Deangelo Von Franklin v. The State of Texas--Appeal from 177th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-137-CR

&

No. 10-93-138-CR

DEANGELO VON FRANKLIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 177th District Court

Harris County, Texas

Trial Court Nos. 637,096 & 637,097

O P I N I O N

Appellant Franklin appeals his convictions for attempted murder and murder, for which he was sentenced to fifteen years for the attempted murder, and life for murder.

Appellant was charged in two separate indictments with the attempted murder of Donice Smith and with the murder of Rodney Parker. The two cases were tried together, were appealed at the same time, and are before this court on consolidated briefs and a single statement of facts.

On the evening of June 27, 1992, Donice Smith, his uncle Bernard Walker, and Donice's friend Kim went to the Grand Prix Club in Houston. Kim's sister followed in her own car. Kim got out of the car on the parking lot to talk to her sister while Donice waited by the car. When Kim returned, she told Donice that someone in a Mazda automobile was bothering her. As they walked toward the club, the occupants in Mazda drove up. Appellant, who was in the passenger seat, threatened to kill Donice. Bernard walked between Donice and the car and told Appellant a fight was not necessary. Appellant, who had a gun, said he would wait until he could catch Donice alone then the occupcants in the Mazda drove away.

Donice, Bernard and Kim went into the club. A few minutes later Appellant entered the club, came up to Donice, and Donice asked him why he wanted to shoot him. Appellant and Donice then cursed each other and started to fight. A group of people came between them and Appellant left the club. Donice and Bernard then left the club and discovered Appellant standing just outside the door. Appellant shot Donice in the shoulder. Donice ran back into the club. Appellant walked into the club and fired two shots into the ceiling and left. The club owner, who witnessed the shooting, got his gun. Appellant then walked back into the club with his pistol in his hand, fired three more shots, and then ran out. The body of Rodney Parker was discovered in the back of the club. Parker was killed by a bullet from the weapon Appellant was carrying. Appellant was shot in the hip by the club owner and was arrested.

Appellant was convicted for the attempted murder of Donice Smith and the murder of Rodney Parker. He appeals on four points of error.

Point one asserts that Appellant's trial lawyers failed to render effective assistance of counsel on the issue of Appellant's guilt.

When a convicted defendant complains of ineffective assistance of counsel, he must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. The court must determine whether, in the light of all the circumstances, identified acts or omissions were outside the range of professionally competent assistance. Counsel is strongly presumed to have rendered adequate assistance.

Appellant must further show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. State, S. Ct., 466 U.S. 668; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.).

The right to reasonably effective assistance of counsel does not guarantee errorless representation, but instead affords an attorney "reasonably likely to render and rendering" reasonably effective assistance. The burden of proving ineffective counsel is on Appellant. Such contention must be proved by a preponderance of the evidence. In determining whether there was ineffective assistance of counsel, the trial as a whole must be looked at, and not the isolated incidents of counsel's performance. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App.).

Appellant cites six incidents of alleged defective representation. First, his attorney was ineffective because he failed to object to the following underlined portion of the prosecutor's closing argument:

"Remember you start with murder, you move to voluntary manslaughter, to involuntary manslaughter. That's the progression of your thought process. No matter what you find, if you find him not guilty, he walks away and you don't do any more consideration."

The prosecutor's argument merely reminded the jury that the defendant cannot be punished unless he is first convicted. As such, these remarks constitute a plea for law enforcement. Martinez v. State, 715 S.W.2d 725, 727 (Tex. App. Houston [14th Dist.]). Defense counsel had no basis for an objection. Thus, he was not ineffective because of his failure to make a meritless objection.

Appellant's second complaint is that his attorney was ineffective because he failed to object to the following underlined portion of the prosecutor's closing argument:

"Now, we asked him [defendant] how many times did he fire the gun. Two times, two times. But I asked him: Did you have six cartridges in your gun? Yeah, I had six cartridges in my gun. If he had the full six cartridges in his gun and he only fired two shots that whole night, where are the other four? He is lying through his teeth. And that's the dead proof right there. That man is looking at life in the penitentiary for murder and he just got up there and lied to you.

Appellant claims the prosecutor injected his personal opinion through unsworn testimony and asked the jury to consider the amount of punishment.

The prosecutor's argument that Appellant lied was not a statement of personal opinion, but was a reasonable deduction from the evidence. The prosecutor first pointed out that Appellant's testimony was contrary to the physical evidence, and then deduced that the only explanation was that Appellant was lying. In such situation, the argument was proper. Delgado v. State, 840 S.W.2d 594, 602 (Tex. Crim. App.). Defense counsel was not ineffective for not objecting to a proper argument.

Appellant's third complaint is that his trial attorney was ineffective because he failed to object when the prosecutor allegedly argued his personal opinion that the State's witnesses had told the truth, based on the following underlined argument:

"You've got over the course of two days 13, or so, witnesses. They each said different things because they saw things from a different view. No one was lying or making up things. Each was in a different vantage point that day or that night.

. . .

What happened that night was this. He [defendant] comes up there just like the witnesses testified. He goes up there and he's angry because he's gotten in an altercation. He gets in a shoving match with Donice and he goes and gets his gun. He does exactly what Donice and Bernard said. Donice has got no reason to lie. He's got bullet holes in the side of his arm. You saw them. He got shot in the arm. And you know why Donice didn't lie? He [defendant] ran. He [Donice] stayed there and waited for the police to come.

