Shannon DeWayne Cook v. The State of Texas--Appeal from County Crim Court No 2 of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-180-CR

SHANNON DEWAYNE COOK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court No. 2

Dallas County, Texas

Trial Court # MA95-45855-B

O P I N I O N

Appellant Cook appeals his conviction for assault for which he was sentenced to one year in the Dallas County jail and a $4,000 fine.

Complainant Lohden and his friend Jimmy Mosley got off work on January 21, 1995, purchased some beer and arrived about 5:30 p.m. at the house where Complainant lived with his wife, two children, and his father. Appellant, who lives nearby, came over asking if he could drink with them. Because of Appellant's previous drunken behavior, Complainant told Appellant he could not come inside and told him to leave. Appellant called complainant names and left.

Appellant returned in about an hour and asked if he could come in and drink with them and when told to leave, did so but began cursing. Appellant returned a short time later. Complainant's wife answered the door and told Appellant to leave. When Appellant refused, Mosley asked him to leave and followed him into the street where Appellant's brother came towards them with a baseball bat. Mosley stumbled and fell to the ground. Appellant then jumped on Mosley and hit him in the face. Appellant again left but soon returned. He was again told he could not come in and again became angry. He then threw a brick through complainant's front door breaking the glass. Complainant, his wife, and Mosley went out on the front porch and found Appellant with another brick in his hand which he threw through the windshield of Complainant's father's car. Appellant then came onto Complainant's porch, threatened to beat-up Complainant and rape his wife, and then hit Complainant in the jaw. When Complainant fell, Appellant said, "Come on your bastard, let's fight." The police were called and they found Complainant with a bloody mouth, the damaged vehicle and the broken door.

Appellant was charged with assault and was tried before a jury which found him guilty and assessed his punishment at one year in jail and a $4,000 fine.

Appellant appeals on eight points of error.

Point one asserts the trial court committed reversible error when it refused to submit an instruction on self-defense to the jury.

Specifically, Appellant contends the testimony of the witness Robert Chambers can be construed as evidence that Complainant shoved Appellant off the porch before Appellant threw the punch, upon which the charged assault is based.

Under 9.31(a), Tex. Penal Code Ann., "a person is justified in using force against another person 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." But force is not justified if the actor provoked the other's use or attempted use of unlawful force. If the confrontation was provoked by the actor, his use of force is justified if he:

(A) . . . abandons the encounter, or clearly communicates to the other his intent to do so . . . and

(B) the other nevertheless continues or attempts use unlawful force against the actor.

Tex. Penal Code Ann. 9.31(b)(4)(A) and (B).

The evidence shows that an intoxicated Appellant harassed Complainant, his friends, and family for several hours. He repeatedly sought entry into Complainant's house and, when refused, threw a brick through the front door, also the windshield of the vehicle belonging to Complainant's father, and then threatened Appellant and his wife.

Nothing in Chambers' testimony, or that of any other witness, refutes this evidence. Thus provocation was established as a matter of law and Appellant was entitled to an instruction only if there was some evidence that he abandoned the encounter. Coble v. State, 871 S.W.2d 192, 202 (Tex. Crim. App. 1993).

Thus Appellant was not entitled to a self-defense instruction and the trial court's refusal to submit same to the jury was not error. Point one is overruled.

Point two asserts the conviction void because the State's attorney improperly referred to extraneous offenses after the court had granted the defense's motion in limine which ordered the State to not raise such without a hearing outside the presence of the jury.

Specifically, Appellant complains of the State's eliciting testimony from Complainant that Appellant "had done a lot of things wrong"; that Appellant "go by and fight. He always jumping on us, cussing us out; he gets drunk, he acts belligerent."

Appellant did not object to the above. To preserve error in the admission of an extraneous offense, a specific objection must be made at the time it was offered. Burks v. State, 876 S.W.2d 877, 899 (Tex. Crim. App. 1994).

Appellant further complains of the State's eliciting testimony from Complainant about an extraneous offense which occurred earlier in the night between Appellant and Complainant's friend Mosley. Complainant testified Appellant hit Mosley when Appellant came to Complainant's house earlier that night. Appellant objected but was overruled by the trial court.

