Ledee, Joseph Peter v. The State of Texas--Appeal from 228th District Court of Harris County

Affirmedand Opinion filed December 6, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-01018-CR

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JOSEPH PETER LEDEE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 980,198

O P I N I O N

Appellant, Joseph Peter Ledee, appeals from his conviction for aggravated assault. After a bench trial, the trial court found appellant guilty and sentenced him to 40 years= imprisonment. In three issues, appellant attacks the legal and factual sufficiency of the evidence and asserts that he received ineffective assistance of counsel because his trial counsel failed to move for a directed verdict. Appellant=s primary complaint under each issue is that although the State submitted evidence that he committed an assault, the State failed to prove that he committed the assault using the manner and means alleged in the indictment. We affirm.

Background

The complainant, George Ledee, appellant=s father, testified that on June 7, 2003, he heard his doorbell ring and saw appellant standing outside. Ledee opened the door and spoke to appellant in a friendly manner. Appellant had one hand behind his back and appeared to be holding something. Ledee told appellant that there was food on the stove if he wanted any. Ledee then turned his back to walk away. He felt something around his neck, Alike a wire or something,@ but could not tell exactly what it was. Appellant choked Ledee for over fifteen seconds, during which Ledee could not breathe. Ledee struggled back, and appellant hit him in the mouth, knocking out at least nine of Ledee=s teeth. Appellant hit Ledee again just below the eye and then forced him to the ground. With Ledee on the ground, appellant began kicking him, including in the eye. While he was kicking Ledee, appellant repeatedly asked AWho did that to you?@ and when Ledee responded with appellant=s name, appellant would say ANo@ and kick Ledee again. At one point, appellant went into the house and retrieved two bottles of liquor, which he made appellant drink. Appellant again asked AWho did that to you?@ and when Ledee responded AI don=t know,@ appellant stopped kicking him. Ledee then lost consciousness.

Ledee additionally testified that he permanently lost vision in one eye, had to have surgery for a broken nose, and received 37 or 47 stitches in his face. He also identified the cause of various injuries as shown on a photograph of himself taken after the attack, including a mark on his neck that he says was caused when appellant choked him with an object the identity of which he could not recall. Additionally, Ledee stated that after the incident he realized that his wallet and his car were missing.

Sheriff=s Deputy Santos Torres testified that he was called to the scene of the attack and arrived while Ledee was in an ambulance. He described the blood-stained premises and Ledee=s physical condition. He did not notice any marks on Ledee=s neck. Ledee told Deputy Torres that he believed his attacker was appellant but that he could not be certain. Deputy Roberto Rincon testified that he talked to Ledee at the hospital after the attack. According to Rincon, Ledee at first seemed hesitant to name his attacker but eventually stated that it was appellant. Ledee appeared fearful during the interview. Deputy Lee Bumpers testified that he spoke to Ledee at a substation, and Ledee told him that his son had beaten him and that he was afraid that his son would return and kill him. Patrick Robbins testified that he was arrested in Ledee=s vehicle on June 27, 2003, after having Arented@ it from appellant.

The indictment charged in the alternative that on or about June 7, 2003, appellant unlawfully, intentionally, and knowingly caused bodily injury to Ledee by using a deadly weapon, namely, Ahis hands@ or Aan unknown object@ (emphasis omitted). Appellant pleaded true to two punishment enhancement paragraphs. After a bench trial, the trial court found appellant guilty of aggravated assault, found the enhancement paragraphs to be true, and sentenced appellant to 40 years= imprisonment.

Sufficiency of the Evidence

In his first and second issues, appellant attacks, respectively, the legal and factual sufficiency of the evidence. We utilize the well established standards of review in considering these issues. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (legal sufficiency standards); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency standards). Specifically, appellant maintains that although the State submitted evidence that he committed an assault, the State failed to prove that he committed the assault using the manner and means as alleged in the indictment. As mentioned, the indictment alleged that appellant caused bodily injury to Ledee by using a deadly weapon, either his hands or an unknown object. Appellant emphasizes that Ledee testified that the most serious injuries that he sustained were from appellant=s kicking him and not from appellant=s hands or an unknown object. Appellant then asserts that there was no evidence, or insufficient evidence, that appellant caused serious bodily injury with his hands.

