Mary Dianne Long v. The State of Texas--Appeal from 35th District Court of Brown County

Opinion filed March 22, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-04-00203-CR

__________

   MARY DIANNE LONG, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR-17,191

O P I N I O N

The jury convicted Mary Dianne Long of assault on a public servant, sentenced her to confinement for four years, and fined her $2,500. We affirm.

I. Background Facts

Long was an inmate in the Brown County Jail. Sergeant William J. Benson heard noises that sounded like a fight coming from pod A-6. He instructed Officers Debra Smith and Anna Hernandez to move Long from pod A-6 to an administrative segregation cell. Officer Smith and Officer Hernandez went to pod A-6 and could hear loud yelling and arguing as they approached. They decided to enter and remove Long. Inside, they saw Long standing on a table over two other inmates. Officer Smith instructed the inmates to return to their bunks. The inmates complied, but Long started yelling at the officers and appeared agitated.

Officer Smith instructed Long to gather her belongings and to leave the cell. As Long was leaving, her blanket dropped. Officer Smith picked it up and handed it to Long. When she did so, Long attacked her. Long hit Officer Smith in the face and grabbed her hair. The women hit the floor with Long on top. Sergeant Benson responded and broke up the altercation.

Officer Smith lost two teeth, and a third tooth was loose. She injured her shoulder and required three and one-half months of physical therapy. She was also cut and had some hair pulled out.

II. Issues

Long challenges her conviction with three issues. Long contends that the evidence was legally or factually insufficient to support the jury=s verdict, that the trial court erred by admitting evidence of extraneous conduct at the guilt/innocence phase, and that her counsel was consti-tutionally ineffective.

III. Analysis

A. Was the Evidence Legally and Factually Sufficient?

Long was indicted for assault by causing bodily injury to a public servant. This requires proof that Long intentionally, knowingly, or recklessly caused bodily injury to a person she knew was a public servant lawfully discharging an official duty or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant. Tex. Pen. Code Ann. ' 22.01 (Vernon Supp. 2006). Long argues that the evidence is insufficient because only Officer Smith testified that Long initiated the altercation. The record contains other supporting evidence, but even Officer Smith=s testimony, taken alone, would be sufficient.

In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether 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 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

When the evidence is viewed in a light favorable to the verdict, a reasonable juror could have determined beyond a reasonable doubt that Long intentionally injured Officer Smith while she was performing her duties as a corrections officer. There was no dispute that an altercation occurred between Officer Smith and Long, that Officer Smith was in the scope of her duties as a corrections officer, that the altercation occurred while Long was being moved to an administrative segregation cell, and that Officer Smith was injured. The dispute was over who initiated the conflict and whether Long=s actions were justified as self-defense.

Officer Smith testified that the altercation broke out when she and Officer Hernandez attempted to move Long from pod A-6 to an administrative segregation cell. Officer Smith testified that Long had been arguing with another inmate, appeared agitated, and started yelling at the officers when told to gather her belongings. As Long was leaving the cell, she hit Officer Smith in the face and grabbed her hair. The two ended up on the floor, and Long hit Officer Smith=s head on the floor.

Officer Hernandez was unable to see the entire incident, but she did corroborate key portions of Officer Smith=s testimony. Officer Hernandez testified that Long was yelling when they arrived at her cell. Officer Hernandez testified that Long was unhappy about being moved and accused the officers of discriminating against her because she was the only black inmate. Officer Hernandez saw Officer Smith hand Long her blanket and then saw Long grab Officer Smith by the neck. Officer Hernandez saw Officer Smith and Long fall to the floor and saw Long on top of Officer Smith. Officer Hernandez also saw Long hit Officer Smith while they were on the ground. This evidence was legally sufficient to support Long=s conviction.

When the evidence is reviewed in a neutral light, it is still sufficient to support the jury=s verdict. Long testified in her own defense. She did not dispute the incident but contended that she acted purely in self-defense. Long testified that she was afraid of Officer Smith because, when Long was booked into the jail, Officer Smith slammed her head into the wall. Long testified that she gathered her belongings when told to do so and that, as she was leaving the cell, Officer Smith hit her in the back of the head and grabbed her hair. Long denied striking Officer Smith. Long testified that she was just trying to defend herself and that, when they fell to the floor, she saw a pocket knife on the floor and restrained Officer Smith so that she could not get to the knife.

The jury was responsible for resolving any conflicts in the testimony and, as such, is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Because there was conflicting evidence, we may not sustain a factual sufficiency challenge unless the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Watson, 204 S.W.3d at 414. When the jury is essentially presented with a Aswearing match,@ the testimony of one party is ordinarily insufficient to sustain this burden. See Fuentez v. State, 196 S.W.3d 839, 846-47 (Tex. App.CEastland 2006, no pet.) (defendant=s testimony alone was insufficient to establish a factual sufficiency challenge). Long has presented this court with no reason why the jury could not have accepted Officer Smith=s testimony over hers. Long=s first issue is overruled.

