Margie Clark Percival v. The State of Texas--Appeal from 273rd District Court of Sabine County

NO. 12-03-00333-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARGIE CLARK PERCIVAL, APPEAL FROM THE 273RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS, SABINE COUNTY, TEXAS

APPELLEE

MEMORANDUM OPINION

Appellant Margie Clark Percival pleaded guilty to aggravated assault with a deadly weapon. A jury sentenced her to imprisonment for twenty years and assessed a $10,000 fine. In three issues, Appellant asserts that the trial court abused its discretion in permitting testimony by two witnesses who Appellant contends violated the Rule and also urges that she was denied effective assistance of counsel. We affirm.

Background

Appellant was charged by indictment with the attempted murder of Michael Nethery. On September 9, 2003, she pleaded guilty to the lesser included offense of aggravated assault without an agreed punishment recommendation from the State. A hearing was held on punishment.

At the punishment hearing, 51-year-old Nethery testified that he and Appellant had dated and lived together for approximately eighteen months, but had broken off their relationship. Approximately three weeks after the breakup, on November 17, 2002, Nethery was at his trailer vacuuming, when he turned around to see that Appellant had come in the back door of the trailer. He got them soft drinks and then sat down in the living room with Appellant. After they talked a few minutes, Appellant accused him of going out with other women. When Nethery denied it, Appellant jumped up from her chair and pulled a pistol, saying that he was going to be a dead man. She said that she had ten shells and all of them were for [Nethery]. Nethery turned in the swivel chair he was sitting in and ran for the bathroom.

Appellant followed him and shot him in the back as he entered the bedroom. She then shot him a second time in the back as he entered the bathroom. Nethery fell between the toilet and the outer wall of the bathroom, and Appellant shot him a third time. She left the room, but returned a few seconds later and shot him a fourth time in the back. She walked away a second time, but returned to shoot him again. This time, the bullet hit the back of his left arm and traveled through his arm, striking one of his fingers. Appellant told Nethery that Ginger // was going to be next and then left the bathroom.

Nethery managed to get up from the floor. Appellant heard him moving and ran back toward the bathroom. Nethery slammed the bathroom door in her face and locked it. He grabbed a .357 pistol he kept in the bathroom closet and fired it through the back of the closet. He shot again through the wall near the door, aiming toward the living room. Then, Nethery pushed the screen from the bathroom window and fired shots into the air, hoping to get a neighbor s attention.

After firing the shots, Nethery opened the door and saw that Appellant was gone. His phone was missing from its usual place and a recliner had been placed against the front door. After moving the chair, he got outside and fell to the ground. He crawled to the main road where someone stopped to help him.

Pineland Police Chief Jamie Brashear testified that he responded to the call for help. Upon arriving at Nethery s home, he saw Nethery lying at the end of the driveway. Nethery told Brashear that Appellant had shot him and that she might be on her way to Ginger White s house to shoot her. Brashear found Nethery s .357 revolver on the driveway. He examined the house and made photos of bullet holes in the house. Brashear also found the charger cord for the telephone outside on the ground near the back door, but did not find a phone. He did not find any shell casings in the house to match the bullets and bullet holes.

Texas Ranger Danny Young interviewed Appellant, who admitted shooting Nethery. However, she claimed that Nethery pulled his weapon first. Appellant said that Nethery threatened to kill her and her sons and that Nethery fired two shots and ran toward the bedroom. She also said she fired two or three shots and followed him to the bedroom door. She told Young that she shot Nethery one more time when he went into the closet where she knew he kept guns. Young testified that the physical evidence at the scene supported Nethery s account and not Appellant s.

Appellant testified on her own behalf. She stated that she had no felony convictions, she had family in the area, and she was sixty-nine years old. Although she claimed that she had not committed any violent acts in the past, she testified that a man whom she had dated previously, Ottis Melton, had twisted her arm and torn her rotator cuff. Appellant said that Melton is the reason she illegally carried a gun with her. She said he was trying to kill her and was in the courtroom today.