The Penal Code provides alternative means of proving aggravated assault. Here, the indictment did not charge appellant with causing Aserious bodily injury,@ and it did not need to in order to charge him with aggravated assault. Appellant quotes from subsection 22.02(1) of the Texas Penal Code, which provides that a person commits aggravated assault if he or she commits assault, defined in section 22.01, and Acauses serious bodily injury to another.@ Tex. Pen. Code Ann. '' 22.01, 22.02(2). However, appellant doesn=t discuss subsection 22.02(2), which provides that a person commits aggravated assault if he or she commits assault and Auses or exhibits a deadly weapon during the commission of the assault.@ Id. ' 22.02(2). By alleging that appellant caused Abodily injury@ by using a deadly weapon (Ahand@ or Aunknown object@), the indictment charged appellant under the second subsection of section 22.02 not the first. Therefore, the State did not have to prove that appellant caused Aserious bodily injury.@ See id. Consequently, appellant=s argument based on the State=s alleged failure to prove that appellant=s hands caused serious bodily injury is without merit.

Appellant additionally suggests that when the State sets forth two alternative theories and obtains a conviction, the conviction must be reversed on appeal if the State failed to present sufficient evidence as to each of the theories.[1] However, the Court of Criminal Appeals has expressly held the opposite: when an indictment alleges alternative means of committing an offense, a conviction may be sustained if the evidence is sufficient to support a finding under any of the theories charged. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).[2] Appellant=s second argument is therefore without merit.

Appellant makes no further arguments regarding the legal or factual sufficiency of the evidence. Accordingly, we overrule his first two issues.

Assistance of Counsel

In his third issue, appellant contends that he received ineffective assistance of counsel because his trial counsel failed to move for a directed verdict at the close of the State=s case. Appellant reiterates his argument, discussed above, that the evidence only demonstrated that appellant may have caused Ledee serious bodily injury by kicking him and not by using hands or an unknown object, as charged in the indictment. He asserts that trial counsel was deficient in not requesting a directed verdict on that basis.[3]

We review a charge of ineffective assistance of counsel under the normal standard of review. See Strickland v. Washington, 466 U.S. 668, 689 (1984). Because the evidence was legally sufficient to support the conviction, a directed verdict would not have been properly granted. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Therefore, counsel=s assistance was not ineffective. See Jenkins v. State, 870 S.W.2d 626, 630 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (holding that failure to request an instructed verdict after admission of sufficient evidence does not render counsel ineffective). Appellant=s third issue is overruled.

The trial court=s judgment is affirmed.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Opinion filed December 6, 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 cites Bagheri v. State, 87 S.W.3d 657 (Tex. App.CSan Antonio 2002), aff=d, 119 S.W.3d 755 (Tex. Crim. App. 2003), in support of his contention. Bagheri, however, did not involve alternate allegations of manner and means of committing an offense but involved alternative methods of proof of one offense. 87 S.W.3d at 660. The defendant in Bagheri was convicted of driving while intoxicated. Id. at 658. The State attempted to prove intoxication both through an intoxilyzer test result, which was improperly admitted, and other evidence that the defendant was impaired. Id. at 659. The jury charge submitted both the Aper se@ and the Aimpairment@ theories of intoxication. Id. at 660. The court of appeals reversed the conviction, concluding that the erroneous admission of the intoxilyzer results was harmful error under either theory of intoxication. Id. at 660-61. The Court of Criminal Appeals affirmed, although it questioned the lower court=s analysis and emphasized that the case dealt with alternate methods of proof, not alternate means of committing the offense. 119 S.W.3d at 761-63. The case presently before us deals with alternate means of committing an offense, not alternate methods of proof; thus the opinions in Bagheri are not applicable.

[2] The Kitchens opinion discussed the issue in terms of a jury trial and jury charge, but the court=s reasoning appears equally applicable to a bench trial. 823 S.W.2d at 258.

[3] It is questionable whether a Adirected verdict@ would ever be appropriate in a bench trial. See State v. Lewallen, 927 S.W.2d 737, 739 n.2 (Tex. App.CFort Worth 1996, no pet.).