James Johnson v. The State of Texas--Appeal from 147th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00462-CR
James Johnson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0954916, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
A jury convicted appellant James Johnson of burglary of a habitation and aggravated assault. The jury assessed punishment at sixteen and fourteen years' imprisonment, respectively, for the offenses. On appeal, appellant contends that the evidence is legally and factually insufficient to support his convictions, that the trial court should have suppressed the in-court identification of him, and that his representation at trial was ineffective. We will affirm the convictions.

We begin with a survey of the facts, reserving a more detailed recitation for the sufficiency points. A noisy group of men banged on the front door of Levern Green's residence, looking for the person who had stabbed "David," a friend or relative of the members of the group. Believing their quarry was in the house, they forced their way into the house, hit Green, and briefly held him at knifepoint. When the police arrived, the intruders scattered. Shortly thereafter, appellant appeared in front of the Greens' house and was arrested for public intoxication. While appellant sat handcuffed in a police cruiser, Green identified him as the man who held him at knifepoint.

 
Identification

Appellant contends in his third point of error that the trial court erred by not suppressing the in-court identification of him because the out-of-court identification occurred under impermissibly suggestive circumstances. After a pretrial hearing, the trial court denied appellant's motion to suppress. We must review out-of-court identification procedures to see if they are impermissibly suggestive and whether any suggestiveness created a very substantial likelihood of irreparable misidentification. Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993). In conducting the latter analysis, we consider the following regarding the out-of-court identification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention during the crime; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Manson v. Braithwaite, 432 U.S. 98, 114 (1977); Delk, 855 S.W.2d at 706. The in-court identification testimony is admissible if the indicia of reliability outweigh the apparent corrupting effect of the unnecessarily suggestive pretrial, out-of-court occurrence. Id. The defendant must show by clear and convincing evidence that the out-of-court events made the in-court identification unreliable. Id.

Appellant contends the out-of-court identification in the present case was impermissibly suggestive because it occurred while he was handcuffed in a police cruiser outside Green's home. We note that Green testified he identified appellant before appellant was arrested. However, Jeff Gabler, the arresting officer, testified that he had already arrested appellant for public intoxication when Green "broke through the crowd and said, 'That's him. That's the guy who broke in the house and threatened me with a knife.'" If, as Gabler testified, appellant was under arrest and isolated, that might have been suggestive. There is, however, no indication that the police suggested to Green that he consider whether appellant was his assailant. To the contrary, Gabler's testimony indicates that the identification was unsolicited and coincidental with the arrest. This is much less suggestive than the police showing a single photograph to a witness, as criticized in Manson, 432 U.S. at 109.

Even if the out-of-court identification was overly suggestive, the indicia of reliability outweigh the suggestiveness. Green had ample opportunity to view his assailant at the scene. Green testified that he saw the intruders before they came into his house and stayed for two to five minutes. He testified that the assailant held him by the neck and menaced him with a knife for thirty to forty-five seconds. Green testified that he was focused on protecting his family. We conclude that he had sufficient time to create a memory of his assailant's face because, given the life-threatening circumstances, Green was likely paying very close attention. Green did not have an opportunity to describe the assailant to police, so close in time was the attack to the identification. Despite the discrepancy in testimony regarding whether appellant was under arrest when identified, both Green and the arresting officer agree that Green showed no hesitation or doubt in identifying appellant as his attacker less than ten minutes after the attack. We conclude that the trial court did not err by refusing to suppress the identification. We overrule point of error three.

 
Sufficiency of the evidence

The applicable law

By points of error one and two, appellant contends the evidence was legally and factually insufficient to support his convictions. To determine the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict and can set aside the verdict only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). To assess the factual sufficiency of the evidence, we review all the evidence without the prism of "in the light most favorable to the verdict" and can set aside the verdict only if it is so contrary to the great weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

We measure the sufficiency of the evidence against the elements of the offense as described by a hypothetical, correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). To prove burglary of a habitation, the State must show that appellant entered the Greens' house without their effective consent and with the intent to commit a felony. See Tex. Penal Code Ann. 30.02(a) (West 1994). To prove aggravated assault, the State must show that appellant intentionally or knowingly threatened another with imminent bodily injury while using or exhibiting a deadly weapon. Tex. Penal Code Ann. 22.02 (West 1994).

The testimony

There is evidence supporting two versions of how appellant came to be in front of the Greens' house. Appellant, his common-law wife Patricia Bowser, and Bowser's niece Kimly Pete all said appellant had nothing to do with the assault and was merely trying to find out what was going on. Levern Green, his teenage son Dashua, and their neighbor Kathy Partridge said that appellant led the attack on the Greens' house. Police officer Jeff Gabler testified appellant then returned to challenge the Greens further.

