Ricky Glenn Williamson v. The State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-96-266-CR

RICKY GLENN WILLIAMSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 8375-A

O P I N I O N

This is an appeal by Appellant Williamson from his sentence of 30 years in the Texas Department of Criminal Justice - Institutional Division.

Appellant was indicted for aggravated assault with a motor vehicle enhanced by two prior felony convictions.

On June 7, 1994, Appellant was driving Angela Phillips and their seven-month-old daughter on Road 937 between Groesbeck and Aletha. Tony Messina, who had dated Angela, was driving on the same road. Appellant saw Messina s truck and stated to Angela, There s that . I m going to get him. Appellant fell in behind Messina. When Messina turned into he Old Union Store lot and parked, Williamson turned into the lot; backed toward Messina s truck, accelerated and rammed the truck, causing injury to Messina and damage to his truck.

At trial a jury found Appellant guilty and assessed his punishment at 62 years in prison. On appeal this court affirmed the conviction but remanded the case for a new punishment hearing due to an erroneous instruction in the charge on parole.

On retrial as to punishment only, Appellant pled Not True to the two enhancement allegations in the indictment. The jury found both allegations of prior felony convictions to be True and assessed Appellant s punishment at 30 years in prison.

Appellant now appeals on three points of error.

Point 1 asserts the evidence was insufficient to prove the enhancement allegations beyond a reasonable doubt or to prove that defendant was the same defendant convicted in Cause Nos. 6636-A and 7391-A (the prior felony convictions alleged in the indictment).

A complaint about the sufficiency of the evidence will be construed as a legal sufficiency challenge. Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) (claim of factual sufficiency must be properly raised); Caldwell v. State, 943 S.W.2d 551, 552 (Tex. App. Waco 1997, no pet.). Thus we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Geesa v. State, 820 S.W.2d 154, 157 (Tex. Crim. App. 1991).

State s Exhibit 1, the judgment in Cause No. 6636-A, was admitted into evidence and reflects that Ricky Williamson was convicted of burglary of a habitation on March 3, 1983, and assessed 8 years in TDCJ-ID and a $500 fine; that Appellant was placed on probation and that on August 9, 1983, Appellant s probation was revoked and he was sentenced to 6 years in TDCJ-ID.

State s Exhibit 2, the judgment in Cause No. 7391-A, was admitted into evidence and reflects that Ricky Williamson was convicted of burglary of a building and sentenced on September 28, 1989, to 8 years in TDCJ-ID.

Sammie Hayden, Adult Probation Officer of Limestone County, testified that he knew Ricky Williamson; that he supervised him on a probation case in 1983; that such was Cause No. 6636-A; that Ricky s probation was later revoked and that he went to the penitentiary; that Ricky was sitting in the courtroom next to his attorney and he is the same Ricky Williamson who was on probation in Cause No. 6636-A.

William Groth, a criminal investigator for the Limestone County District Attorney s office testified that he knew Ricky Williamson and identified him in the courtroom; that he is the same Ricky Williamson who was convicted in State s Exhibits 1 and 2; and that he was present when Ricky was convicted in the Exhibit 2 case.

The evidence is more than sufficient to prove the enhancement allegations beyond a reasonable doubt and to prove that Appellant is the same person convicted in Cause Nos. 6636-A and 7391-A.

Point 1 is overruled.

Point 2 asserts the trial court erred by asking Appellant in the presence of the jury if the prior convictions alleged for enhancement purposes were true.

The trial court read the enhancement paragraphs of the indictment to Appellant and asked him, How do you plead to allegations of a prior felony conviction in Cause 7391-A, and Appellant stated, Not True. The judge then read the enhancement paragraph of the indictment in Cause 6636-A and Appellant responded, Not True, to the allegations.

The trial proceeded exactly as it should have. No error is shown.

Point 2 is overruled.

Point 3 asserts Appellant received ineffective assistance of counsel at the retrial on punishment.

Appellant s complaints deal with the punishment in the re-sentencing phase of his trial. Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App. 1987), and Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980), set the standard for review. These cases hold that effectiveness of counsel in a sentencing phase is to be gauged by the totality of the representation of the accused, that is, the court is to judge the full scope of the assistance and representation for effectiveness.

Appellant s conviction was previously affirmed. The case was remanded for re-sentencing because of an error in the charge on parole. The evidence was overwhelming that Appellant had two prior convictions. The range of punishment was life imprisonment or a term of not over 99 years or less that 25 years. The jury assessed 30 years.

Applying the Duffy standard, we find that counsel s representation of Appellant was not ineffective.

Point 3 is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed August 27, 1997

Do not publish