Christopher Ryan Simonek v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00379-CR
CHRISTOPHER RYAN SIMONEK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1309515D
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MEMORANDUM OPINION1
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A jury convicted Appellant Christopher Ryan Simonek of one count of
injury to an elderly individual and of one count of assault on a family member with
a previous conviction and, thereafter, assessed punishment at imprisonment for
two years and six years, respectively. In two points of error, Appellant contends
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See Tex. R. App. P. 47.4.
trial counsel rendered ineffective assistance and the trial court committed a
double jeopardy violation. We affirm.
I. The Indictment
In count one, the State alleged that on or about January 1, 2013, in Tarrant
County, Appellant intentionally or knowingly caused bodily injury to E.S., an
elderly person, by striking him with Appellant’s fist. This is the offense of injury to
an elderly individual. Tex. Penal Code Ann. § 22.04(a)(3) (West Supp. 2014).
As alleged, the offense is a third degree felony. Tex. Penal Code Ann.
§ 22.04(f).
In count two, the State alleged that on or about January 1, 2013, in Tarrant
County, Appellant intentionally or knowingly caused bodily injury to E.S., a
member of Appellant’s family or household, by striking him with his hand, and the
State further alleged that before the commission of this offense, Appellant had
been previously convicted of an assault with bodily injury against a member of
Appellant’s family or household on December 31, 2010, in County Criminal Court
Number Ten of Dallas County. This is the offense of assault on a family or
household member with a previous conviction. Tex. Penal Code Ann.
§ 22.01(a)(1), (b)(2)(A) (West Supp. 2014). This offense is also a third degree
felony. Tex. Penal Code Ann. § 22.01(b)(2)(A). Third degree felonies are
punishable by imprisonment for any term of not more than ten years or less than
two years and fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (West
2011).
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The indictment also contained a repeat offender notice. The State alleged
that before the commission of the above offense or offenses, Appellant was
finally convicted of the felony offense of burglary of a habitation in the 372nd
District Court of Tarrant County in February 2011. If found true, Appellant’s
range of punishment increased from a third degree to a second degree felony.
Tex. Penal Code Ann. § 12.42(a) (West Supp. 2014). A second degree felony is
punishable by imprisonment for any term of not more than twenty years or less
than two years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.33
(West 2011).
II. The Evidence and Verdicts
The complainant was Appellant’s grandfather (Grandfather), who was
sixty-nine at the time of the offense. Appellant was living with Grandfather. On
New Year’s Day 2013, Appellant and Grandfather got into an argument after
Grandfather instructed Appellant to return home to clean his room. When they
confronted each other, Appellant initially bumped Grandfather’s chest with his
hands. Grandfather responded by slapping Appellant’s cheek with the open
palm of his one good hand. Grandfather’s other hand had been amputated years
earlier. At some point Grandfather said, “Come on, boy, if you want to hit me, go
ahead, get it over with.” Appellant then hit Grandfather on the side of the head
with his fist. This time Grandfather responded by telling Appellant he hit like a
girl. Appellant then hit Grandfather near the eye and drew blood. Grandfather
said he did not see the hit coming, and he said it hurt. The State also introduced
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into evidence State’s Exhibit 6—a December 31, 2010, judgment out of County
Criminal Court Ten of Dallas County showing Appellant’s conviction for assault
family violence, a Class A misdemeanor, committed on December 16, 2010, and
containing an affirmative finding of family violence.
The jury found Appellant guilty of count one—causing bodily injury to an
elderly individual. The jury also found Appellant guilty of count two—assault on a
family member after having been previously convicted of assault against a family
member. Appellant does not attack the sufficiency of the evidence to support
these convictions.
After hearing additional evidence, the jury found the repeat offender notice
true and assessed punishment on the first count at imprisonment for two years
and on the second count at imprisonment for six years. The jury assessed no
fine on either offense. The trial court ordered the sentences to run concurrently.
III. Appellant’s First Point of Error / Ineffective Assistance
In his first point of error, Appellant complains that trial counsel rendered
ineffective assistance by failing to voir dire the veniremembers regarding whether
they could give him a fair trial notwithstanding the fact he had been previously
convicted of an assault on a family member. Appellant notes that the second
count required not only the commission of an assault on a family member but
also a previous conviction for an assault on a family member. Appellant
contends trial counsel should have questioned the veniremembers about whether
the prior conviction would prejudice them.
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To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). In
other words, for a claim of ineffective assistance of counsel to succeed, the
record must demonstrate both deficient performance by counsel and prejudice
suffered by the defendant. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim.
App. 2012). An ineffective-assistance claim must be “firmly founded in the
record,” and “the record must affirmatively demonstrate” the meritorious nature of
the claim. Id. (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999)).
In evaluating the effectiveness of counsel under the deficient-performance
prong, we look to the totality of the representation and the particular
circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether
counsel’s assistance was reasonable under all the circumstances and prevailing
professional norms at the time of the alleged error. See Strickland, 466 U.S. at
688–89, 104 S. Ct. at 2065. Review of counsel’s representation is highly
deferential, and the reviewing court indulges a strong presumption that counsel’s
conduct fell within a wide range of reasonable representation. Salinas v. State,
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163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001).
Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
Menefield, 363 S.W.3d at 592–93; Thompson, 9 S.W.3d at 813. This statement
is true with regard to the deficient-performance prong of the inquiry when
counsel’s reasons for failing to do something do not appear in the record.
Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at 813. To overcome the
presumption of reasonable professional assistance, “any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d at
740 (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate
court to simply infer ineffective assistance based upon unclear portions of the
record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial
counsel “should ordinarily be afforded an opportunity to explain his actions before
being denounced as ineffective.” Menefield, 363 S.W.3d at 593 (quoting
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial counsel
is not given that opportunity, then the appellate court should not find deficient
performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003)).
The prejudice prong of Strickland requires a showing that counsel’s errors
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were so serious that they deprived the defendant of a fair trial, i.e., a trial with a
reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,
an appellant must show there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding in which the result is being
challenged. Id. at 697, 104 S. Ct. at 2070.
Appellant correctly asserts trial counsel did not address the effect the
introduction of the prior conviction would have on the veniremembers should they
become jurors. Our review of the voir dire shows, however, that the State
questioned the veniremembers extensively about the prior conviction. Some of
the veniremembers balked at the idea that a second offense against a family
member constituted a third degree felony whereas a second offense against a
neighbor remained a misdemeanor. Other jurors agreed with the added
protection. Defense counsel started his voir dire by stating that the prosecutor
had already covered the majority of what he wanted to go over. This may explain
defense counsel’s failure to address the prior family violence conviction during
his own voir dire. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005) (“[W]e cannot conclude that the failure to ask any questions in voir
dire constitutes conduct so outrageous that no competent attorney would have
engaged in it. Defense counsel’s articulated reason for declining to ask
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questions—that the prosecution’s questioning adequately covered the defense’s
concerns—could be a legitimate trial strategy under the appropriate
circumstances.”); cf. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d) (“An appellate court will not speculate about the
reasons underlying defense counsel’s decisions.”). In any event, defense
counsel then covered a number of topics, including the presumption of
innocence, reasonable doubt, self-defense, why family violence was treated
differently, consent or assent to contact, whether the veniremembers would be
prejudiced against Appellant because the offenses involved an elderly person,
and whether any of the venire would have a problem if the case resulted in a
hung jury and had to be tried over by a different jury. Given the fact the
prosecutor and the veniremembers addressed the prior family violence
conviction, which defense counsel would have necessarily observed, and given
the fact defense counsel raised other issues that probed for prejudices against
his client, we conclude that on this record, in the absence of defense counsel
having been given an opportunity to defend himself, his failure to further address
the prior family violence conviction was not outrageous, much less “so
outrageous that no other competent attorney would have engaged in it.” See
Menefield, 363 S.W.3d at 593; see also Goodspeed, 187 S.W.3d at 391 (“We
must determine whether the failure to ask any questions during voir dire and the
exercise of two peremptory challenges on jurors who had already been excused
constitute performance that is so obviously deficient that inquiry into the reasons
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for counsel’s conduct becomes unnecessary. We hold that an inquiry into the
reasons for counsel’s conduct is still needed.”)
Because Appellant has not shown his trial counsel’s representation was
deficient, we need not address whether any perceived deficiency prejudiced
Appellant’s case. We overrule Appellant’s first issue.
IV. Appellant’s Second Point of Error / Double Jeopardy
In his second point of error, Appellant contends the trial court erred by
convicting him twice for the same conduct. Appellant contends the evidence for
both the injury-to-the-elderly offense and the assault-family-member offense was
identical—Appellant assaulted his sixty-nine year old grandfather by punching his
face, causing bodily injury. Appellant complains that he received two
punishments for the same assaultive conduct and that the multiple punishments
violated his Fifth Amendment protection against double jeopardy. U.S. Const.
amend. V.
The question of multiple punishments in one trial is entirely an issue of
legislative intent. Missouri v. Hunter, 459 U.S. 359, 368–69, 103 S. Ct. 673, 679
(1983); Ex parte Hawkins, 6 S.W.3d 554, 558 (Tex. Crim. App. 1999). When the
legislature specifically authorizes cumulative punishments under two statutes,
regardless of whether the two statutes proscribe the same conduct, a court’s task
of statutory construction is at an end, and the prosecutor may seek and the trial
court and jury may impose cumulative punishments under such statutes in a
single trial. Hunter, 459 U.S. at 368–69. Section 22.04(h) plainly authorizes
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multiple punishments when the defendant engages in conduct that violates
section 22.04 (the injury-to-the-elderly offense) and another penal code section;
therefore, there is no double jeopardy violation. Tex. Penal Code Ann.
§ 22.04(h); see Hunter, 459 U.S. at 368–69; Johnson v. State, 208 S.W.3d 478,
510–11 (Tex. App.—Austin 2006, pet. ref’d). We overrule Appellant’s second
point of error.
V. Conclusion
Having overruled both of Appellant’s points of error, we affirm the trial
court’s judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 6, 2014
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