Dashua testified that he and his friend, D.C., had had problems with stabbing- victim David and David's friend Dwayne for two years. Hearing that Dwayne and David had "jumped" a friend of his, D.C. ran off to retaliate. Dashua called the police. D.C. returned to the Greens' house after stabbing David. Shortly thereafter, a group searching for the person who stabbed "my nephew" started banging on the Greens' front door. Mrs. Green called the police. Dashua went upstairs and got his father; he said there was no time to explain why the men were banging on the door. After a brief respite, Dashua saw and heard appellant, dressed in a black mesh shirt, kicking the door. Green looked through the peephole. Dashua said his mother opened the door to look at who was beating on the door. The men outside rushed through the door, knocking his father over the couch. Three men started hitting Green. Appellant grabbed Green by the neck and drew a steak knife back in a threatening manner. Dashua knocked appellant away from his father. Appellant came toward Dashua, continuing to ask for the person who stabbed his nephew. When someone announced that the police had arrived, the intruders scattered. Dashua testified that appellant was intoxicated.

Levern Green's testimony regarding his involvement in the altercation was in most respects in line with Dashua's testimony. The only real difference was that he recalled opening the door partway to talk to the visitors. He had no idea what D.C. had done or that he was in the house. He said one of the outsiders looked through the partly opened door and said, "There he is," before pushing open the door. Green testified that he resisted the men's entry. Green agreed that the knife-wielding man was looking for the person who stabbed his nephew, and Green was certain that the stabber was not himself, his wife, or his son. Green said that his attacker said something like, "Who is fixing to get stabbed now?" as he waved the knife.

Neighbor Kathy Partridge told a similar story from her perspective. She said a group came searching for someone at her house. She identified appellant as the man leading the searching group. After she told them they had the wrong house, they went to the Greens'. When the Greens asked who was at the door, appellant pushed open the door, went past Mrs. Green, and pushed Green over the couch. She then saw appellant hitting Green, but she did not see a knife. She also saw him swing at Dashua.

Officer Gabler testified that he was called to investigate a stabbing and arrived on a chaotic scene. After five minutes near the Greens', he got a call about a drive-by shooting nearby; the call came from appellant's house. He went to investigate but found nothing. He did not recall seeing or talking with appellant. He returned to the Greens' street, where Dashua was complaining to another officer about people having forced their way into the house. Green had a swollen, bleeding lip. Appellant arrived and began challenging the people who lived in that area. The officer interviewing the Greens asked Gabler to arrest appellant for public intoxication. Despite appellant's loud challenges, no one yet identified appellant as the leader. After Gabler handcuffed appellant and as he was putting him in the car, Gabler heard someone say something like "that is the guy." Green and Partridge then looked in the car and identified appellant as the man who led the assault on the Greens' house. Gabler then added aggravated assault to the public intoxication charge.

Patricia Bowser, appellant's common-law wife, testified that David, the stabbing victim, was her sister-in-law's stepson. David, who had been a guest at her barbecue earlier in the evening, reappeared stabbed and bleeding. Upon learning of the stabbing, many of her guests ran around the corner to investigate. Appellant did not leave with them, but did go five or ten minutes later. She testified that he was wearing a black mesh shirt and lots of gold jewelry. She also testified that Mrs. Green testified at a pretrial hearing that the knife-wielding assailant had on a white T-shirt.

Kimly Pete, Bowser's niece, agreed with much of the previous testimony. She was part of the group that left the party to look for the stabber. She confirmed the Greens' version of the events at their house with one critical exception--she said that the person who assaulted the man inside the house was someone named Bobby, not appellant. She did not recall Bobby having a knife. She said Bobby was wearing a black shirt that was partially mesh and that the other assailant had on a white shirt. She also said that Bobby did not look like appellant.

Appellant also testified that sometime after the group rushed off, he went to see what was happening. He met them on their way back. They told him the police had the situation under control. Then a car drove by and the occupants threatened to commit a drive-by shooting at appellant's house. Appellant called the police and accompanied an officer to the Greens' street in an unmarked car to identify the drive-by threateners. When he did so, the men jumped out of a car and threatened to hurt him. Another officer arrested appellant for public intoxication. Appellant confirmed Bowser's and Pete's descriptions of his clothing, and agreed that his jewelry selection that day was a "Mr. T starter set." He denied that he knew Green, walked up to his house, went inside his house, had a knife, knocked Green over, or talked to him or his family. He also denied that, immediately before his arrest, he stood on the corner yelling and questioning when the police were going to stop gang violence.

 

The analysis

The evidence is factually and legally sufficient to support the conviction for aggravated assault. The jury could choose to credit the identification of appellant as the assailant over the alibi testimony. The jury could then conclude that appellant's punching Green, waving a knife at him, and saying "Who is fixing to be stabbed now?" constituted a threat of imminent bodily injury while using a deadly weapon.