B. Did the Trial Court Err by Admitting Extraneous Conduct During the Guilt/Innocence Phase of the Trial?

Long contends in her second issue that the trial court erred by allowing evidence of the circumstances surrounding her initial arrest, including a high-speed pursuit and the fact that she was placed upon the ground. After Long rested, the State called Trooper Carl Keesee as a rebuttal witness. It is to this testimony that Long objects. The State responds that Trooper Keesee=s testimony was properly admitted to explain a bump on Long=s head that she blamed on Officer Smith, to show a bias to law enforcement officials, and to impeach Long=s credibility.

A trial court=s decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). We will not reverse the trial court=s ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

Long testified on direct examination that, when she was being booked into the jail, Officer Smith slammed her head into the wall and that she had filed a complaint against Officer Smith. During cross-examination, the State asked Long about that night and asked if she had been handcuffed and made to lay on the ground. Long denied ever having been placed on the ground. She also denied accusing the DPS troopers of doing or preparing to do something inappropriate to her that night. When the State asked Long about her claim that Officer Smith had slammed her head into the wall, Long volunteered that the incident had left a knot.

When Long testified, she put her credibility in issue. See Norris v. State, 902 S.W.2d 428, 441 (Tex. Crim. App. 1995) (defendant=s decision to testify made his credibility an issue for the jury to decide). Tex. R. Evid. 613 allows the admission of prior inconsistent statements and extrinsic evidence establishing a witness=s bias. Prior to allowing Trooper Keesee=s testimony, the trial court advised counsel that it was only allowing it for the purpose of impeachment and instructed the jury that it was being offered solely for passing upon Long=s credibility.

Trooper Keesee testified that on January 3, 2004, he stopped Long for a speeding violation. During that stop, he advised her that she was being arrested, and she fled the scene. During the ensuing chase, she drove at speeds up to 110 miles per hour. Long=s tires were spiked, and she eventually stopped. She exited her car and was instructed to lay down. Trooper Keesee then handcuffed her and placed her in a police vehicle. During this stop, Long screamed and yelled at the police officers. She told them that her son, who was with her in the car, did not have anything to do with the incident and asked them not to beat him up. She also claimed that they were about to beat her up.

The trial court did not abuse its discretion by admitting Trooper Keesee=s testimony. It was contradictory to statements made by Long, showed a bias against law enforcement officials because it illustrated a pattern of false accusations, and was prefaced with a specific limiting instruction. Long=s second issue is overruled.

C. Did Long Receive Constitutionally Ineffective Assistance of Counsel?

Long complains that her trial counsel was constitutionally ineffective because he conducted a cursory and unusual voire dire; made only a perfunctory opening statement; and opened the door for the admission of prejudicial testimony about a prior traffic stop, high-speed pursuit, and arrest.

To determine whether Long=s counsel rendered ineffective assistance at trial, we must first determine whether Long has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and Long must overcome the presumption that, under the circum-stances, the challenged action might be considered sound trial strategy. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). A[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@ Strickland, 466 U.S. at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking as to overcome the presumption that counsel=s representation was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.

Long complains that her counsel=s voire dire was cursory and consisted primarily of questions about which veniremembers liked war and action movies or participated in boxing and kickboxing. A brief voir dire is not automatically an ineffective one. The length of voir dire may be dictated by trial strategy. Jackson v. State, 491 S.W.2d 155, 156 (Tex. Crim. App. 1973). Furthermore, topics covered by the trial court or prosecutor need not be repeated. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (a brief voir dire can be a legitimate trial strategy because counsel does not want to appear repetitious or wasteful of the jury=s time). Defense counsel himself told the veniremembers that the prosecutor had covered most of the issues he needed to address.

The topics covered during voir dire are inherently a trial-strategy-driven decision. We will not speculate about counsel=s trial strategy. Bone, 77 S.W.3d at 833. Defense counsel introduced potentially affirmative defenses, such as self-defense; inquired if any veniremember had military or law enforcement experience; and asked if any had experience as a contestant or referee in boxing, kickboxing, and wrestling. He also asked if anyone had observed adults fighting. Because Long did not dispute that she and Officer Smith had become involved in a physical altercation but contended that her conduct was justified, it is not difficult to visualize why counsel would legitimately want to explore these topics during voir dire. We certainly cannot conclude that counsel=s voir dire was so outrageous that no competent attorney would have utilized it. Goodspeed, 187 S.W.3d at 392.

Similarly, the fact that counsel gave a brief opening statement is not evidence of ineffective assistance. Because an opening statement provides the State a preview of the defense=s strategy, counsel may make a tactical decision to make no opening statement at all. See Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.CFort Worth 1996, no pet.). If counsel may legitimately make no opening statement, it necessarily follows that they may also make a short one.

Long=s final criticism is that her counsel opened the door to prejudicial testimony through her testimony. The trial court advised Long of her rights prior to her taking the stand and admonished her on the consequences of her decision to testify. Long does not elaborate on how her counsel opened the door: by putting her on the stand, by asking particular questions during her direct examination, or otherwise. The failure to adequately brief an argument waives any complaint. See Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995). Without identifying which decision Long contends improperly opened the door, it is impossible for this court to conclude that counsel was ineffective. Long=s third issue is overruled.

IV. Holding

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

March 22, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.