MICHAEL KAISER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 3, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00575-CR
............................
MICHAEL KAISER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd District Court
Dallas County, Texas
Trial Court Cause No. F06-15843-LW
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OPINION
Before Justices Whittington, Bridges, and Moseley
Opinion By Justice Bridges
        Michael Kaiser appeals his aggravated assault conviction. A jury convicted appellant and sentenced him to thirty years' confinement. In four issues, appellant argues the trial court abused its discretion in granting the State's challenge for cause to two jurors and admitting certain testimony, and his counsel was ineffective. We affirm the trial court's judgment.
        On March 14, 2006, appellant and his girlfriend, Mercy Martinez, were drinking beer and watching a basketball game at Martinez's house. Appellant and Martinez's daughter went to get beer and, while they were gone, Martinez answered a phone call from appellant's ex-girlfriend. When appellant returned, he denied being in contact with his ex-girlfriend, but he and Martinez argued for ten to fifteen minutes. The argument continued outside as appellant was leaving. Martinez turned from where she was standing next to appellant's truck, and she heard appellant revving his engine. Appellant drove over the curb and struck Martinez in the abdomen, causing her to fall back, hit her head on a brick wall, and black out. When Martinez woke up, she threw up, and her daughter helped her to her apartment where she fell asleep for a few minutes before police arrived. Martinez had a bad headache and soreness in her abdominal area. She filled out an affidavit for the police but declined to go to the hospital because she did not want appellant to get into trouble.
        Carrollton police officer Blackwell   See Footnote 1  arrived at Martinez's apartment and observed her sitting on her bed and looking like she was in pain. When Martinez walked to the bathroom, she moved very slowly like she was sore or hurt and made a kind of wincing facial expression. Blackwell found vehicle tracks on the grass which supported Martinez's claim that appellant had driven through the grass. The tracks went from a parking spot where Martinez said appellant was parked to the location where Martinez said she was hit.
        The next day, Martinez went to work for about an hour but left due to the soreness she felt. Appellant called Martinez, and she told him what happened the night before. Appellant apologized and said he did not remember what happened. Appellant was subsequently charged with aggravated assault. A jury convicted him, and this appeal followed.
        In his first and second issues, appellant argues the trial court abused its discretion by granting the State's challenges for cause against two prospective jurors. When reviewing a trial court's decision to grant or deny a challenge for cause we look at the entire record to determine if there is sufficient evidence to support the court's determination. Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). The appellate court must give “great deference” to the trial court's decision on a challenge for cause “because the trial court is present to observe the venireperson, including the demeanor and tenor of voice of the venireperson.” Pyles v. State, 755 S.W.2d 98, 106 (Tex. Crim. App. 1988). We will reverse a trial court's ruling on a challenge for cause only if a clear abuse of discretion is evident. Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998). There is no abuse if the record supports the trial court's decision. Flores v. State, 871 S.W.2d 714, 718 (Tex. Crim. App. 1993).
        The penal code defines “bodily injury” as “physical pain, illness, or any impairment of physical condition.” Tex. Penal Code Ann. § 1.07(a)(8) (Vernon Supp. 2007). Here, during voir dire, the prosecutor explained that the term “bodily injury” includes any type of physical pain. The prosecutor inquired whether the prospective jurors would be able to find the bodily injury element in this case without photos or medical records. Prospective juror Collier stated, “I would have to see something. I couldn't take nobody's word on it.” When asked again later whether he would need to see physical evidence like photographs of injuries, Collier responded, “That's accurate.” Collier answered affirmatively when asked whether “that went to his level of beyond a reasonable doubt” and whether he wanted to be shown the evidence. Collier later stated, “I'm not going to believe it unless I see something . . . If somebody come in here saying my arm is hurting or something is hurting on me, you know, I just can't believe it.” The prosecutor then challenged Collier for cause.
        Prospective juror Davis stated he would be unable to find a person guilty without seeing physical evidence of injury even if he believed a witness beyond a reasonable doubt as to all the elements of the case. The trial court later asked both Davis and Collier whether, if they believed beyond a reasonable doubt that the State had proved all the elements of the offense, including that the complaining witness suffered bodily injury, would they still require additional evidence before they could find the defendant guilty. Davis answered, “No,” and Collier answered, “Not if they proved it, no.” However, the trial court then asked, “You don't believe that the State can prove to you that a person suffered bodily injury without some kind of physical evidence or medical evidence. Is that what you're telling the court?” Both Davis and Collier answered, Yes.” Thus, the record shows both Davis and Collier stated they would require physical evidence to establish bodily injury. Appellant quotes their responses that they would not require additional evidence if the State proved all the elements of the offense. However, Davis and Collier maintained the bodily injury element of the offense could not be proven to them in the absence of physical evidence. Under these circumstances, the trial court did not abuse its discretion in striking Davis and Collier for cause. See Feldman, 71 S.W.3d at 744; Flores, 871 S.W.2d at 718. We overrule appellant's first and second issues.
        In his third issue, appellant argues he received ineffective assistance of counsel because his counsel did not request a jury instruction on voluntary intoxication at punishment. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. The record in this case is silent as to why appellant's counsel chose not to request an instruction on voluntary intoxication. Appellant raises his claim of ineffective assistance for the first time on appeal; appellant did not make this claim at trial or in his motion for new trial. Under these circumstances, we conclude appellant has not met his burden to show his counsel provided ineffective assistance. Thompson, 9 S.W.3d at 813-14. We overrule appellant's third issue.
        In his fourth issue, appellant argues the trial court erred in overruling his objection to the State calling a witness solely to impeach her with a hearsay statement. To preserve a complaint for appellate review, a party must make timely, specific objection in the trial court. Tex. R. App. P. 33.1. The objection must state the grounds for the ruling that the complaining party sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Id. The objection must be made at the earliest possible opportunity, and the point of error must correspond to the objection made at trial. Martinez v. State, 867 S.W.2d 30, 35 (Tex. Crim. App. 1993). Where an objection does not comport with the complaint on appeal, the appellant does not preserve any error. Barley v. State, 906 S.W.2d 27, 37 (Tex. Crim. App. 1995).
        Here, the State called Monica Olivarez, who testified she had a protective order against appellant prohibiting him from committing violence against her or threatening her. Olivarez testified she was sixteen when the protective order was secured. During Olivarez's testimony, appellant objected to the prosecutor's questioning on the basis that certain questions asked about uncharged and extraneous conduct and called for a legal conclusion. Appellant objected that Olivarez lacked any reliable memory of the events, the prosecutor's whole line of questioning was inadmissible, and under rule 403 the danger of unfair prejudice outweighed any probative value of the uncharged, unconvicted conduct. However, appellant never made the objection, raised for the first time on appeal, that the State called Olivarez to testify solely to impeach her with a hearsay statement. Accordingly, we conclude this issue is not preserved for our review. See Tex. R. App. P. 33.1; Barley, 906 S.W.2d at 37. We overrule appellant's fourth issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070575F.U05
 
Footnote 1 Officer Blackwell's first name is not in the record.