Donald Ray Hunt v. The State of Texas--Appeal from County Court at Law No 7 of Bexar County

00-00036 Hunt v State of Texas.wpd No. 04-00-00036-CR
Donald Ray HUNT,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law Number 7, Bexar County, Texas
Trial Court No. 716044
Honorable Bill C. White, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 25, 2000

AFFIRMED

A jury found Donald Hunt guilty of assault and the trial court sentenced him to one year in jail and a five hundred dollar fine. The court later granted Hunt's application for probation, suspended the jail term, and placed Hunt on community supervision for a period of one year. Hunt appeals, contending the evidence was legally insufficient to convict him and his trial counsel rendered ineffective assistance. We disagree and affirm.

Legal Sufficiency

In his second and third points of error, Hunt argues the evidence was not legally sufficient to convict and the trial court erred by denying his motion for a directed verdict. Because a challenge to the trial court's denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence to support the conviction, we discuss these points together. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954 (1991).

Standard of Review

In reviewing the legal sufficiency of the evidence we consider all the record evidence, direct and circumstantial, admissible and inadmissible, "in the light most favorable to the jury's verdict, and ... determine whether, based on that evidence, any rational jury could have found all the essential elements of the offense beyond a reasonable doubt." Johnson v. State, 967 S.W.2d 410, 411-12 (Tex. Crim. App. 1998).

Discussion

The complainant, Christia Rogers, testified she married Hunt in August 1998. On the night of September 13, 1998, they had an argument that intensified until Hunt grabbed her neck and began choking her. She testified his thumb pushed against her trachea and she was gasping and could not get any air. He released her twice, but started choking her again. She testified Hunt continued to choke her until she felt very weak, her fingers started getting numb, and her eyes felt like they were about to pop out of her head. When Hunt finally released her, Rogers packed her clothes, took her child, and fled to a friend's house.

Rogers testified she reported the assault to the police the next day and later was photographed at the family violence unit. Copies of the photographs revealing red, bloody eyes were admitted into evidence. Lieutenant Young of the San Antonio Police Department testified Rogers came in the evening of September 14, 1998 and reported she had been assaulted by her husband. He testified both Rogers' eyes were bloody, she was complaining of soreness, and was very upset.

After leaving the police station September 14th, Rogers was examined at a clinic. The medical records reveal tenderness in the neck and shoulder and subconjunctival hemorrhages in her eyes. The medical report states this condition may be caused by a minor injury, but is usually due to coughing, sneezing, straining, or rubbing the eye. Rogers testified her eyes began to fill with blood after the choking, and it took two to three weeks for them to clear. She also testified her throat was very sore and she could not swallow easily for a week after the choking, and that her neck hurt for about a week and a half.

Hunt testified the last day he and Rogers were together was September 6, and that she left him, in part because she wanted to reestablish a relationship with the father of her son. Hunt denied ever having choked or assaulted Rogers in any way. Hunt also offered evidence from his divorce lawyer, who testified Rogers signed, under oath, divorce papers which recited the couple ceased living together on September 11. On cross-examination, Rogers conceded she had reviewed and signed the documents. The attorney also testified Rogers never contested or corrected any facts alleged in the documents and did not tell him or his assistant Hunt had assaulted her. Finally, Hunt offered evidence that, after leaving him, Rogers had forged his signature to withdraw $3,200.00 from his checking account.

A person commits assault if he "intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse." Tex. Pen. Code Ann. 22.01(a)(1) (Vernon Supp. 1999). Hunt argues the evidence is insufficient to prove beyond a reasonable doubt that he and Rogers had any altercation on September 13, 1998, because Rogers admitted having previously sworn that the couple ceased living together on September 11 and she testified she did not see Hunt again after she left the house. However, Rogers testified she did not read the divorce papers word for word and pointed out the documents also incorrectly recited the date of the marriage. In determining whether the evidence is legally sufficient to support a conviction, we are mindful that the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988). Inconsistencies in the evidence are for the jury to resolve, Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982), and in our review, we must resolve any inconsistencies in favor of the jury's verdict. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991) (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). The jury was well within its bounds to believe Rogers' testimony that Hunt choked her September 13, to disbelieve Hunt's testimony that Rogers left him a week earlier, and to believe the date in the divorce papers was inaccurate.

Hunt also argues the evidence is legally insufficient because there was no evidence Rogers' eye injury did or could result from a strangulation. Rogers testified the doctor who treated her told her the subconjunctival hemorrhages could be caused by strangulation. Rogers further testified she had pain in her neck for over a week after the assault and her throat hurt for about a week, making it very difficult for her to swallow. This evidence was sufficient to support a finding that Rogers suffered bodily injury. See Tex. Pen. Code Ann. 1.07(8) (Vernon 1994) ("'Bodily injury' means physical pain, illness, or any impairment of physical condition."). We therefore overrule Hunt's second and third points of error.

Ineffective Assistance of Counsel

In his first point of error, Hunt contends he was denied effective assistance because his trial counsel (1) introduced the police report into evidence, (2) elicited hearsay testimony from Rogers, (3) failed to present expert testimony regarding the causes of subconjunctival hemorrhage, (4) conducted a deficient cross-examination of Rogers, and (3) admitted he had "a hearing problem" and "should retire."

The Texas Court of Criminal Appeals has adopted the test for ineffective assistance of counsel first enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). Under this two-pronged test, a defendant must show (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced him to such a degree that he was deprived of a fair trial. Holland, 761 S.W.2d at 314; Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). To show deficient performance, defendant must show counsel's performance fell below an objective standard of reasonableness and rebut the presumption that counsel's trial decisions are based on sound strategy. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). "To show prejudice, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694). The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence, Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985), and "the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700; see Thompson, 9 S.W.3d at 813; Garcia v. State, 887 S.W.2d 862, 880 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1021 (1995).

The record is silent as to why counsel introduced the police report, cross-examined Rogers as he did, and did not offer expert testimony. Hunt points to no evidence rebutting the presumption that these decisions by his counsel were based on sound strategy, and thus fails to meet the first prong of Strickland. See Jackson, 877 S.W.2d at 771-72; Thompson, 9 S.W.3d at 814. Hunt's final contention appears to be that counsel admitted ineffectiveness in the following exchange:

STATE: I believe that it's to bring Ms. Hunt back for her cross-examination-

COURT: Is Mr. Thomas going to do that?

STATE: - - and redirect.

COUNSEL: Yes.

COURT: Okay. Bring Ms. Hunt back, please.

COUNSEL: And then rest, is that what you said?

STATE: No, I said for redirect.

COUNSEL: Oh, I'm sorry. I have a hearing problem today. I think I should retire, but --

Hunt fails to argue or establish how counsel's offhand comment constitutes deficient performance or that Hunt suffered any prejudice from it. We therefore overrule Hunt's first point of error and affirm the trial court's judgment.

Sarah B. Duncan, Justice

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