Brandon Hovey v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00692-CR

No. 04-03-00693-CR

Brandon HOVEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 379th Judicial District Court, Bexar County, Texas

Trial Court Nos. 2003-CR-0014 & 2002-CR-0013

Honorable Bert Richardson, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 13, 2004

AFFIRMED

Defendant, Brandon Hovey, pled guilty to the jury on the charges of robbery and aggravated robbery. The jury assessed punishment at ten years' confinement and a fine of $5,000 and twenty years' confinement and a fine of $5,000, respectively, the sentences to run concurrently. On appeal, defendant asserts the trial court erred in admitting certain statements as excited utterances and that he received ineffective assistance of counsel. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. We affirm.

EXCITED UTTERANCES

In his first issue, defendant asserts the trial court erred in admitting hearsay evidence under the excited utterance exception. We review a trial court's determination on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

At trial, Officer Manuel Parra, one of the officers who responded to the scene of a car-jacking, testified about what the two complainants told him when he arrived within minutes after the vehicle had been stolen. After defense counsel successfully objected on hearsay grounds, the State offered the testimony as excited utterances. On voir dire, Parra explained he arrived at the scene shortly after receiving the dispatch call and spoke to one of the complainants who explained how the defendant, who held a gun, approached her and her mother in the parking lot; and pulled her mother from the car, injuring her. Parra said he first had to calm the complainant down before she gave him any details and she was not "freaked out," but was more "stunned" and slightly confused. The trial court allowed the testimony as both an excited utterance and as a present sense impression.

On appeal, defendant asserts that because the complainant had already calmed down she was no longer "under the stress of excitement caused by the event or condition." See Tex. R. Evid. 803(2). Defendant does not challenge the court's ruling that the testimony was admissible as a present sense impression. A present sense impression is one "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." See Tex. R. Evid. 803(1). Defendant has not demonstrated the trial court abused its discretion by admitting Parra's testimony under Rule 803(1).

In his second issue, defendant asserts he received ineffective assistance of counsel because his attorney failed to properly prepare for and investigate the case and request a mistrial after the court sustained an objection to allegedly prejudicial testimony. Defendant also complains that because the evidence was insufficient to show he used a knife as a deadly weapon, he should not have pled guilty to the aggravated robbery charge. We review defendant's claim of ineffective assistance of counsel under the established standard of review. See Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

Defendant did not file a motion for new trial. Because no ineffective assistance claim was advanced, no hearing was conducted to explore defense counsel's trial strategy. In the absence of a proper evidentiary record, it is extremely difficult to show that trial counsel's performance was deficient. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd); Mares v. State, 52 S.W.3d 886, 891 (Tex. App.--San Antonio 2001, pet. ref'd) (failure to file pre-trial motions not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of trial strategy); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (record insufficient to support ineffective assistance of counsel claim where record was silent regarding reason counsel failed to call expert witness, failed to file pre-trial motions, and failed to adequately prepare witnesses). Here, the record is silent as to all of defendant's complaints; therefore, to find defendant's trial counsel ineffective on the basis of the record before this court would require us to speculate, which we will not do.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH