Turk, Brady v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Memorandum Opinion filed October 25, 2005

Affirmedand Memorandum Opinion filed October 25, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00856-CR

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BRADY TURK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 981,345

M E M O R A N D U M O P I N I O N

Appellant Brady Turk was convicted of aggravated assault with a deadly weapon and sentenced to three years= probation. In three issues, appellant complains that (1) the trial court erred in allowing testimony from a witness who destroyed evidence, (2) the trial court erred by allowing the jury to receive additional evidence after deliberations began, and (3) he received ineffective assistance of counsel. We affirm.

Appellant lived in a boarding house with several people, including the complainant, Jeffrey Houston. In November 2003, appellant sprayed Houston with mace and then stabbed him in the abdomen with a knife. Appellant claims he was acting in self-defense because Houston had attempted to assault him with a six-foot metal hat rack.

In his second issue, appellant claims the trial court erred in allowing Paul Bazert, the assistant manager of the property, to testify after he Aadmitted under oath that he intentionally destroyed evidence,@ namely the hat rack. We reject this argument for three reasons. First, appellant did not make this objection to the trial court, and he cannot raise it for the first time on appeal. See Tex. R. App. P. 33.1(a). Thus, any error is waived. Martinez v. State, 91 S.W.3d 331, 337 (Tex. Crim. App. 2002). Second, Bazert testified that he removed the hat rack from the property, not that he destroyed it. Finally, even if Bazert did destroy the hat rack, appellant has provided no authority or analysis as to why such an action should preclude Bazert from testifying. We overrule appellant=s second issue.

In his third issue, appellant asserts that the trial court improperly allowed Bazert to testify after both sides had rested and jury deliberations had begun. See Bustamante v. State, 106 S.W.3d 738, 743 (Tex. Crim. App. 2003). However, the record reflects that this testimony was received during the State=s rebuttal, after which the State rested, the parties closed, and the jury retired to begin deliberating. Appellant=s argument has no support in the record, and we overrule his third issue.

In his first issue, appellant complains of ineffective assistance of counsel based on allegations of inadequate attorney/client communication and deficient performance before and during the trial. Ineffective assistance claims are governed by the now familiar two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, appellant must show (1) that trial counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Id. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance. Salinas, 163 S.W.3d at 740. To defeat this presumption, A>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, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).

Without specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813B14 (noting that when the record contains no explanation for counsel=s decisions, an appellate court should be cautious in deciding whether the Amotivation behind counsel=s actions@ was Aof strategic design or the result of negligent conduct@). Appellant filed a verified motion for new trial raising some but not all of the allegations of ineffective assistance of counsel he now asserts. The motion was overruled by operation of law without a hearing. Thus, the only evidence presented in support of appellant=s motion for new trial was his verified motion. If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of a claim for ineffective assistance of counsel. Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).

Appellant claims that counsel did not return his calls and did not discuss the case with him for the first time until fifteen minutes before voir dire. To prove ineffective assistance of counsel based on inadequate communication, appellant must prove that additional communication would have changed the outcome of the trial. Edwards v. State, No. 04-04-00157-CR, 2005 WL 236672, at *3 (Tex. App.CSan Antonio Feb. 2, 2005, no pet. h.) (not designated for publication); see also Ex parte Perry, 455 S.W.2d 214, 215 (Tex. Crim. App. 1970). Appellant fails to do so. He asserts that he was unable to plan a trial strategy with counsel, resulting in her resting the case while he was on the stand before he was able Ato tell the Jury a majority of the testimony I wanted to get before them.@ However, appellant provides no details about what his testimony would have been or how such testimony would have impacted the trial. Further, counsel may have made a reasonable strategic decision to end appellant=s testimony when she did. In the absence of any evidence of her motivation, we will not second guess this decision.[1] See Goodspeed v. State, No. PD-1882-03, __ S.W.3d __, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005).

