Eddie Lavan Kearse v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

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MEMORANDUM OPINION
No. 04-06-00421-CR
Eddie Lavan KEARSE,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-2907
Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: December 19, 2007

 

AFFIRMED

Eddie Lavan Kearse was convicted by a jury of murder and sentenced to ninety-nine years in the Texas Department of Criminal Justice. Kearse appeals his conviction arguing he received ineffective assistance of counsel in violation of his constitutional rights, and the trial court failed to exclude inadmissible hearsay. We affirm the judgment of the trial court.

 

Background

After a confrontation in a parking lot, Eddie Kearse shot and killed Celestino Pardo, Jr. while Pardo sat in the cab of his pickup truck. Pardo was sitting next to Melanie Villarreal, Kearse's ex-girlfriend, at the time of the murder. After the shooting, Kearse left the scene with his daughter, her boyfriend, and Stephanie Villarreal, Melanie's sister. Kearse went home, evaded police while disposing of the gun, and surrendered at police headquarters several hours later. At trial, Kearse testified on his own behalf, admitted he shot Pardo but did not intend to kill him, and apologized to Pardo's family for what he had done. Kearse was convicted of murder, and this appeal followed.

Ineffective Assistance of Counsel

A. Standard of Review

A defendant is entitled to effective assistance of counsel under both the United States and Texas Constitutions. U.S. Const. amend. VI; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2007). To prove ineffective assistance of trial counsel on appeal, an appellant must show: (1) counsel's assistance fell below an objective professional standard; and (2) counsel's actions thereby prejudiced appellant's defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant must prove, by a preponderance of the evidence that, but for counsel's error, the outcome of his trial would have been different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In reviewing an ineffective assistance of counsel claim, we consider the totality of counsel's representation in light of the particular circumstances of the case and presume that counsel acted competently and made decisions based on a reasonable trial strategy. See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). To rebut this presumption, the basis for any allegation of ineffectiveness must be affirmatively founded in the record. Thompson, 9 S.W.3d at 813. It is very difficult for an appellant to meet this burden when the record does not specifically mention counsel's reasons for his actions and appellant does not develop an evidentiary record through a hearing on a motion for new trial. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). Even if appellant is able to prove trial counsel's performance was deficient, appellant must also affirmatively prove that he was prejudiced by counsel's actions. Thompson, 9 S.W.3d at 812. Therefore, a "substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal." See id.

B. Discussion

In four points of error, Kearse argues that his trial counsel was ineffective by failing to: (1) object to improper victim impact evidence and improper jury argument during both phases of trial; (2) request jury charges on criminally negligent homicide and sudden passion; (3) object to hearsay regarding threats allegedly made by Kearse; and (4) obtain admissible documents showing Kearse's attempt to better himself.

Kearse did not file a motion for new trial; therefore, there is no record disclosing the reasons counsel made the decisions he did. Consequently, counsel's ineffectiveness, if any, is not firmly founded in the record. See Thompson, 9 S.W.3d at 813 (indicating allegation must be firmly founded in the record). Because we may not speculate about the reasons for counsel's trial strategy, Kearse has failed to rebut the presumption that counsel made trial decisions based on sound professional judgment. See Hernandez v. State, 198 S.W.3d 257, 270-71 (Tex. App.--San Antonio 2006, pet. ref'd). Although the silent record defeats the ineffective assistance claims raised by Kearse, we briefly address how these claims fail in view of the present state of the record because the record fails to establish either deficient performance or prejudice. This brief analysis should not, however, preclude Kearse from pursuing his claims through a writ of habeas corpus where a more complete record could change the analysis and, possibly, the result. See Thompson, 9 S.W.3d at 814-15.

