Amelia D. Johnson v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-95-100-CR

AMELIA D. JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 13,808

O P I N I O N

Appellant Amelia D. Johnson was found guilty by a jury of aggravated assault with a deadly weapon. Appellant was an inmate of the Mountain View Unit of the Texas Department of Criminal Justice, Institutional Division, on the occasion in which she hit Yvonne Mighell (who was a correctional officer) about the body and head with her fists and attempted to stab Mighell in the chest with a curling iron, resulting in a cut to the back of her head, two cuts on the top of her head, and several bruises on her upper body. After the punishment hearing the jury assessed Appellant's punishment at life in the Texas Department of Criminal Justice, Institutional Division.

Appellant, in her sole point of error on appeal, asserts that she received ineffective assistance of counsel in that her counsel failed to timely and properly object to certain prejudicial and inadmissible evidence during the punishment phase of the trial. We will overrule Appellant's point and contentions and affirm the trial court's judgment.

The proper test of effectiveness of counsel during the punishment phase of a non-capital case is determining first whether counsel was reasonably likely to render effective assistance and secondly whether counsel in fact rendered effective assistance. Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980); Craig v. State, 825 S.W.2d 128 (Tex. Crim. App. 1992). Under this standard the sufficiency of an attorney's assistance is gauged by the totality of the representation of the accused. Ex parte Cruz, 739 S.W.2d 53 at page 58 (Tex. Crim. App. 1987); this constitutional right to counsel does not mean errorless counsel or counsel whose competency is to be judged by hindsight. Ex parte Cruz, supra.

As stated, Appellant complains that her trial counsel was ineffective in failing to object to evidence of unadjudicated extraneous offenses as well as evidence of her reputation in the community for violence elicited during the punishment phase of her trial. Appellant's complaints were lodged against testimony of the following State's witnesses:

(1) Ronny Cline, an officer of the Temple Police Department, who testified that he first met Appellant in 1976 while investigating an aggravated assault concerning Appellant. He further testified that in 1991 he was a witness against Appellant in a federal possession of a weapon case in Waco; that through the years he had formed an opinion as to Appellant's reputation in the community for violence and that her reputation was bad.

(2) Brent Button, Sheriff of Hill County, Texas, testified concerning a homicide in which Appellant was involved in Hill County, and further testified that her general reputation in the community was bad, and that she was a violent person. Sheriff Button also testified that some nearby neighbors found the body of the deceased in the trunk of a car abandoned on the side of a road near Abbott, Texas, and the deceased's body was bloody and in poor condition.

(3) Murff Bledsoe, Assistant District Attorney of Bell County, testified that he knew Appellant after prosecuting her in 1991 for murder and aggravated kidnaping; the State offered in evidence a copy of the judgment of conviction for aggravated kidnapping; Appellant's counsel objected because the judgment was not certified; the trial court sustained Appellant's objection; thereafter the State proved by Mr. Bledsoe the name of the judge in the case, the defense attorney, the prosecutors and the date of the judgment. Mr. Bledsoe, in answer to how he knew Sheriff Button, testified that he met him during the investigation and prosecution of the murder and aggravated kidnapping cases in which Ms. Johnson was the defendant. Bledsoe also testified that Appellant's general reputation as a peaceable law-abiding citizen was bad and that she was a violent person.

Admissibility of evidence in the punishment phase which is complained of here by Appellant is governed by Art. 37.07, 3(a), Texas Code of Criminal Procedure, which was in effect on October 2, 1993, the alleged date of Appellant's offense, the pertinent part of which reads as follows:

(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act . . . .

All of the evidence complained of by Appellant is admissible under Art. 37.07, 3(a), Texas Code of Criminal Procedure, the pertinent portion of which is hereinabove quoted. See Standerford v. State, No. 2-94-511-CR, slip op. (Tex. App. Fort Worth, August 8, 1996, pet filed). Counsel is not ineffective for failure to raise an objection that lacks merit. Hall v. State, 853 S.W.2d 756, 759 (Tex. App. Houston [14th Dist.] 1993, pet ref'd).

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Davis

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed November 20, 1996

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