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

MEMORANDUM OPINION
No. 04-02-00324-CR
Martin LEWIS,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CR-5986
Honorable Bert Richardson, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 19, 2003

AFFIRMED

After a bench trial, Martin Lewis ("Lewis") was convicted of aggravated assault with a deadly weapon and sentenced to fourteen years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Lewis contends that he was denied the effective assistance of trial counsel and challenges the sufficiency of the evidence to support his conviction. We overrule Lewis's issues and affirm the judgment of the trial court.

Background

The parties do not appear to dispute that in the early morning hours of July 16, 2000, Lewis called his son's mother, Patricia Ordonez ("Patricia"), to meet him at her house. Lewis intended to pick up his son pursuant to a verbal visitation agreement he had with Patricia. At the time Lewis called Patricia, she was at her brother's house celebrating his birthday. Upon receiving Lewis's phone call, Patricia asked her brother, Freddie Ordonez ("Ordonez"), to take her home. Ordonez agreed, and he and his nephew, Joe Luis Rivera ("Rivera"), drove Patricia and her son home.

When they arrived at Patricia's home, Lewis and his parents, Edward and Mary Lou Lewis, were waiting for them. Patricia had called Lewis's parents after she had spoken to Lewis. At some point, Lewis, Ordonez, and Rivera exchanged words. A fight eventually ensued. According to Ordonez, Lewis approached him and stabbed him. Edward aided Lewis by holding Ordonez. According to Lewis, he was first approached by Ordonez and Rivera, who attacked him. Lewis admits that he had a knife; however, he claims that he used the knife in self-defense. Ordonez sustained eleven stab wounds as a result of the fight. Subsequently, Lewis was indicted on charges of aggravated assault with a deadly weapon. At trial, he raised the issue of self-defense. The trial court found Lewis guilty of aggravated assault with a deadly weapon. Lewis appealed.

Ineffective Assistance of Counsel

In his first four issues, Lewis contends his trial counsel was ineffective. The United States Supreme Court set forth the legal standard to be applied in cases of this nature in Strickland v. Washington, 466 U.S. 668 (1984). An appellant must first show that the representation by his trial counsel fell below an objective standard of reasonableness. Id. at 687-88. Second, an appellant must show that within reasonable probability the proceeding would have ended differently but for the challenged conduct. Id. at 694. An appellant's failure to prove either the required showing of deficient performance or sufficient prejudice defeats his claim of ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.1999).

A reviewing appellate court must apply a strong presumption that trial counsel's questioned conduct falls within a wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) cert. denied, 532 U.S. 1053 (2001). The Texas Court of Criminal Appeals has stated that claims of ineffective assistance must be firmly founded in the record, and the record must demonstrate the alleged ineffectiveness. See Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Generally, the record on direct appeal will not be sufficient to show trial counsel was so deficient as to fall below an objective standard of reasonableness because "[t]he reasonableness of counsel's choices often involves facts that do not appear in the appellate record." Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

Lewis first contends that trial counsel was ineffective because he failed to object to testimony provided by the State's witness, Dr. C.V. Surendaranath, regarding the possible physical positions of Ordonez and Lewis at the time Ordonez was stabbed. Specifically, Lewis argues that Dr. Surendaranath was not qualified to respond to the hypothetical questions by the State as to how Ordonez's injuries were inflicted.

The record reflects that the State asked Dr. Surendaranath to testify, based on his experience as a doctor, whether "the injury could have been sustained if the individual that had the knife in his hand, were on the ground, on his back and Freddie [Ordonez] was on top of him . . . ." Trial counsel objected to Dr. Surendaranath's testimony on the grounds that the doctor lacked personal knowledge; however, the objection was overruled by the trial court. The State rephrased the question, asking "let's say Mr. Ordonez is on top of him, sitting on top of him, can you tell if it's [sic] possible that [the] injury could be sustained in that manner or would they have to be in a different physical relationship to each other?" In response, Dr. Surendaranath testified that it would be "difficult if somebody were on the ground to get to the injury, " but that he could not be "definite in that." The State also asked Dr. Surendaranath about the laceration on Ordonez's chest as follows:

[State's counsel]: [C]an you tell from those pictures, the range of motion that will be required for the individual to inflict those injuries? I mean, would they need free movement of their arms and some space between themselves and the individual they're [sic] cutting or could they be in close physical contact?

[Dr. Surandaranath]: Well this is a long laceration. The range of laceration is nearly a foot, so it has travelled [sic] that far.

[State's counsel]: Okay. So, the individual holding the knife would have to be able to swing their arm at least a foot in length, right?

[Dr. Surandaranath]: That is correct. Yes.

Contrastingly, on cross-examination by trial counsel, Dr. Surendaranath testified that an individual on his knees and waving a knife could have inflicted Ordonez's chest injuries.

The record is silent as to why trial counsel did not raise the objection now suggested by Lewis that Dr. Surendaranath was not qualified to give such testimony. See Mallet, 65 S.W.3d at 63. We can only speculate that trial counsel chose not to object to the doctor's qualifications in order to elicit favorable opinion testimony on cross-examination as part of his trial strategy. See Chambers v. State, 903 S.W.2d 21, 33-34 (Tex. Crim. App. 1995) (speculating that trial counsel failed to strike for cause or further questioned juror because juror was an attractive candidate for defense); Villatoro v. State, 897 S.W.2d 943, 946 (Tex. App -Amarillo 1995, pet. ref'd). As such, we must presume trial counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689.