I. Victim Impact Statement

Relevant evidence is admissible because it has a tendency to make the existence of a consequential fact more or less probable than it would be without the evidence. Tex. R. Evid. 401; 402. Victim impact evidence is inadmissible during the guilt-innocence phase of trial because it does not tend to prove consequential facts. See Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990). Nevertheless, a victim's irrelevant testimony may not be so "'emotionally charged' as to prevent the jury from rationally considering the evidence before it." Motilla v. State, 78 S.W.3d 352, 359 (Tex. Crim. App. 2002).

Kearse contends that the "emotional power" of the testimony of Pardo's mother forced the jury to punish Kearse for inflicting grief and loss upon Pardo's mother. However, the testimony of Pardo's mother "was brief and bore no relationship to the sole contested issue in the case, [Kearse's] intent" to kill Pardo. Id. Even if trial counsel should have objected to the mother's testimony, Kearse admitted shooting Pardo three times; therefore, it is unlikely that the outcome of the trial would have been different if trial counsel had objected.

II. References to Victim's Family During Argument

Proper jury argument must be one of four types: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to the argument of opposing counsel; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). References to a victim's family during argument are typically not allowed during the guilt-innocence phase of trial, Miller-El, 782 S.W.2d at 895, but may be introduced at the penalty phase. Jackson v. State, 33 S.W.3d 828, 833 (Tex. Crim. App. 2000). A defendant must make a timely objection to preserve error unless the jury argument is so prejudicial that an instruction to disregard the argument could not cure the harm. Harris v. State, 784 S.W.2d 5, 12 (Tex. Crim. App. 1989).

Kearse claims that he was prejudiced when trial counsel deficiently failed to make an objection to the State's argument during guilt-innocence and again during punishment. Even if trial counsel should have objected during guilt-innocence, the State's argument was neither extreme nor manifestly improper so as to require reversal. Guidry, 9 S.W.3d at 154. According to the record, the prosecutor merely referred to Kearse's own testimony in which Kearse expressed hope that his statements gave Pardo's family some closure. The prosecutor closed her guilt-innocence argument by saying:

Ladies and gentlemen, this morning the defendant looked at Celestino's mother and said, I hope what I'm saying gives you some closure. . . . Well, ladies and gentlemen, what I'm saying to you is that you are the only ones that can give this family some closure.

 

We consider the prosecutor's argument to be a summary of the testimony, which is not prejudicial to Kearse given his own statements. Furthermore, the prosecutor argued during punishment:

We understand that what we're asking you to do is very important. But I ask you to remember that it is also important for Celestino's family what you do . . . Celestino's family will never ever see him again and that is because of this defendant. From all the facts that you've heard the appropriate sentence in this case is not probation, and it's not five years, or ten years, or 15 years or 20 years. It is something that is real. . . . And the family will hear you.

 

When we consider the contested comments in the context of the entire jury argument rather than as isolated remarks, it is improbable that these comments prejudiced Kearse. See Denison v. State, 651 S.W.2d 754, 761-62 (Tex. Crim. App. 1983).

III. Jury Charge on Criminally Negligent Homicide and Sudden Passion

Kearse contends trial counsel was ineffective when counsel failed to request a jury charge on criminally negligent homicide and sudden passion. "Before a charge on criminally negligent homicide is required, the record must contain evidence showing an unawareness of the risk. Simply because the defendant did not intend the result does not automatically entitle [him] to a charge of criminal negligence." Lewis v. State, 866 S.W.2d 272, 275 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd) (citations omitted). Furthermore, sudden passion requires evidence of actual subjective sudden passion arising from an adequate cause. Daniels v. State, 645 S.W.2d 459, 460 (Tex. Crim. App. 1983). Kearse's "bare claim" of fear, even when coupled with evidence that Pardo used aggressive words and reached under his seat, is not enough to evince sudden passion. Id. Because we have no record of counsel's motivation for choosing the jury charge that he did, however, we may not speculate that the reason was due to unsound or unprofessional grounds. Hernandez, 198 S.W.3d at 270.

