of counsel, the defendant must show that (1)
his counsel’s performance was deficient and (2) a reasonable probability exists that
the result of the proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98,
101–02 (Tex. Crim. App. 2005). The defendant has the burden to establish both
prongs by a preponderance of the evidence; failure to make either showing defeats
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an ineffectiveness claim. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011); see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
When, as here, an appellant has presented issues of ineffective assistance in
a motion for new trial, we review the trial court’s denial of the motion for an abuse
of discretion. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012).
“Accordingly, when analyzing the trial court’s failure to grant a new trial on the
basis of ineffective assistance of counsel, we view the relevant legal standards
through the prism of abuse of discretion.” Ramirez v. State, 301 S.W.3d 410, 415
(Tex. App.—Austin 2009, no pet.). A trial court abuses its discretion when its
decision is so clearly wrong as to lie outside the zone of reasonable disagreement.
Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). Such an abuse of
discretion occurs only when no reasonable view of the record would support the
trial court’s ruling. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
We view evidence in the light most favorable to the trial court’s ruling, and will
reverse only if no reasonable view of the record could support the trial court’s
finding. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
B. Analysis
Appellant claims that he “was denied effective representation of counsel by
not being given the opportunity to make his own decision not to testify and by
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being deprived of his right to testify at trial.” He asserts that the trial court should
have granted his motion for new trial.
At the motion for new trial hearing, Appellant acknowledged that his trial
counsel informed him that he had a right to testify. However, Appellant testified
that, after advising him not to testify, his counsel did not give him an opportunity
to testify. When asked whether it was his decision not to testify or whether it was
his trial counsel’s decision, Appellant stated that it was his trial counsel’s decision.
Appellant did not elaborate any further.
At the hearing, trial counsel agreed that he had advised Appellant not to
testify at the guilt-innocence phase because Appellant had a prior felony
conviction. Trial counsel testified that it had been Appellant’s decision not to
testify at the guilt-innocence phase. Although he did not remember the exact
words used by Appellant, trial counsel testified that he remembered Appellant had
expressly indicated to him that he did not want to testify at the guilt-innocence
phase.
At a hearing on a motion for new trial, the trial court is the sole judge of
witness credibility. See Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App.
2001). Thus, the trial court was entitled to believe trial counsel’s testimony that
Appellant was offered the opportunity to testify at the guilt-innocence phase and
expressly chose not to testify. We hold that Appellant has not shown that the trial
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court abused its discretion when it did not grant his motion for new trial based on
his ineffective assistance of counsel claim.
We overrule Appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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