Tamala Nicole Brown v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00015-CR

Tamala Nicole Brown,

Appellant

v.

The State of Texas,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 05-02621-CRF-272

MEMORANDUM Opinion

  A jury found Tamala Brown guilty of aggravated assault with a deadly weapon and assessed a prison sentence of eighteen years. In this appeal, Brown asserts five issues. We will affirm.

Background

The evidence shows that during a dispute and fight outside a bar after midnight, Brown struck and severely cut the victim s neck with a broken beer bottle. Brown admitted to striking and cutting the victim with the broken bottle, but she claimed it was in self-defense, which the trial court submitted to the jury. All of the parties to the dispute and fight, including Brown, testified. Brown s version contradicted the inconsistent versions of the other witnesses, including that of the victim, Bobby Green, who had been Brown s boyfriend.

Ineffective Assistance of Counsel

Brown s first issue is ineffective assistance of counsel. She asserts that her trial counsel was ineffective in at least 27 different respects, including areas such as deficient examination of witnesses, failure to object or to object properly, failure to get allegedly key evidence admitted, making a prejudicial closing argument that contradicted Brown s testimony, failing to give an opening statement in the punishment phase, and failing to request a lesser-included offense instruction.[1]

The standard in Strickland v. Washington applies to a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail, a defendant must first show that his counsel s performance was deficient. Id. at 687, 104 S. Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Then it must be shown that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Appellate review of defense counsel s representation is highly deferential and presumes that counsel s actions fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel s conduct was reasonable and professional. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Mitchell, 68 S.W.3d at 642. Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: [i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); see also Mitchell, 68 S.W.3d at 642 ( The reasonableness of counsel s choices often involves facts that do not appear in the appellate record. A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims. ).

In the absence of evidence of trial counsel s reason for the challenged conduct, we assume a strategic reason for trial counsel s conduct, if one can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) ( an appellate court commonly will assume a strategic motivation if any can possibly be imagined, and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it ) (quoting 3 W. Lafave, et al., Criminal Procedure 11.10(c) (2d ed. 1999) and citing Thompson, 9 S.W.3d at 814). But, if nothing in the record reveals trial counsel s reason, it is improper for us to speculate on it. See Thompson, 9 S.W.3d at 814.

We have a silent record before us on trial counsel s conduct and trial strategy. Because the appellate record in this case does not evidence the reasons for trial counsel s conduct, and because all of the alleged deficiencies could have been the subject of trial strategy, we overrule Brown s first issue. See Jones v. State, 170 S.W.3d 772, 776 (Tex. App. Waco 2005, pet. ref d).

Sufficiency of the Evidence

Brown s second issue complains that the evidence is legally and factually insufficient to support her conviction. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Our duty is to determine if the finding of the trier of fact is rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

The standard of review for factual sufficiency was recently revisited by the Court of Criminal Appeals in Watson v. State, 204 S.W.3d. 404 (Tex. Crim. App. 2006). We, as the reviewing court, ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder s verdict clearly wrong and manifestly unjust. Id. at 414-15; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . . Id. (quoting William Powers and Jack Ratliff, Another Look at No Evidence and Insufficient Evidence, 69 Texas L. Rev. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called thirteenth juror to review the factfinder s weighing of the evidence and disagree with the factfinder s determination. Watson, 204 S.W.3d at 416-17. If an appellate court concludes that the evidence is factually insufficient, it must clearly state why it has reached that conclusion. Johnson, 23 S.W.3d at 7.

If there is a reasonable doubt with respect to the existence of a defense, the accused must be acquitted. Tex. Pen. Code Ann. 2.03(d) (Vernon 2003); Winkley v. State, 123 S.W.3d 707, 712 (Tex. App. Austin 2004, no pet.). In other words, the trier of fact must find against the defendant on the defensive issue beyond a reasonable doubt. See Sexton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). When a defendant challenges the factual sufficiency of the rejection of a defense, we must review all of the evidence in a neutral light and ask whether the State s evidence, taken alone, is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). The State meets its burden of persuasion by proving its case beyond a reasonable doubt and thus need not produce evidence directly refuting the evidence of the defense. Id. at 594.

