Brown, Calvin Lynn v. The State of Texas--Appeal from 240th District Court of Fort Bend County

Affirmed and Opinion filed January 30, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-00745-CR

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CALVIN LYNN BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 32,823

O P I N I O N

Appellant, Calvin Lynn Brown, was charged by indictment with murder; he entered a plea of not guilty. A jury convicted appellant and assessed his punishment at 62 years= imprisonment and a $10,000 fine. On appeal, appellant contends (1) the evidence was factually insufficient to establish appellant=s identity as the killer, and (2) he received ineffective assistance of counsel. We affirm.

On October 29, 1999, around 6:00 p.m., Jerry Travis rode his bike along the banks of the Buffalo Bayou, looking for wild hogs. As he rode, he saw a depression along the bank about six inches shallower than the rest of the surface and about three feet in diameter. As Travis got closer, he realized an arm and hand stuck out of the depression. Police came to the scene and later identified the victim as Teresa Ladoux Brown, appellant=s wife.

Brown died from an obstruction in her airway, likely caused by choking on dirt. Her body was marred by puncture wounds, cutting wounds, and most of her right breast was missing. Subsequently, appellant was charged with intentionally and knowingly causing the death of Brown by asphyxiation.

In his first issue, appellant argues the evidence was factually insufficient to establish his identity as the killer. When conducting a factual sufficiency review, the verdict is set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000). The evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.CAustin 1992, no pet.). We consider the factfinder=s weighing of the evidence and can disagree with the factfinder=s determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). However, we are not free to reweigh the evidence and set aside a verdict merely because a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We must defer to jury findings and find the evidence factually insufficient only where necessary to prevent manifest injustice. Id.

Appellant argues that the State failed to show that he was the man seen at Brown=s grave. On the night of Brown=s murder, Austin Mater, a regular runner along Buffalo Bayou, saw appellant with a shovel at the grave site. Mater also saw appellant=s white car hidden in the nearby trees. Although Mater initially identified the car as a white Pontiac Grand Am, appellant actually owns a white Pontiac Grand Prix. Although Mater intentionally avoided making eye contact with appellant, he was able to describe appellant=s clothing. Mater also testified that appellant was the man he saw digging by the bayou. On cross-examination, however, Mater admitted that he described the man as six feet tall, when appellant is slightly taller than that.

The State offered other evidence establishing appellant as the killer. Ladoux, the victim=s brother, went to appellant=s house four days after Brown=s death. In appellant=s garage, Ladoux found a wheelbarrow, shovel, and muddy tennis shoes. The day after Brown=s death, appellant washed his car for at least four hours, when it normally took at most an hour and a half. Additionally, police found five knives in appellant=s car. A luminol test, which causes a fluorescent reaction to blood, indicated the presence of blood in appellant=s car in two places: on the driver=s side floorboard (where carpet had been cut out), and in the trunk. Appellant testified the blood probably came from a severely wounded pet dog that he transported to the veterinarian. However, veterinary records showed the dog was injured a year before appellant purchased his automobile. Appellant also owned a box cutter, which tested positive for blood, that could cause wounds in size and depth of those on Brown=s body. Finally, appellant left work on the day of Brown=s murder at 4:10 p.m., giving him enough time to bury her at Buffalo Bayou around 6:30 p.m.

Appellant argues he was misidentified as the killer and that one of Brown=s lovers must have murdered her. He argues that he was not jealous, as suggested by the State. However, none of the other possible suspects owned a white car and all lived outside of the Houston area. Further, there was no evidence to indicate that any of Brown=s paramours was in the Houston area the weekend of her disappearance. Appellant suggests several reasons why someone else murdered Brown, but apparently the jury did not find his theories persuasive, as was its right. Moore v. State, 804 S.W.2d 165, 166 (Tex. App.CHouston [14th Dist.] 1991, no. pet.) (holding jury is entitled to accept the State=s version of the facts and reject appellant=s version or reject any testimony of the witnesses). Likewise, after considering all the evidence, we find it factually sufficient to support the jury=s verdict. Accordingly, appellant=s first issue is overruled.

In his second and final point, appellant argues he received ineffective assistance of counsel when presenting argument at the punishment phase of the trial. Focusing on whatever residual doubt may have been in the minds of jurors, counsel=s entire punishment argument was, Ladies and gentlemen, y=all guessed him guilty. Now guess his sentence. We find appellant failed to meet the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 688B93 (1984).

Under Strickland, appellant must demonstrate (1) counsel=s performance was deficient and (2) the deficient performance prejudiced the defense. See id. Essentially, appellant must show his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding could have been different. Id. at 693; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997). Judicial scrutiny of counsel=s performance must be highly deferential, and we are to indulge a strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, to rebut this presumption, appellant must show, by a preponderance of the evidence, why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). Usually, a silent record which provides no explanation behind counsel=s actions fails to overcome the strong presumption of reasonable assistance. Id. at 813B14. Thus, to successfully demonstrate counsel=s ineffectiveness, an appellant generally must present evidence, usually through a motion for new trial or a habeas corpus proceeding, illustrating trial counsel=s strategy. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).

Appellant did not develop this issue by way of a motion for new trial. Accordingly, appellant has failed to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy. See id. Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed January 30, 2003.

Panel consists of Chief Justice Brister and Justices Hudson and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).