Appellant contends that inconsistencies in testimony render the evidence insufficient to prove the elements of burglary. The asserted inconsistencies, however, involve details irrelevant to the offenses. For example, appellant contends Green waffled regarding whether he or his wife went downstairs first. An additional inconsistency concerns which of them opened the door. We conclude that these inconsistencies do not directly affect the proof of the elements. At most, they diminish credibility. We do not reassess the jury's decision on credibility of witnesses.

Aside from the identification dispute, appellant's insufficiency argument on the burglary conviction focuses on whether appellant entered without consent and with intent to commit a felony. Appellant argues that, because the Greens opened the door partway and talked to appellant and his cohorts, the State has failed to prove beyond a reasonable doubt a lack of tacit consent to entry. However, the testimony from Green, Dashua, Partridge, and Pete that entry was resisted gave the jury ample evidence to conclude otherwise. Appellant also emphasizes that Green knew the men were not after him or his family. Green's knowledge is not dispositive of appellant's intent. The jury was free to infer from the forceful entry following the spotting of D.C., the knife wielding, and the statement "Who's fixing to be stabbed now?" that appellant was in a vengeful mood and entered the house intending at least to threaten D.C. or others with imminent bodily injury. A threat with a knife would constitute an aggravated assault. Nonconsensual entry with intent to make that threat constitutes a burglary.

When viewed in the light most favorable to the verdict, this record provides sufficient evidence on which a rational jury could conclude beyond a reasonable doubt that appellant committed burglary. Moreover, the verdict is not contrary to the great weight and preponderance of the evidence. We overrule points one and two.

 
Effectiveness of counsel

By his fourth point of error, appellant contends his trial counsel was ineffective because he failed to introduce into evidence a property receipt from the county jail to show that, when arrested, appellant had a large gold medallion and chain but did not have a knife. To assess this point of error, we first must examine whether counsel's conduct failed to meet an objective standard for reasonable performance and whether that failure deprived the appellant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, (1984); Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). Counsel is allowed wide latitude within reasonable professional standards to make tactical decisions. Strickland, 466 U.S. at 689. We look at the totality of the representation. Ex parte Carillo, 687 S.W.2d 320, 324 (Tex. Crim. App. 1985); Vasquez v. State, 819 S.W.2d 932, 938 (Tex. App.--Corpus Christi 1991, pet. ref'd). The representation need not be free of error. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Vasquez, 819 S.W.2d at 938. Finally, the client must show a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id.

The trial-court record does not convince us that counsel's representation was ineffective. Initially we note that there is no evidence of the property receipt in the trial record. Second, we note that Bowser and appellant both testified that appellant was wearing jewelry that night, and Bowser asserted that "they gave the testimony that he had no jewelry on." At trial, however, none of the State's witnesses said anything regarding whether appellant wore jewelry. Nevertheless, Bowser's statement put the alleged deficiency in the identification testimony before the jury. The jury chose to ignore the alleged deficiency and to credit the testimony of three people who saw the attacker at close range and identified him unprompted by police questioning.

Similarly, the absence of a knife was before the jury because the arresting officer stated that he found no knife on appellant at the time of arrest. The failure to offer the receipt showing no knife at booking is not unreasonable because the jury already knew that appellant had no knife when arrested. The jury convicted appellant anyway.

Appellant does not assert any other flaws in counsel's representation. Counsel attempted to suppress the identification, called and cross-examined witnesses, and objected to improper examination techniques by the State.

We conclude that the representation was not constitutionally deficient; further, we are not persuaded that the result of the trial would have been different had the receipt been admitted. We overrule point four.

 
Conclusion

Having overruled all points of error, we affirm the convictions.

 

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and Kidd; Chief Justice Carroll not participating

Affirmed

Filed: March 26, 1998

Do Not Publish

vated assault. Nonconsensual entry with intent to make that threat constitutes a burglary.

When viewed in the light most favorable to the verdict, this record provides sufficient evidence on which a rational jury could conclude beyond a reasonable doubt that appellant committed burglary. Moreover, the verdict is not contrary to the great weight and preponderance of the evidence. We overrule points one and two.

 
Effectiveness of counsel

By his fourth point of error, appellant contends his trial counsel was ineffective because he failed to introduce into evidence a property receipt from the county jail to show that, when arrested, appellant had a large gold medallion and chain but did not have a knife. To assess this point of error, we first must examine whether counsel's conduct failed to meet an objective standard for reasonable performance and whether that failure deprived the appellant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, (1984); Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). Counsel is allowed wide latitude within reasonable professional standards to make tactical decisions. Strickland, 466 U.S. at 689. We look at the totality of the representation. Ex parte Carillo, 687 S.W.2d 320, 324 (Tex. Crim. App. 1985); Vasquez v. State, 819 S.W.2d 932, 938 (Tex. App.--Corpus Christi 1991, pet. ref'd). The representation need not be free of error. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Vasquez, 819 S.W.2d at 938. Finally, the client must show a reasonable probability that, but for counsel's errors, the result of the proceedings