Lewis also contends that trial counsel was deficient in failing to object to Detective Ramiro Alvear's ("Alvear") testimony regarding blood splatters found on Lewis's shirt. Lewis contends that Alvear was not qualified to give such testimony, but here too, the record is silent as to why trial counsel did not raise an objection to Alvear's testimony. Moreover, Lewis has not made a showing that an objection to Alvear's qualifications would have been sustained. See Frohne v. State, 928 S.W.2d 570, 576 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). As a matter of sound trial strategy, trial counsel chose to elicit testimony from Alvear on cross-examination that the blood splatters were also consistent with someone on their knees defending themselves against more than one person. Having reviewed the record, we conclude that Lewis has not rebutted the presumption that trial counsel's conduct was within the range of reasonable professional assistance. See Strickland, 466 U.S. at 689.

In his third and fourth issues, Lewis argues that trial counsel was also deficient in failing to call an expert witness to testify about blood splatter patterns and a medical doctor to testify about his injuries. Lewis contends that he needed testimony from these witnesses to support his defense. Trial counsel's failure to call these witnesses, however, is irrelevant absent a showing that such witnesses were available and that Lewis would have benefitted from their testimony. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). Lewis has made no showing that such witnesses were able to testify. Accordingly, we must presume trial counsel's decision not to call such witnesses was within the range of reasonable professional assistance. See Strickland, 466 U.S. at 689.

Lewis has failed to establish trial counsel's representation fell below an objective standard of reasonableness. Accordingly, we overrule his first four issues.

Sufficiency of the Evidence

In his fifth and seventh issues, Lewis contends that the trial court "abused its discretion" in finding he was guilty based upon testimony that was never provided and failing to consider his issue of self-defense. The State contends that Lewis is basically challenging the sufficiency of the evidence to support his conviction. We agree with the State.

Lewis contends that Dr. Surendaranath never testified that Ordonez's arms were being held back when he received stab wounds to the chest. The record, however, reflects that Dr. Surendaranath did testify on redirect examination that certain chest injuries were consistent with Ordonez's arms being held back by another individual. Accordingly, Lewis's fifth issue is without merit.

The issue of self-defense is an issue of fact to be determined by the fact finder. Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991). A verdict of guilt is an implicit finding rejecting a defendant's self-defense theory. Id. at 914. For purposes of our sufficiency review, we determine whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and would have found against Lewis on the self-defense issue beyond a reasonable doubt. See Williams v. State, 911 S.W.2d 191, 194-95 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (citing Saxton, 804 S.W.2d at 914)).

A person commits the offense of aggravated assault if he (1) intentionally, knowingly or recklessly, (2) causes bodily injury to another, (3) with a deadly weapon. Tex. Pen. Code Ann. 22.02(a)(2) (Vernon 2003). "A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Pen. Code Ann. 9.31(a) (Vernon 2003).

Evidence was introduced at trial to suggest that Lewis was the aggressor in assaulting Ordonez and was not acting in self-defense. On cross-examination, Patricia testified that Lewis was upset and mad when he called her on her cell phone and told her to "get her butt home." In response, she called his parents, because they had always interceded in the past. When she arrived at her home, Lewis and his parents were there. Lewis approached her and indicated that he was going to take his son. When Rivera told Lewis he was not going to take the child at 2:00 a.m., Lewis responded with a derogatory remark and flashed a flashlight in Rivera's face. When Lewis's mother attempted to intercede and told Lewis he could not take the child, Lewis stated "the hell I'm not."

Rivera testified that Lewis and Patricia argued about the baby. Rivera told Lewis that he could not take the child because he had been drinking. In response, Lewis approached him and shined a flashlight in his face. Rivera also saw Lewis approach Ordonez. Ordonez testified that upon seeing the exchange between Lewis and Rivera, he got out of his vehicle and told everyone to go. Lewis reacted by approaching him with the flashlight and cursing. Lewis then swung his arms at Ordonoz striking him in the chest. Ordonez asked Lewis why he had hit him. Lewis responded by shining the flashlight in his face. Ordonez pushed the flashlight away, and Lewis struck him under the arm. Ordonez realized he had been stabbed and, in return, hit Lewis knocking him to the ground. Ordonez recalled that Edward then placed his arms around him and held him back. Lewis struck Ordonez again. Ordonez escaped from Edward's grip and ran to his vehicle. Ordonez, however, fell down and was stabbed by Lewis again.

Contrastingly, Lewis testified that Rivera and Ordonez approached him. He initially stepped back from both men. According to Lewis, Ordonez slammed him to the ground, and he and Rivera hit and kicked him. Because he was being beaten, Lewis used his knife to defend himself. Edward similarly testified that he saw Lewis step back from Ordonez and Rivera. Edward also saw Lewis fall to the ground and Ordonez and Rivera beating him.

In summary, the trial court was faced with different versions of what occurred and resolved the conflicts in the testimony against Lewis. As the trier of fact, the trial court was entitled to believe all, some, or none of the witnesses' testimony. Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support a finding that Lewis committed the offense of aggravated assault with a deadly weapon and did not act in self-defense. See Williams, 911 S.W.2d at 195.

In his sixth issue, Lewis contends the trial court "abused its discretion" in finding him guilty based upon expert testimony provided by unqualified witnesses. Lewis, however, does not brief this argument by citing to authority or providing references to the record. See Tex. R. App. P. 38.1(h). Assuming that Lewis references the testimony of Dr. Surendaranath and Alvear, he fails to assert how these witnesses were unqualified. Accordingly, the issue is not properly before us.

We overrule Lewis's seven issues on appeal and affirm the judgment of the trial court.

Phylis J. Speedlin, Justice

DO NOT PUBLISH