LEON TRAVIS HURD, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed December 19, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-94-02014-CR
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LEON TRAVIS HURD, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F94-03775-VJ
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O P I N I O N
Before Justices Morris, James, and Wolfe
Opinion By Justice Morris
        After a jury trial, Leon Travis Hurd appeals his conviction for aggravated assault of a peace officer. Asserting seven points of error, Hurd contends the evidence is legally insufficient to show he did not act in self-defense and that he knew the person he assaulted was a police officer. Hurd further argues the evidence is factually insufficient to show he knowingly, intentionally, or recklessly assaulted a police officer. Finally, Hurd argues he received ineffective assistance of counsel and the trial court erred in: (1) failing to empanel the jury; (2) failing to give instructions regarding parole in the punishment charge to the jury; and (3) admitting an allegedly prejudicial audiotape. Because we conclude Hurd's points of error are meritless, we affirm the trial court's judgment.
Factual Background
        Police officers obtained information from a confidential informant that Leon Travis Hurd was selling drugs in his apartment. Based on the informant's statements, the officers obtained an arrest warrant for Hurd and a search warrant for his apartment.
        On July 20, 1994 police officers executed the warrants using a "dynamic entry" approach. A dynamic entry involves making a quiet approach to the door, using a slamming device to open the door, and then making a quick entry to secure possible suspects and preserve evidence. The officers identify themselves as police throughout the procedure and wear raid gear, including vests with "POLICE" spelled out in large white letters. In this case, the officers also carried automatic or semi-automatic guns.
        Seven officers took part in the entry. One of the officers testified they all yelled "police" before and during their entrance into Hurd's apartment. As the officers entered, they discovered Angela Bookman, Hurd's girlfriend, on the living room couch. Two of the officers testified they then saw a door into a back bedroom closing slowly. This indicated to the officers that there was someone in the bedroom.
        Two officers, including Sergeant James Shubzda, approached the bedroom, yelled "Police," and began kicking at the bedroom door. The door opened on the second or third kick. Shubzda testified he stepped into the room carrying his gun shouting, "Police. Police." Shubzda further testified the room was well lit. As Shubzda went into the room, Hurd crouched down on the floor and began shooting. Hurd's shots hit Shubzda in the leg and hand. In response, Shubzda began firing his gun up in the air. Because of the injury to his hand, Shubzda could not control his gun. The other officers then pulled Shubzda into the hallway where he collapsed on the floor. While laying cover fire, the officers evacuated the apartment taking Bookman with them.
        The police threw a diversionary device from outside the apartment into the bedroom window to force Hurd out. The officers stood outside the apartment door again yelling they were police officers and ordering Hurd to come out. Hurd eventually crawled out of the bedroom. The officers again identified themselves and ordered Hurd to put his hands up. Hurd resisted arrest and it took several officers to handcuff him. Hurd began kicking violently and the officers cuffed his ankles. According to one of the officers, Hurd kicked and fought while being taken outside and, at times, had to be dragged because he refused to walk. A police officer who observed the struggle stated that everyone involved appeared to be receiving abrasions from the fight.
        Hurd was examined by paramedics before leaving for the police station and was found to have marks and scrapes including a cut on the back of his head. One of the paramedics testified the marks were consistent with a struggle on carpet and cement. Hurd was found to be otherwise normal and unhurt.
        After Hurd was placed in custody, police officers searched the apartment to determine if anyone else was inside. They found no one. But the officers did find packages of crack cocaine in Hurd's bedroom dresser. Police officers also knocked on apartment doors next to Hurd's to determine if anyone was home. They received no answers.
        At the police station, Hurd was interviewed by detective H. E. Johnson. Johnson testified Hurd seemed coherent and was not confused. Hurd initially told Johnson that, before the officers came into the bedroom, he heard them yell "Get down." Hurd then retracted that statement commenting that, if he had heard that, he would have known the men in his apartment were police officers. Hurd started two written statements and then withdrew them claiming they were inaccurate. Hurd finally signed a third written statement in which he claimed he thought he was being burglarized when the police raided his apartment.
        At trial, Hurd testified he was asleep in his bedroom when he was awakened by his girlfriend screaming in the next room. Hurd then heard things falling and breaking followed by gunshots. Hurd further testified he never heard anyone yell "police."
        Thinking he was being burglarized, Hurd grabbed his gun from under his mattress. When the officers burst in his bedroom door, Hurd crouched down and started firing at them. Hurd stated he never saw the officers' vests with "POLICE" written on them.
        After the officers left his room, Hurd testified he looked out into the living area and saw someone being dragged out of the apartment. When the diversionary device was thrown through his bedroom window, Hurd ran into the living room calling for help. Hurd stated that when he was approached by a police officer he put his hands behind his back. When asked to put his hands in the air, he complied. Then, according to Hurd, the officer hit him on the back of the head rendering him unconscious.
