ELIZABETH ROBERTSON LEE v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

NUMBER 13-05-739-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ELIZABETH ROBERTSON LEE, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Ya ez

A jury found appellant, Elizabeth Robertson Lee, guilty of murder and sentenced her to sixteen years' imprisonment. (1) In three issues, appellant contends (1) the evidence is factually insufficient to support her conviction; (2) the trial court erred in failing to timely appoint appellate counsel; and (3) she received ineffective assistance of counsel. We affirm.

I. Background

It is undisputed that appellant fatally shot her live-in boyfriend, Dennis Mark Evans, around 11:30 p.m. on the evening of May 9, 2004. Appellant contends, however, that she was only trying to "scare" Evans and did not intend to kill him.

II. Factual Sufficiency
A. Standard of Review and Applicable Law

We measure the factual sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge. (2) In determining the factual sufficiency of the elements of the offense, we view all the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. (3) We set aside a finding of guilt only if the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or when the great weight and preponderance of the evidence is contrary to the verdict. (4) A proper factual sufficiency review must consider the most important evidence that the appellant claims undermines the jury's verdict. (5)

The jury, as the trier of fact, is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony. (6) The jury is free to believe one version of the facts and reject another. (7) It is also entitled to accept or reject all or any portion of a witness's testimony. (8) We are authorized to disagree with the fact finder's determination only when the record clearly indicates our intervention is necessary to stop the occurrence of a manifest injustice. (9)

In order to prove that appellant committed the offense of murder under section 19.02(b)(1) of the Texas Penal Code, the State had to prove that appellant intentionally or knowingly caused the death of Dennis Mark Evans. (10) A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. (11) A person acts knowingly when he is aware that his conduct is reasonably certain to cause the result. (12)

Intent is a question of fact that is within the sole purview of the jury; the jury may rely on its collective common sense and apply common knowledge and experience. (13) Intent may be inferred from the circumstantial evidence surrounding the incident including the acts, words, and conduct of the accused. (14) Moreover, the jury may infer the intent to kill from the use of a deadly weapon unless it would be unreasonable to infer that death or serious bodily injury could result from the use of the weapon. (15) The Texas Penal Code defines a firearm as a deadly weapon. (16)

B. Analysis

Appellant contends the evidence is factually insufficient to prove that she intentionally caused Evans's death. In support, appellant cites the following: (1) three of the four gunshot wounds Evans suffered were to his buttocks area (one wound was to his lower to mid-back area); (2) she testified that she did not intend to kill Evans; and (3) she called 911 after she shot Evans.

Appellant testified that the night of the shooting, she and Evans had been drinking at a bar. Evans was so intoxicated that he fell asleep in the truck on the way home. Appellant went to sleep and was awakened by Evans beating on the door. According to appellant, Evans was "ranting and raving, " threatening to "show [her] who was boss," and threatening to "fuck [her] in the ass." Appellant testified Evans picked her up by the throat, threw her against the dresser, and was choking her. She got her gun from a bedside drawer to "scare" Evans. She testified Evans was sitting on the side of the bed when she shot him and she thought he was going to get up and come after her. (17) After she fired the shots, he did come after her, and she ran out of the house. After appellant realized she had shot Evans, she called 911.

David Dolinak, a forensic pathologist, performed an autopsy on Evans. He testified that Evans died from "multiple gun shot wounds;" the wounds were consistent with Evans lying on a bed, but were also consistent with "crouching" in a "defensive posture" to try to avoid being shot.

Appellant also contends that "the most compelling and persuasive argument involving [her] lack of intent and knowing behavior" came from Evans himself. The State called Curt Beldin, Evans's supervisor, who testified that on one occasion, he heard appellant threaten Evans that she would "kill [him] dead in [his] tracks." When Beldin asked Evans if appellant was serious, Evans replied that appellant "threatens [him] with that all the time."

We again note that the jury was free to accept or reject all or any portion of a witness's testimony. (18) We may not substitute our own determination for that of the jury. (19)Based on the record evidence, we conclude the jury could have inferred the requisite intent essential to the commission of the offense of murder on the part of appellant from her acts, words, and conduct. (20) Viewing the evidence under the proper standard, we conclude it is factually sufficient to support appellant's conviction for murder. (21) We overrule appellant's first issue.

III. Appointment of Appellate Counsel

In her second issue, appellant contends the trial court erred by failing to timely appoint appellate counsel. Specifically, appellant contends she was sentenced on November 18, 2005 and the trial court did not appoint appellate counsel until January 6, 2006. According to appellant, by failing to timely appoint appellate counsel, "the trial court effectively eliminated" her ability to urge a motion for new trial. We disagree.

