Clinton Carroll v. The State of Texas--Appeal from 263rd District Court of Harris County

NO. 10-89-133-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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CLINTON CARROLL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 263rd Judicial District Court

Harris County, Texas

Trial Court #366,206

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O P I N I O N

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This is an appeal by defendant Carroll from his conviction for murder for which was assessed 19 years in the Texas Department of Corrections.

Defendant was indicted for the murder of Lo Edward Pennywell on October 12, 1982. In a 1983 trial, a jury found defendant guilty and assessed punishment at confinement in TDC for 19 years. The sufficiency of the evidence is not challenged. Defendant was granted an out-of-time appeal by the Court of Criminal Appeals and appeals on 2 points, each contending that his trial counsel failed to render effective assistance.

On October 12, 1982 at about 7:30 p.m. several young men, including Lo Edward Pennywell, were drinking beer in the front yard of a house when defendant and his brother drove up. Pennywell and defendant began to argue and had a confrontation. After the confrontation, Pennywell and some others went to the Madison Park Recreation Center. A short time later defendant and his brother entered the recreation center carrying shotguns. There was evidence Pennywell had a knife; and two witnesses heard defendant say, "I told you I was gon'na get you", to Pennywell. Defendant shot Pennywell with the shotgun from a distance of four feet and killed him.

Defendant fled but turned himself in to the police the following day. Defendant plead self-defense; and the court instructed on murder, voluntary manslaughter, involuntary manslaughter and negligent homicide, as well as self-defense. The jury convicted defendant for murder and assessed his punishment at 19 years.

As noted, defendant appeals on 2 points.

Point 1 asserts "the conduct of trial counsel denied [defendant] effective assistance of counsel and a fair trial at the guilt-innocence stage".

In order to show that he was denied effective assistance of counsel at the guilt stage of trial, defendant must satisfy the two-part test set out in Strickland v. Washington, U.S. S.Ct., 104 S. Ct. 2052. As summarized in Ingham v. State, Ct.Crim.Appls, 679 S.W.2d 503, such test provides:

The defendant must first show that counsel's performance was deficient, i.e., that his assistance was not "reasonably effective". Second, and assuming the defendant has first shown ineffective assistance, the defendant must affirmatively show prejudice. That is, defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

The right to effective counsel is not the right to error-free counsel. Hernandez v. State, Ct.Crim.Appls, 726 S.W.2d 53; and isolated failures to make objection to improper evidence does not establish that trial counsel was ineffective. Ingham v. State, supra.

Defendant complains that his counsel did not object when witness Stephen Moody, a bystander at the recreation center when defendant and his brother entered carrying shotguns, testified he heard defendant say, "I told you I was gonna get you" to the deceased. Moody further testified he had known defendant for about 12 years and was afraid of him. Defendant's counsel did not object to the latter testimony and defendant contends it suggested defendant was dangerous, of bad character, or had committed prior acts of misconduct.

Moody actually testified he was afraid of both defendant and Pennywell. So this testimony was not really damaging to defendant. Moreover, we do not think that it indicated that defendant was of bad character or had committed prior acts of misconduct. It might well have been merely stating he was afraid on this occasion because of the circumstances.

Defendant complains that his counsel did not object when witness Simmons and witness Green testified that the deceased was a good person. These two witnesses testified that the deceased was respectful, good with children, dependable, and coached the smaller children in basketball at the community center. Defendant contends that this testimony was "absolutely irrelevant".

There is no showing that failure of defendant's counsel to object to this testimony "undermines confidence" in the outcome of the guilt determination. We think evidence of defendant's guilt was overwhelming.

Defendant complains that counsel did not object to Detective Hermana's testimony that he considered the offense committed to be murder. Detective Hermana testified that on the night of the incident he went to the recreation center and interviewed witnesses. Hermana was then asked, "What did you learn from those witnesses concerning the nature of the homicide?", to which he replied, "It was a murder as far as I was concerned".

The very fact that defendant had been indicted for murder already indicated what the police thought about the case, as did Hermana's testimony that a murder complaint was filed. Moreover, the theory of self-defense, which defendant employed, essentially required a concession that the crime was a justified murder. No harm is shown.

Defendant complains that counsel did not object when Detective Hermana testified he was told that defendant admitted "to having committed the offense". This evidence, that defendant was forthright in acknowledging responsibility, was evidence in defendant's favor. Letting such matters in without objection is well within the range of acceptable defense strategy, and no harm is shown.

Defendant complains that counsel did not object when the prosecutor argued to the jury:

From my perspective and as I view the evidence, it's my opinion that the defendant is guilty of only one charge, and that is the charge of murder and not any lesser included offense * * I believe the facts of this case also do not support any self-defense claim * * . I don't believe Pennywell did draw a knife.

Defendant contends the foregoing was argument to the jury of his opinion concerning the guilt of the defendant which is impermissible.

The reference to the evidence in the case made it reasonably clear that the prosecutor was simply characterizing the evidence, and not simply giving his opinion, and no harm is shown.

Point 1 is overruled.

Point 2 asserts "the conduct of trial counsel denied [defendant] the effective assistance of counsel and a fair trial at the punishment stage".

Defendant contends counsel's failure to move for a mistrial after witness Willie Smith testified that she had raised Pennywell because his mother and infant sisters burned to death in a fire.

Willie Smith was Pennywell's grandmother and at the punishment phase she testified that Pennywell was 19 and had lived with her his entire life because his mother and 2 sisters had burned to death in a fire. When this testimony was offered defendant objected, which objection was sustained, and the trial court instructed the jury to disregard. Defendant's counsel did not move for a mistrial.

We think the sustaining of defendant's objection to the evidence and the instruction to the jury to disregard was sufficient to cure any possible harm. Nichols v. State, Ct.Crim.Appls, 754 S.W.2d 185.

Defendant also contends counsel failed to object to evidence and argument concerning the impact of Pennywell's death on his family. Willie Smith, the grandmother of the deceased, testified that the deceased had coached children's basketball to keep them off the streets; that the deceased had helped her by cutting her grass, putting out the trash, and going to the store; that the deceased caused no problems; and that 43 children bought flowers for his funeral.

Defendant's counsel did not object to the foregoing testimony, which defendant contends was evidence of the good character of the deceased and was calculated to create sympathy for the deceased and, as such, was not admissible. Evidence of a deceased's good character, or that he was peaceable and inoffensive is normally not admissible. But such evidence becomes admissible where, as here, the opposite has been testified to in behalf of the defense. Armstrong v. State, Ct.Crim.Appls, 718 S.W.2d 686.

Defendant also complains that counsel did not object when the prosecutor argued the above evidence to the jury. Since the evidence was admissible, it was proper for the State to refer to same in argument.

Finally, defendant complains that counsel failed to object to the prosecutor's summation in which he expressed his personal opinion that this was a revenge killing.

The State's attorney in final argument stated, "I don't believe the reason he was there was just to help his brother. I believe the reason that he was there was for revenge because he had been in a fight in front of acquaintances and friends".

Defense counsel did not object. The evidence was that, earlier in the day prior to the killing of the deceased, defendant and the deceased had an altercation. We think the argument construable that the evidence reflected such reason, and in any event the matter was harmless.

Point 2 is overruled.

Finally, we think that from the record as a whole, defense counsel performed in a most credible and professional manner, and that defendant did have effective assistance of counsel and a fair trial in both the guilt-innocence and the punishment phases of the case.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas, Justice

James (Retired) and Chief Justice

McDonald (Retired)

Affirmed

Opinion delivered and filed January 24, 1991

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