The prosecutor's complained of statements are reasonable deductions from the evidence. Moreover, Appellant's counsel did object to the last statement, "Donice had no reason to lie," and the trial court gave the jury a curative instruction that it was improper for an attorney to give his own opinion, but that it was proper for an attorney to argue the evidence and make reasonable deductions therefrom. Appellant's complaint is without merit.

Appellant's fourth complaint is that his trial attorney was ineffective because he did not object to hearsay testimony.

Appellant contends the testimony of Donice Smith was hearsay when he testified:

"Kim walked up to me and told me someone was bothering her, and she said they were driving a black Mazda."

Appellant further complains his attorney did not object when Bernard Walker testified he heard his nephew [Donice] say that he [Appellant] "wasn't going to kick his [Donice's] ass."

Hearsay is testimony about an out of court statement offered to prove the truth of the matter asserted. But an out of court statement offered to show what was said rather than the truth of what was said is not hearsay. Livingston v. State, 739 S.W.2d 311, 331 (Tex. Crim. App.).

The above complaints are meritless.

Appellant complains his attorney did not object when Officer Murchison testified:

"The shouting stopped as quickly as it began, and then witnesses came running to the patrol car pointing to the defendant" and "But when the shouting stopped, several of the people who came out of the club, said `there he goes, that's the guy that did the shooting.'"

These statements were admissible under the excited utterances exception to the hearsay rule. An excited utterance is a "statement relating to a startling event or condition made while the declarant is under the stress or excitement caused by the event or condition." Tex. R. Crim. Evid. 803(2). A shooting had just taken place. The witness's remarks were admissible. Counsel cannot be faulted for not making a meritless hearsay objection.

Appellant's fifth complaint is that his trial counsel failed to object to a comment of the trial judge. Donice Smith testified that before coming to the club he had nothing to drink.

QDid anybody else have anything?

ABernard drunk before he came to the club.

QWhat did he drink?

AI don't know what he had to drink.

QWas he drunk then. You said he was drunk.

ANo, I said . .

THE COURT: Counsel, please don't misquote the witness.

Appellant argues that the judge's remark interpreted Donice's testimony as meaning that Bernard drank before going to the club, rather than that Bernard was drunk before going to the club.

We think the trial judge correctly interpreted the statement. But in any event the comment was not calculated to injure Appellant's rights or cause him to have other than a fair and impartial trial. Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App.).

Finally Appellant contends his trial counsel was derelict because he failed to lay a proper predicate to impeach State's witness, Sheila Woodson, with a prior inconsistent statement.

There is nothing in the record to show that the statement was inconsistent. The statement was not made a part of the record either by way of a bill of exceptions or a motion for new trial.

Point one is overruled.

Point two: "Appellant's trial lawyers failed to render effective assistance of counsel on the issue of Appellant's punishment."

The test for effectiveness of counsel in the punishment phase of a non-capital offense is whether counsel rendered reasonably effective assistance. Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App.).

Appellant also contends his trial attorney was ineffective because he did not object to the State's introduction of evidence of his prior deferred adjudication probation. The Code of Criminal Procedure Art. 42.12, sec. 5(c)(1), provides that upon conviction of a subsequent offense, the fact that the defendant had previously received community supervision with a deferred adjudication of guilt shall be admissible before the court or jury to be considered on the issue of penalty. Nelson v. State, 828 S.W.2d 185, 188 (Tex. App. Houston [14th Dist.]). Defense counsel is not ineffective because he failed to object to admissible evidence.

Appellant complains of his trial attorney's failure to object to Officer Ware's testimony that Appellant's reputation as a peaceful and law-abiding citizen is bad. The record reflects that defense counsel did object and was overruled by the trial court. Moreover, Officer Ware's testimony was admissible.

Appellant argues his trial attorney was deficient because he withdrew the defense's motion for probation. The record reflects that defense counsel discussed this matter fully with Appellant and Appellant told the court that he wanted the motion for probation withdrawn. The record shows that Appellant knew the consequences of this decision, yet agreed with his defense counsel's strategy. In such situation, Appellant's complaint is without merit. McFarland v. State, 845 S.W.2d 824, 845 (Tex. Crim. App.).

Appellant's final ineffective assistance complaint is that his attorney failed to object to the State's closing argument wherein the prosecutor stated: "I want to add to that drug deliveries, the death of Rodney Parker, the attempted murder of Donice Smith . . . " Appellant asserts there was evidence of only one drug delivery and that the prosecutor injected an additional offense into the case by making the word "delivery" plural.

This isolated failure of defense counsel to object is not indicative of ineffective counsel in view of the record as a whole. The record reflects that trial counsel conducted a thorough voir dire examination of the jury panel, rigorously cross-examined the State's witnesses, and lodged appropriate objections. Counsel was well prepared and familiar with the facts of the case. We hold that the totality of counsel's representation reveals that he was not ineffective.

Point two is overruled.

Points three and four assert that the trial court committed reversible error by overruling Appellant's objection to Larry Ware's opinion that Appellant's "peacefulness" and "law abidance" in the community was "bad." Officer Ware testified that he was a police officer in June 1992; that he knew Appellant; that he had an opinion as to the "peacefulness" and "law abidance" of defendant in the community and that it was "bad." Officer Ware's reputation testimony was admissible. Moreover, if it was not admissible, we hold the matter harmless under this record. Tex. R. App. P. 81(a)(2).

Points three and four are overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 8, 1995

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