        Hurd testified he did not remember being examined by paramedics outside his apartment. He stated he did not remember anything until he was pulled from a car outside the police station. Hurd further stated he could not walk at that time because the handcuffs on his ankles were too tight.
        Hurd presented a doctor to testify. The doctor testified that a blow to the head with sufficient force can cause a concussion. He further testified that a concussion can cause memory loss, irritability, and restlessness. He stated the restlessness can be hyperactive and struggling with the injured person can aggravate the situation.
        Hurd also presented the testimony of a neighbor. According to the neighbor, he was in his apartment next door to Hurd on the day of the shooting. He testified he heard a loud thump on Hurd's door, then some communication among the officers, then gunshots. He said the gunshots occurred approximately five seconds after the thump on the door. Although the neighbor spoke little English, he stated he understood the word "police" and he did not hear anyone yell "police."
Discussion
        In his first and third points of error, Hurd contends the evidence is legally insufficient to show that he committed aggravated assault of a police officer. Specifically, Hurd contends a rational trier of fact could not have concluded that he knew the men in his apartment were police officers and that he did not act in self-defense.
         At the time Hurd allegedly committed this offense, the elements of aggravated assault of a police officer were: (1) knowingly, intentionally or recklessly causing serious bodily injury to a police officer; (2) while the officer is in the lawful discharge of an official duty; (3) when the assailant knows or has been informed that the person being assaulted is a police officer. Tex. Penal Code Ann. §§ 22.01, 22.02 (Vernon 1989 & Supp. 1994) (current version at Tex. Penal Code Ann. §§ 22.01, 22.02 (Vernon 1994). The offense became a first degree felony if the assailant used a deadly weapon. Id. § 22.02(c). Under the statute, an assailant was presumed to know the person he assaulted was a police officer if the victim was wearing a distinctive uniform indicating his employment. Id. § 22.02(b).
        The standard of review for legal sufficiency claims is well known. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App.), cert. denied, 507 U.S. 975 (1993). When a defendant raises the issue of self-defense, appellate courts review all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found beyond a reasonable doubt for the State on the essential elements of the offense and against the defendant on his self-defense contention. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The State does not have the burden to produce evidence refuting the defendant's self-defense claim. Id. at 913. Rather the State bears the burden of persuasion in disproving the self-defense evidence. Id.
        Hurd's legal insufficiency arguments center on his alleged unawareness that the men breaking into his apartment were police officers. Hurd argues that, because he presented evidence that he believed he was being burglarized and that Sergeant Shubzda was coming after him with a gun, his shooting of Shubzda could only be characterized as self-defense, not aggravated assault of a police officer.
        The State presented evidence that the police officers who raided Hurd's apartment loudly and constantly announced they were police officers before encountering Hurd. The evidence also showed that the apartment, including Hurd's bedroom, was well lit and the officers were wearing raid gear with "POLICE" written in large white letters across their chests. The State presented testimony that Hurd slowly closed his bedroom door after the officers entered his apartment indicating he was awake and aware of their presence. Upon being forced out of his bedroom, Hurd resisted arrest and continued to struggle even after being taken into custody. Finally, the State presented evidence that Hurd changed the statement he gave police officers because he did not want to admit he knew before the shooting started that the men in his apartment were police officers. The jury was free to accept this evidence and reject the testimony presented by Hurd. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). Reading the evidence in the light most favorable to the verdict, we conclude a rational juror could have found Hurd knew or had been informed that Sergeant Shubzda was a police officer and against his self-defense claim beyond a reasonable doubt. We overrule Hurd's first and third points of error.
        In Hurd's second point of error, he argues the evidence is factually insufficient to show that he knowingly, intentionally, or recklessly assaulted a police officer. Hurd relies on the same alleged deficiencies in the evidence to support this point of error as were urged in his legal insufficiency points. The standard of review in analyzing a claim of factual sufficiency is clearly established. See Scott v. State, No. 05-94-01132-CR, slip op. at 4-5 (Tex. App.--Dallas Sept. 18, 1996, no pet. h.). We simply review the evidence in support of and contrary to the jury's finding to determine whether the verdict is so contrary to the great weight of the evidence as to be clearly wrong and unjust. Id.
        Hurd contends the evidence is factually insufficient to support his conviction because his self-defense theory was reasonable and the jury's verdict was contrary to the overwhelming weight of the evidence. We note initially that we may not set aside a jury verdict for factual insufficiency simply because a different result might be more reasonable. Id. at 5. Having examined all the evidence under the applicable standard of review for a factual sufficiency point of error, we cannot conclude the evidence produced by the State is so uncertain, inconsistent, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand. We also cannot conclude the jury's findings are against the great weight of the evidence. Because the jury's findings are supported by factually sufficient evidence, it is unnecessary for us to detail further the evidence relevant to this issue. See id. at 5-6. We overrule Hurd's second point of error.