Even if we were to conclude that the evidence prompted a jury charge on criminally negligent homicide and sudden passion, we cannot conclude that counsel's failure to request the charge resulted in prejudice to Kearse. See id. Given Kearse's testimony that he intentionally shot Pardo, trial counsel may have decided that it was more effective to focus the jury on the self-defense and manslaughter charges rather than confusing them with other, less supported, charges. See id. Moreover, because the jury penalized Kearse with the maximum sentence allowed even though the jury was charged with the lesser-included offense of manslaughter, the record does not establish that Kearse would have been acquitted or received a lesser sentence regardless of any alternate charges. See Thompson, 9 S.W.3d at 812.

IV. Hearsay Regarding Kearse's Threats

Kearse argues that trial counsel was inadequate when he failed to object to the State's evidence of Kearse's threats against Pardo. According to the record, trial counsel objected several times to Officer Stanush's testimony that, on the night of the shooting, Melanie told Officer Stanush that Kearse had previously threatened Pardo. However, Officer Stanush's testimony regarding Melanie's statements was admitted as an excited utterance exception to hearsay. Regardless of whether the testimony was an exception to the rule against hearsay, Kearse's counsel made multiple objections to the hearsay evidence, which is sufficient to show counsel's exercise of reasonable professional responsibility. See Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). Because Kearse failed to rebut the presumption that his trial counsel acted effectively, and given the record of trial counsel's numerous objections, the record does not establish that counsel's performance was deficient. Id.

V. Admissible Documents Showing Kearse's Attempt to Better Himself

Documentation of Kearse's participation in several self-help programs while he was incarcerated as he waited for trial was not admitted because trial counsel did not establish the proper predicate. Even if trial counsel was deficient in failing to establish a proper predicate for the documents, Kearse was not prejudiced by the omission of the documentary evidence because the information regarding Kearse's participation in the programs was admitted through Kearse's own testimony.

 

Failure to Exclude Inadmissible Hearsay

A. Standard of Review

There is no rigid rule governing the admissibility of statements under the excited utterance exception. Jones v. State, 772 S.W.2d 551, 554-55 (Tex. App.--Dallas 1989, pet. ref'd). Rather, trial courts may consider: (1) whether the declarant was still under the stress of excitement caused by the event; and (2) other factors such as the length of time between the statement and the event, and whether the statement was spontaneous or in response to a question. Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex. Crim. App. 2005). We review a trial court's decision to admit evidence for an abuse of discretion. Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003). If the trial court's ruling is within the zone of reasonable disagreement, we affirm. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

B. Discussion

Kearse argues that the trial court erred in admitting Melanie's out-of-court statements regarding Kearse's alleged threats against Pardo. The trial court admitted Officer Stanush's testimony about Melanie's statements over objection from Kearse's counsel. The record shows that each time Kearse objected, the State renewed its predicate establishing Melanie was "dominated by the emotions, excitement, fear, [and] pain of the event" when she made the statements to Officer Stanush. See Zuliani v. State, 97 S.W.3d 589, 596 (Tex. Crim. App. 2003) (quoting McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994)). The State's evidence established that Melanie: (1) was present when Kearse shot Pardo; (2) was screaming hysterically when Officer Stanush arrived; (3) sobbed and cried while trying to tell Officer Stanush what had happened; and (4) never completely calmed down while Officer Stanush questioned her at the scene. Based on the evidence presented, the trial court did not abuse its discretion in admitting Melanie's statements because they were made while she was still "visibly . . . upset" from the startling event. See Zuliani, 97 S.W.3d at 596. Additionally, the fact that Melanie's statements were sometimes responses to Officer Stanush's questions did not make them inadmissible hearsay. Id.

Conclusion

Because Kearse did not provide an adequate record to evaluate trial counsel's reasons for his actions during trial, Kearse failed the first prong of the Strickland test for ineffective assistance of counsel. Furthermore, the trial court did not abuse its discretion in admitting evidence of Melanie's hearsay statements. Therefore, we affirm the judgment of the trial court.

 

Catherine Stone, Justice

DO NOT PUBLISH

 

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