Brown, Bobby Green (Brown s ex-boyfriend and the father of her young child), and Theron Hill were involved in a name-calling dispute outside of Dee s Club. Brown admitted that she struck and cut Green s neck with a broken bottle; she said she did it in self-defense to Hill s attack on her. Hill testified that Brown came at him and Green with the bottle and that she struck Green in the neck. Green testified that he felt Brown pull his hair from the back and then felt a scratching and rubbing across his neck. He felt a sting but did not realize that Brown had a bottle and that he had been cut. Two investigating police officers testified that the broken bottle used by Brown was capable of being a deadly weapon. Considering all of the evidence in the light most favorable to the verdict, the jury could rationally have found beyond a reasonable doubt that Brown committed the offense of aggravated assault with a deadly weapon, rejecting her self-defense claim. Jackson, 443 U.S. at 318-319, 99 S.Ct. at 2788-89; Zuliani, 97 S.W.3d at 594-95. Accordingly, we find the evidence to be legally sufficient.

In her brief, Brown s factual sufficiency complaint argues the credibility of the witnesses and their inconsistent testimony. We must, however, defer to the jury s determination of the credibility of the witnesses. Johnson, 23 S.W.3d at 7. We cannot say that the evidence is not factually sufficient because the jury resolved the conflicting views of the evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

The jury was free to reject Brown s self-defense testimony, which was contradicted in key respects by Green and Hill. See Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Considering all of the evidence in a neutral light, we find that the jury was justified in finding Brown guilty. See Watson, 204 S.W.3d at 414-15. Accordingly, we find that the evidence was factually sufficient. We overrule Brown s second issue.

Lesser-Included Offense

In her third issue, Brown complains that the trial court erred in not instructing the jury on the lesser-included offense of assault, arguing that the broken beer bottle was not a deadly weapon. Assault is lesser-included offense of aggravated assault; it is elevated when the defendant uses or exhibits a deadly weapon. Although Brown s trial counsel did not request a lesser-included offense instruction on assault, we will address her complaint. See Posey v. State, 966 S.W.2d 57, 61-64 (Tex. Crim. App. 1998).

The second step for determining whether a lesser-included instruction is that there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, she is guilty of only the lesser offense; the lesser-included-offense instruction was required only if the record contains some evidence that Brown did not use a deadly weapon. Davis v. State, 22 S.W.3d 638, 640-41 (Tex. App. Waco 2000, pet. ref d). Brown admitted to striking the victim in the neck with the broken bottle. She admitted that the victim s cut was a serious bodily injury, but claimed that she had struck at Hill in self-defense. An officer testified that the jagged edge of a broken beer bottle, when used to cut a person s throat, is a deadly weapon. The record does not contain evidence that would permit a jury to rationally find that Brown did not use a deadly weapon, and Brown was not entitled to an instruction on the lesser-included offense of assault. See id. at 641-42. We overrule the third issue.

 Batson Complaint

Brown s fourth issue is a Batson complaint. There were four black, female venirepersons. Two were in the strike zone, and the State struck them both. In response to Brown s Batson challenge, the State explained that it struck those two because they were sleeping during voir dire. The trial court overruled the Batson challenge. Striking prospective jurors because they were sleeping during voir dire is a valid, race-neutral reason. See Muhammad v. State, 911 S.W.2d 823, 825 (Tex. App. Texarkana 1995, no pet.). Moreover, the State struck the only other sleeping venireperson. The trial court s finding that the State s two strikes were not racially motivated was not clearly erroneous. See Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991). We overrule Brown s fourth issue.

Evidentiary Ruling

Brown s fifth issue complains that the trial court abused its discretion in sustaining the State s objection to her counsel s questions to her about why Hill s jaw was wired shut. The State objected to the questions as calling for hearsay; Brown claims the proper objection was that the questions called for speculation. Having reviewed the questions and objections at issue, we hold that the trial court did not abuse its discretion in sustaining the hearsay objections. Brown s fifth issue is overruled.

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

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed March 14, 2007

Do not publish

[CR25]

[1] We cannot speculate whether trial counsel was ineffective in not requesting a lesser-included offense instruction or whether he employed an all-or-nothing strategy, especially with Brown s self-defense theory. See Jones v. State, 170 S.W.3d 772, 776 (Tex. App. Waco 2005, pet. ref d). Moreover, because of our disposition of Brown s third issue, she cannot show prejudice from the failure to request the instruction.