        In his fourth point of error, Hurd argues he received ineffective assistance of counsel. Hurd points to three alleged errors made by his counsel during the punishment phase of his trial. First, Hurd contends his lawyer should have objected to certain statements made by Officer Shubzda. Second, Hurd contends his counsel should have urged the jury to grant him probation. And third, Hurd contends his counsel stopped representing his interests when he commented to the jury that Hurd's testimony probably would not make a difference in their decision.
        When analyzing the effectiveness of counsel during the punishment phase of trial, we determine whether counsel was likely to give, and actually did give, reasonably effective assistance. Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992). Reasonably effective assistance does not mean errorless counsel or counsel whose competency is to be judged by hindsight. Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987). It is the appellant's burden to show ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).
        During the punishment phase of Hurd's trial, Officer Shubzda testified he did not believe Hurd had any concern for the authority or safety of police officers. Shubzda stated he did not want Hurd "on the street" because he feared for the safety of a young officer. Shubzda further stated "[i]t won't affect me any, because I'll probably be retired here in about five or ten years . . . ." Hurd argues his counsel was ineffective for failing to object to this testimony because it was inadmissible in its entirety and Shubzda's statement regarding his retirement emphasized the laws of parole.
        A failure to object to testimony may amount to ineffective assistance of counsel only if the appellant demonstrates that an objection to the testimony is sustainable. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). Hurd argues Shubzda's testimony was inadmissible under both article 56.03 and article 42.03 of the Texas Code of Criminal Procedure. Neither of these articles is applicable, however, because they address statements made by victims after punishment has been assessed. See Tex. Code Crim. Proc. Ann. art. 42.03 § 1(b) (Vernon Supp. 1997) and Tex. Code Crim. Proc. Ann. art. 56.03 (Vernon Supp. 1997).
        Evidence that may be considered in determining punishment is the subject of article 37.07 of the Texas Code of Criminal Procedure. Under article 37.07, the trial court may admit any evidence it deems relevant to sentencing including victim impact testimony regarding the "circumstances of the offense." Brown v. State, 875 S.W.2d 38, 39-40 (Tex. App.--Austin 1994, no pet.); see also, Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. App. 1991). Hurd contends Shubzda's testimony went beyond the circumstances of the offense and included the type of punishment he felt should be imposed. Hurd cites Mayo v. State, 861 S.W.2d 953 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd) to support his argument that his counsel's failure to object to Shubzda's testimony harmed him.
        In Mayo, the court addressed victim testimony similar to Shubzda's. The court found that the appellant waived any error associated with the admission of the testimony by failing to object at trial. Id. at 955. The court did not address the admissibility of the testimony or any ineffectiveness of the trial counsel for failing to object. Id.
        Even if it was error for Hurd's counsel to fail to object to Shubzda's testimony, an isolated failure to object to evidence does not amount to ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Hurd's counsel put Hurd on the stand immediately after Shubzda to address Shubzda's statements. The failure to object during Shubzda's testimony may have been part of counsel's trial strategy not to appear cruel or indifferent to the victim. See Chambers v. State, 903 S.W.2d 21, 32 (Tex. Crim. App. 1995) (defendant must overcome presumption that challenged action might be considered sound trial strategy). As such, counsel's failure to object did not render his assistance ineffective.
        Hurd also complains that his counsel failed to urge probation in his argument to the jury on punishment. Hurd's counsel, however, filed an application for probation and probation instructions were included in the jury charge. Accordingly, Hurd's counsel did everything necessary to ensure that probation would be considered. Hurd's counsel urged the jury to consider the fact that Hurd had a young daughter when deciding his punishment. His decision not to mention probation specifically in his closing comments may, once again, have constituted trial strategy. Id.
        Finally, Hurd argues his counsel made negative remarks about Hurd's testimony in his closing statement to the jury. Specifically, Hurd's counsel said "[m]y client made the decision he wanted to get up here and say something. I really don't think it's going to make a difference in what y'all do, but he wanted to do that. And he wanted to personally thank Sergeant Shubzda, but I think we can understand why he was not in the courtroom." Although Hurd contends these remarks disparaged his testimony, they may have been intended to do just the opposite. The comments appear to emphasize Hurd's sincerity in wanting to testify regardless of how futile his effort may have been. Once again, this appears to be a matter of trial strategy, which cannot form the grounds for an ineffective assistance claim. Id. We overrule Hurd's fourth point of error.
        In his fifth point of error, Hurd argues the trial court erred in failing to impanel the jury. However, on February 6, 1996, a supplemental statement of facts was filed in this Court showing that the jury was sworn and impaneled. Furthermore, Hurd does not demonstrate that this matter was made an issue at trial or point to any affirmative evidence showing that the jury was not impaneled. Accordingly, we must presume the jury was impaneled properly. See Tex. R. App. P. 80(d). We overrule Hurd's fifth point of error.
