Doyle Sherman Ard v. State of Texas--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-00-283-CR

DOYLE SHERMAN ARD,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # F33777

O P I N I O N

On New Year s Eve, Doyle Sherman Ard and Robert Davis were at Ard s apartment. Both were intoxicated. Ard got a pistol and discharged it twice, seriously injuring Davis s finger. Ard was indicted for assault with a deadly weapon. The issue at trial was whether Ard s shooting of Davis was an accident, or an intentional or knowing act.

The State called three witnesses at trial: Davis and two police officers. Davis said Ard put the gun to Davis s head and cocked it; but Davis was able to avoid being shot by thr[owing] [his] right hand up to grab the gun away from [Ard] and that s when it went off, // shooting Davis in the finger. Ard fired again as Davis went down the hall, and that bullet grazed his arm. For the defense, Ard called his mother to testify that Davis told her the incident was an accident, and a medical-records custodian to testify about Davis s hospital records; he also recalled Davis and one of the officers. Finally, he introduced a tape-recording, which was played to the jury, of an interrogation of him by a police officer after the shooting. On the tape, Ard said repeatedly he did not remember what happened, including shooting Davis: It s just black, I can t remember. The jury convicted Ard and, after finding that he had two prior felony convictions, assessed punishment at forty years in prison.

On appeal Ard asserts: (1) ineffective assistance of counsel; (2) an improperly admitted tape-recording of the interrogation of him by the officer; and (3) factually insufficient evidence.

We will affirm the judgment.

Ineffective Assistance of Counsel

Ard points out the following alleged erroneous acts by his trial counsel, which are confirmed by the record:"During voir dire, Counsel strongly suggested to the jury, by repeated inquiries about their attitudes toward punishing a hypothetical defendant who has previous convictions, that Ard had two previous felony convictions. (Reporter s Record: V. 2, pp. 114, 117, 126-35, 141-42, 146-47, 149, 153-54, 167, 172)

" During his opening statement, counsel told the jury that Ard had two previous felony convictions, one in 1985 and one in 1988. (Reporter s Record: V. 3, p. 17)

" During the guilt innocence phase, the State attempted to introduce the tape-recording of the interrogation of Ard by the officer. Defense counsel successfully objected that a proper predicate had not been laid. Later, defense counsel introduced the tape-recording which was played to the jury. In the tape, Ard admitted that he had served two years in prison for assault with a weapon, the same kind of trouble as in this case. //

Texas courts follow the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was so inadequate as to be in violation of the Sixth Amendment right to effective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986), which adopted the standard in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984)). Appellant must show: (1) counsel's assistance fell below an objective standard of reasonableness, and (2) counsel's deficient assistance, if any, prejudiced the defendant. Thompson, 9 S.W.3d at 812 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). This two-pronged test is the benchmark for judging whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result. Thompson, 9 S.W.3d at 812-13 (citing McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2064)). There is a strong presumption that counsel s performance fell within the wide range of reasonable professional assistance. Id. at 813 (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). Appellant must prove ineffective assistance by a preponderance of the evidence. Id. (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).

The State s case rests primarily on the credibility of Davis s eyewitness testimony. To convict Ard, the jury had to believe Davis s testimony and conclude that Ard intentionally or knowingly shot him. But Davis, an unemployed veteran on disability who was in a lot of pain most of the time, admitted to being depressed at the time of the incident because of personal problems, having two convictions for driving while intoxicated, for one of which he was currently on probation, having two prior misdemeanor convictions for theft, having been involved with drugs in the past, and being intoxicated at the time of the incident. He also testified that initially he thought the shooting was an accident and he told the treating physician so, but after having nightmares about it, he came to believe it was intentional. // For all these reasons, his testimony was controvertible.

Because the credibility of the State s one incriminating witness was impeachable, for the jury to learn that Ard had prior felony convictions, especially when one was for an aggravated assault, had the potential to be highly damaging. And for Ard s counsel to be the source of the information would appear to fall below an objective standard of reasonableness. Sometimes, however, conduct that appears to be below average is based on trial strategy. There is a presumption that the challenged act by defense counsel is trial strategy. Pena-Mota v. State, 986 S.W.2d 341, 346 (Tex. App. Waco 1999, no pet.) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)). Because we cannot determine from this record why defense counsel acted as he did, we must presume he was following a strategy he thought reasonable under the facts. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Consequently, we find that defense counsel s acts did not fall below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812.

We overrule this issue.

Tape-Recording

Ard introduced a tape-recording, played to the jury, of an interrogation of him by a police officer after the shooting. On the tape, Ard said repeatedly he did not remember what happened, including shooting Davis. But he also admitted that he had served two years in prison for assault with a weapon, the same kind of trouble as in this case. On appeal, Ard argues that the tape was more prejudicial than probative and should not have been admitted.

The problem with Ard s argument is transparent. It was he who introduced the tape into evidence, and he did not request that it be redacted or that a limiting instruction be given. Our criminal law recognizes a rule of estoppel called the doctrine of invited error which generally prohibits a party from complaining on appeal of an action he requested. Prystash v. State, 3 S.W.3d 522, 531-32 (Tex. Crim. App. 1999) (overruling Powell v. State, 897 S.W.2d 307, 315 (Tex. Crim. App. 1994) (defense procured the absence of a special issue in the charge)). Said another way, error cannot be predicated on an act the complaining party affirmatively sought. Id. The doctrine applies in many contexts. E.g., id. (citing Carbough v. State, 49 Tex. Crim. 452, 455-56, 93 S.W. 738 (1906) (jury charge: a party may not take advantage of his own wrong )); Mann v. State, 850 S.W.2d 740, 741-42 (Tex. App. Houston [14th Dist.] 1993, pet. ref d) (defendant may not later attack defect in stipulation of evidence after representing that the court could rely on it); Ex parte Hargett, 827 S.W.2d 606, 607 (Tex. App. Austin 1992, pet. ref d) (defendant seeking habeas relief may not complain of lack of evidentiary hearing when defendant requested that the merits be determined solely on basis of trial transcript).

We overrule this issue.

Factual Sufficiency of the Evidence

The standard of review for a factual sufficiency claim, which is derived from Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), is set forth in Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). The reviewing court asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof to the extent that the [finding of guilt] is clearly wrong and manifestly unjust. Johnson, 23 S.W.3d at 11. The court does not view the evidence through the prism of in the light most favorable to the prosecution. Id. at 7 (quoting Clewis, 922 S.W.2d at 129). The trier of fact is the sole judge of the weight and credibility of the testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). A bedrock principle of a factual sufficiency analysis is deference to the findings of the jury or other fact finder. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Thus, we should be on guard not to substitute our own judgment in these matters for that of the trier of fact. See Santellan, 939 S.W.2d at 164. "A decision is not manifestly unjust merely because the jury [or fact finder] resolved conflicting views of the evidence in favor of the State." Cain, 958 S.W.2d at 410.

Ard s argument is that there were some inconsistencies in Davis s testimony at trial. However, faced with Davis s testimony, including the inconsistencies, and Ard s testimony, the jury the sole judge of the weight and credibility of the testimony made a credibility determination, and believed Davis. Santellan, 939 S.W.2d at 164. Also, the unrefuted physical evidence is that Davis was shot twice with a .357 magnum, Ard owned a .357 magnum which was found a few feet from him and which had two spent rounds, and there was no one else present during the shooting. Based on the evidence, we do not find that the verdict is clearly wrong and manifestly unjust. Johnson, 23 S.W.3d at 11.

We overrule this issue.

Conclusion

Having overruled Ard s issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed October 30, 2002

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