The testimony of Complainant concerning Appellant's attack on Mosley was offered, not to show Appellant's criminal behavior, but to show the context of the charged assault. Such was admissible as "same transaction contextual evidence," and is admissible under the reasoning that events do not occur in a vacuum and a jury has the right to have the charged offense placed in its proper setting so that all the evidence may be realistically evaluated. Burks v. State, 876 S.W.2d 877, 900 (Tex. Crim. App. 1994).

Appellant's assault of Mosley was not a lone event unrelated to the charged offense. The assault was one of many offenses committed by Appellant in a continuing episode which eventually ended in the charged assault. The trial court did not err in admitting the complained of evidence. Point two is overruled.

Point three asserts the conviction void because the State's attorney improperly referred to the defendant's reputation after the court had granted the defense's motion in limine which ordered the State not to raise such without a hearing outside the presence of the jury.

Specifically, Appellant complains of testimony elicited from Complainant and his wife that Appellant "gets drunk, acts belligerent, is a bad influence on my family, has done lots of things wrong, and he fights always jumping on us, cussing us out."

Appellant did not object to the testimony when it was offered, thus failed to preserve for appellate review any error in the admission of the testimony. Tex. R. App. P. 52(a); Burks v. State, supra, at 899. Point three is overruled.

Point four asserts it was error for the State to inject injurious and prejudicial matters before the jury panel during voir dire examination.

Specifically, Appellant complains the prosecutor misstated the law on voir dire when he said, "conflicts are not sufficient to raise reasonable doubt."

Appellant did not object and has not preserved this complaint for review. Tex. R. App. P. 52(a). Point four is overruled.

Point five asserts Appellant failed to receive a fair trial because of the prejudicial jury argument of the prosecutor referring to the expectations and demands of the community for a particular result in this case.

Specifically, Appellant complains of the State's jury argument in the punishment phase as follows:

Ladies and gentlemen, a lot of times we sit around and think about why can't they do something about the crime in our community. This is the time when you can be "they." You can do something. You can send a message to this defendant that he cannot go around terrorizing people in his community and say he's going to beat their ass and rape their wives, go up on the porch and hit them, knock them down so they crack their head open.

I think you need to send a message to Shannon Cook and say his community that he lives in will not tolerate it, and you, the great community of Dallas, will not tolerate it. And I'd ask you to give him the full range of punishment which is a year in jail and a $4,000 fine.

Appellant did not object to the prosecutor's jury argument. To preserve improper jury argument for appellate review the accused must make a timely and specific trial objection. Romo v. State 631 S.W.2d 504, 505 (Tex. Crim. App. 1982); Tex. R. App. P. 52(a).

Moreover, the argument was a proper plea for law enforcement. Madden v. State, 721 S.W.2d 859, 862 (Tex. Crim. App. 1986); Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). Point five is overruled.

Points six, seven, and eight assert the conviction is void because Appellant's counsel did not render effective assistance.

Specifically, Appellant argues counsel rendered ineffective assistance by failing to object: (1) to extraneous offense and reputation testimony; (2) to statements made by the prosecutor during voir dire; and (3) to improper argument during the punishment phase. Strickland v. Washington, 446 U.S. 668 and Hernandez v. State, 726 S.W.2d 53, 57 set the standard for analyzing a claim of ineffective assistance of counsel. Those cases require a showing that counsel's performance was deficient plus a showing that the deficiency so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. This is judged by the totality of counsel's representation and not by isolated acts and omissions. Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1980). The right to effective assistance of counsel is the right to reasonably effective assistance, not errorless representation. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986).

Although counsel's failure to object to the alleged errors waived these grounds for review, the Court of Criminal Appeals has declined to hold that such action may automatically be transformed into grounds for relief for ineffective assistance. Ex parte Ewing, 570 S.W.2d 940, 941 (Tex. Crim. App. 1978).

This record shows that counsel filed numerous pretrial motions, conducted extensive voir dire of the jury panel, vigorously cross-examined the State's witnesses, made numerous objections, attempted to raise the issue of self-defense and obtain a jury instruction thereon, and made jury arguments urging acquittal and later leniency in punishment.

Appellant's allegations of ineffective existence of counsel are without merit. Points six, seven and eight are overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed June 26, 1996

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