Appellant also complains that his counsel failed to file pretrial motions to decrease his bond and for discovery of his telephone records and the complainant=s medical records. To succeed on an ineffective assistance of counsel claim based on failure to file a motion, appellant must prove, as a preliminary matter, that the motion would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Pipkin v. State, 997 S.W.2d 710, 712 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). Appellant has no evidence that a motion to decrease his bond would have been granted. To attempt to prove prejudice, appellant claims that his incarceration prevented him from preparing a defense and that Acertain legal documents in my possession tending to establish my innocence were invariably lost.@ However, appellant neither explains what additional preparations he would have undertaken nor describes what documents were lost or how they would have benefitted his defense. Further, there is no evidence in the record to establish what the telephone or medical records would have proven.

Appellant complains of various issues relating to counsel=s trial performance. The trial court allowed thirty minutes for voir dire, and appellant argues that counsel should have objected and requested more time because thirty minutes is inadequate to question sixty jurors. The trial court has broad discretion over voir dire proceedings, Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002), and appellant has not shown that counsel would have been successful in persuading the trial court to allot additional time for voir dire. Appellant claims that counsel refused to ask potential jurors two questions he suggested, but the record contains no evidence of what these questions were or that he communicated these questions to counsel and she refused to ask them. See Salinas, 163 S.W.3d at 741 (noting that assertions in the briefs not supported by the record are insufficient to prove ineffective assistance of counsel).

Appellant also asserts that counsel was deficient in her evidentiary choices at trial. Appellant complains that counsel refused to cross-examine two witnesses regarding prior dishonest acts he claims they committed, stating, A[N]ever ask a question that you don=t know the answer to.@ Appellant may disagree with this strategy, but we cannot say that no reasonable attorney would have done the same thing, particularly given appellant=s lack of proof of these allegations. See Goodspeed, 2005 WL 766996, at *2. Appellant complains that counsel failed to call several witnesses and to offer the mace can and hat rack into evidence. However, appellant did not show that this evidence was available to be introduced at trial, which he must to prove deficient performance. See Akin v. State, 981 S.W.2d 297, 301 (Tex. App.CTexarkana 1998, no pet.); see also Melancon v. State, 66 S.W.3d 375, 379 n.5 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Further, counsel could have made reasonable strategic decisions that this evidence was unnecessary or even harmful. Appellant asserts in his brief that counsel said she Aforgot@ to point out that one of the State=s exhibits showed a hole in the wall outside his bedroom door that he claims the complainant made during a previous altercation. There is no evidence in the record that she forgot rather than decided not to point it out for strategic reasons. The silent record regarding counsel=s motives is insufficient to overcome the presumption that she made such reasonable decisions.

Finally, appellant asserts that counsel=s trial performance was deficient because she did not request a jury instruction that the hat rack was a deadly weapon. A hat rack is not a deadly weapon per se because it is not Adesigned, made or adapted for the purpose of inflicting death or serious bodily injury.@ Hill v. State, 913 S.W.2d 581, 582 (Tex. Crim. App. 1996). Unless the weapon at issue is a deadly weapon per se, instructing the jury that it is a deadly weapon is error. See Blanson v. State, 107 S.W.3d 103, 105 (Tex. App.CTexarkana 2003, no pet.). It is not deficient performance to fail to request an instruction to which the defendant is not entitled. Ex parte Chandler, No. WR-60942-01, __ S.W.3d __, 2005 WL 858290, at *3 (Tex. Crim. App. Apr. 13, 2005).

We have reviewed each allegation appellant claims constitutes ineffective assistance of counsel, and we find appellant=s claim to be without merit. We overrule appellant=s first issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed October 25, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

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

[1] Appellant also complains that his attorney should have shared the complainant=s criminal record with him earlier and should have told him that his original indictment had been dismissed and a new one filed, thereby avoiding his confusion over the proper indictment number. Again, appellant fails to explain how his knowledge of this information earlier would have changed the outcome of the trial.