        In his sixth point of error, Hurd argues the trial court erred in failing to include parole instructions in the jury as mandated by article 37.07 § 4(b) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(b) (Vernon Supp. 1997). This Court has held that failure to give the instructions pursuant to the mandatory provisions of article 37.07 constitutes error. See Grigsby v. State, 833 S.W.2d 573, 576 (Tex. App.--Dallas 1992, pet. ref'd). This error, however, is subject to a harm analysis.
        In this case, Hurd failed to object to the jury charge on punishment. Therefore, his conviction may only be reversed if he can demonstrate egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). As we noted in Grigsby, the State benefits from the instruction contained in section 4 of article 37.07, not the appellant. Grigsby, 833 S.W.2d at 576.; see also Arnold v. State, 786 S.W.2d 295, 298 (Tex. Crim. App. 19), cert, denied, 110 S. Ct. 110 (1990). The parole instructions were designed to increase jury sentences. Grigsby, 833 S.W.2d at 576. Moreover, the trial court instructed the jury not to discuss how long the defendant would be required to serve any sentence it decided to impose. We presume the jury followed the trial court's instruction. See Ainsworth v. State, 517 S.W.2d 274, 277 (Tex. Crim. App. 1979).
        Hurd attempts to show egregious harm by arguing that his story at trial might have been the truth. The jury was free to disbelieve his story, however, and the truth or falsity of his testimony has no bearing on the harm caused by the trial court's failure to instruct on parole. Hurd additionally attempts to show harm by arguing that the life sentence he received is extremely harsh for a man with no prior felony convictions. Although it is true Hurd did not have a record of felony convictions, the jury was informed that Hurd had two prior misdemeanor convictions and was on probation for drug possession. Furthermore, Hurd admitted at trial he sold drugs because he wanted fancy cars and lots of money. Based on this evidence, the jury could rationally conclude Hurd had not responded to lesser punishments for other offenses. We cannot conclude Hurd suffered egregious harm from the trial court's failure to include the instructions on parole law. We overrule his sixth point of error.
        In his seventh point of error, Hurd argues the trial court erred in admitting audiotape evidence offered by the State to prove Hurd was able to hear officers yelling "police" from his bedroom. The tape was created by Detective James Boyle who conducted an experiment in which he placed a camcorder in Hurd's bedroom. Boyle testified the camcorder accurately recorded noises as they would be heard by the human ear. After Boyle set up the recorder, two of the police officers who had participated in the raid began yelling "police" from outside the apartment. The officers then entered the apartment and proceeded along the same path as on the day of the raid yelling "police." Boyle testified he was able to hear the officers and the voices were audible on the tape. Boyle conceded, however, that he did not know if the tape accurately reflected the conditions on the day of the raid or if the volume on the tape was the same level as the volume of the officer's voices on the day of the raid.
        Hurd contends the trial court erred in admitting the audiotape because the tape was made after the events at issue and under different conditions that existed on the day of the offense. Therefore, Hurd urges the tape is more prejudicial than probative.
        Appellate review of the a trial court's admission of experiments or demonstrations is limited to whether the trial court abused its discretion. Grunsfield v. State, 813 S.W.2d 158, 164 (Tex. App.--Dallas 1991), aff'd, 843 S.W.2d 521 (Tex. Crim. App. 1992). To be admissible, an experiment or demonstration must be conducted under conditions that are similar to the event to be duplicated. Id. The conditions need not be identical, however, as dissimilarities affect the weight and not the admissibility of the evidence. Id.
        The audiotape made by Detective Boyle was relevant to disprove Hurd's claim that he did not hear officers yelling "police" while he was in his bedroom. The tape, therefore, was not introduced solely to inflame the jury. Although the tape was not made under conditions identical to those existing on the day of the offense, it was made under similar conditions in that the experiment was conducted in Hurd's apartment and involved officers who took part in the raid.
        Hurd contends the experiment did not take into account the noise created by his girlfriend's screams, the activity of the policemen, and the gunfire. All of these noises began, however, after the officers initially began yelling "police." Furthermore, even though these sounds may have interfered with Hurd's ability to hear the officers, this is taken into account by the fact that the experiment involved only two officers yelling "police" rather than seven. Ultimately, the dissimilarities noted by Hurd go to the weight to be given the evidence by the jury, not the tape's admissibility. See id. Hurd had an opportunity to cross-examine Detective Boyle and put on evidence of the differences between the conditions on the day of the offense and the conditions under which the tape was made. We overrule Hurd's seventh point of error.
        We affirm the trial court's judgment.
        
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
 
File Date[12-19-96]
File Name[942014F]