The record reflects that: (1) appellant was sentenced on November 18, 2005; (2) trial counsel filed appellant's notice of appeal on November 21, 2005; (3) trial counsel filed a motion to withdraw on December 2, 2005, but the motion was not granted until January 2, 2006; and (5) appellate counsel was appointed on January 6, 2006. Thus, appellant was represented by counsel during the period in which she could have filed a motion for new trial. Appellant failed to establish she was without counsel during the period in which she could have filed a motion for new trial. (22) We overrule appellant's second issue.

IV. Ineffective Assistance

In her third issue, appellant contends she received ineffective assistance of counsel. Specifically, appellant complains her counsel was ineffective by (1) failing to follow up on certain responses by a juror during voir dire, even though the juror stated he could be fair and impartial; (2) giving only a brief opening statement; (3) commenting that certain parties were not witnesses "for this part [of the trial]," which implied there would be a punishment phase; (3) failing to call a witness who had performed a psychological evaluation on appellant; and (4) failing to file a motion for new trial.

A. Standard of Review and Applicable Law

Strickland v. Washington, (23) sets forth the standard of review for effectiveness of counsel. (24) Strickland requires a two-part inquiry. (25) The defendant must first show that counsel's performance was deficient, in that it fell below an objective standard of reasonableness. (26) Second, the defendant must further prove there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. (27) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (28)

The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. (29) An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating counsel's effectiveness. (30)

The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. (31) There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. (32) To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." (33) Generally, the record on direct appeal will be insufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard. (34)

B. Analysis

Here, appellant did not file a motion for new trial raising ineffective assistance that would have allowed counsel to explain any trial strategy upon which his decisions may have been based. Because there is no record to show trial counsel's reasons for acting or failing to act in the manner challenged, appellant has failed to establish that her counsel's assistance was ineffective. (35)

Moreover, appellant asserts, without argument, explanation, or citation to authority, that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Appellant has failed to explain why the purported failures by trial counsel would have caused a different result. We conclude that appellant has not established the second prong of Strickland because she has failed to show in reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (36) We overrule appellant's third issue.

V. Conclusion

We affirm the trial court's judgment.

 

LINDA REYNA YA EZ,

Justice

 

Do not publish. Tex. R. App. P. 47.2(b).

 

Memorandum opinion delivered and filed

this the 30th day of August, 2007.

1. See Tex. Penal Code Ann. 19.02(b)(1) (Vernon 2003).

2. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd).

3. See Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006).

4. Id. at 415.

5. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

6. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

7. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).

8. Id.; Ozuna, 199 S.W.3d at 605.

9. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).

10. Tex. Penal Code Ann. 19.02(b)(1) (Vernon 2003).

11. Id. 6.03(a).

12. Id. 6.03(b).

13. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003).

14. Guevara v. State, 152 S.W.3d 45, 50 ( Tex. Crim. App. 2004).

15. Mosley v. State, 983 S.W.2d 249, 254-55 (Tex. Crim. App. 1998) (citing Ross v. State, 861 S.W.2d 870, 873 (Tex. Crim. App. 1992)).

16. See Tex. Penal Code Ann. 1.07(a)(17)(A) (Vernon Supp. 2006).

17. Appellant's version of events changed several times. Initially, when the police arrived, she told them "someone" had shot Evans, but she did not know who. She later admitted that she had shot Evans, but said he had tried to strangle her and was "coming back at her" when she shot him. An investigating officer took photographs of appellant to document her injuries, but found no marks indicating she had been choked. At trial, appellant testified Evans was "sitting on the side of the bed" when she shot him, and she thought he was going to get up and come after her. Officer Leo Martinez testified that he visited with appellant in jail after he had reviewed the autopsy report on Evans. Martinez told appellant that the autopsy results (the projectile path of the bullets) were inconsistent with appellant's written statement, in which she claimed Evans was "getting up to come at [her] again." Upon being confronted with the autopsy results, appellant confirmed that Evans was "laying down" when she shot him.

18. Penagraph, 623 S.W.2d at 343; Ozuna, 199 S.W.3d at 605.

19. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex. Crim. App. 2002).

20. See Tex. Penal Code Ann. 19.02(b)(1) (Vernon 2003); Guevara, 152 S.W.3d at 50,

21. See Watson, 204 S.W.3d at 414-17.

22. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998) (noting that appellant's filing of pro se notice supports presumption she was adequately counseled unless record affirmatively displays otherwise).

23. Strickland v. Washington, 466 U.S. 668, 687 (1984).

24. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

25. Id.

26. Id.

27. Id.

28. Id.

29. Id.

30. Id.

31. Id. at 813.

32. Id.

33. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

34. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

35. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

36. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.