Appellant claimed to have a fuzzy memory about the shooting. She denied having amnesia, but contended she was in a state of shock and could not recall exactly what had happened. Appellant had no explanation for the discrepancies between her account and the physical evidence. She admitted she did not call for help and that she told her niece she might have killed him.

Various character witnesses testified that Appellant s reputation for truth, veracity, and peacefulness was good. Among those witnesses was her granddaughter, Marissa Taylor. Taylor testified that she had talked to Nethery four times since the offense. She claimed that Nethery told her he had gotten what he deserved and wished to drop the prosecution of Appellant. To rebut that claim, the State recalled Nethery to the stand. Defense counsel objected because Nethery, who was subject to the Rule, had been in the courtroom during the defense s case. The trial court allowed Nethery to testify, but limited his testimony to rebuttal of Taylor s unforeseen testimony. Nethery denied having the conversation described by Taylor.

The State then called Ottis Melton as a rebuttal witness. Melton testified that Appellant s reputation for truth, veracity, and peacefulness was bad. He claimed that Appellant once told him that she slept with a gun in her bed to shoot him. Melton denied twisting Appellant s arm and tearing her rotator cuff. After Melton s testimony, both parties closed. Appellant then objected to Melton s testimony because he had been in the courtroom during the testimony of the other witnesses. The trial court found that Melton was not sworn with the State s witnesses and did not violate the Rule. The court further found that Melton was allowed to testify strictly for rebuttal. Further, the court advised Appellant that he would allow her the same opportunity as the State, to reopen to produce any evidence available to rebut any unforeseen State s evidence.

On September 10, 2003, the jury assessed Appellant s punishment at imprisonment for twenty years and a $10,000 fine. This appeal followed.

The Rule

In her first issue, Appellant asserts that the trial court abused its discretion by not excluding the rebuttal testimony of Nethery and Melton given in violation of Texas Rule of Evidence 614. Applicable Law

Texas Rule of Evidence 614 (the Rule ) provides in relevant part that [a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses . . . . Tex. R. Evid. 614. The purpose of the Rule is to prevent the testimony of one witness from influencing the testimony of another. Martinez v. State, 867 S.W.2d 30, 40 (Tex. Crim. App. 1993). The trial court must invoke the Rule if requested to do so. Tex. R. Evid. 614. When the Rule is invoked, a witness should not hear testimony in the case or talk to any other person about the case without the court s permission. White v. State, 958 S.W.2d 460, 462 (Tex. App. Waco 1997, no pet.). After the Rule has been invoked, enforcement of the Rule is within the court s discretion. Guerra v. State, 771 S.W.2d 453, 474 (Tex. Crim. App. 1988). A violation of the Rule may not be relied upon for reversal of the case unless it is shown that the trial court abused its discretion in allowing the violative testimony. Id.

Violations of the Rule fall into two main categories: (1) witnesses who have been sworn or listed as witnesses in the case and either hear testimony or discuss another s testimony and (2) persons who were not intended to be witnesses and are not connected with the case-in-chief, but who have, due to events during trial, become necessary witnesses. See id. at 475-76. We perform a two-step analysis in determining whether a trial court has abused its discretion in allowing a violation of the Rule. First, we ascertain what kind of witness was involved. Id. at 476. If the witness was one who had no connection with either the State s case-in-chief or the defendant s case-in-chief and who, because of a lack of personal knowledge regarding the offense, was not likely to be called as a witness, no abuse of discretion can be shown. Id.

Under the second step of the analysis, we must determine (1) whether the witness actually conferred with or heard the testimony of another witness without court permission and (2) whether the witness s testimony contradict[ed] the testimony of a witness he actually heard from the opposing side or corroborate[d] the testimony of another witness he actually heard from the same side on an issue of fact bearing upon the issue of guilt or innocence. Loven v. State, 831 S.W.2d 387, 399 (Tex. App. Amarillo 1992, no pet.). If both of the above criteria are met, the trial court abused its discretion. Id.

Michael Nethery

The record reflects that Nethery was a State s witness who had testified earlier in the case. After Appellant rested her case at punishment, the State recalled Nethery to the stand to rebut the testimony of a defense witness, Marissa Taylor. Appellant objected because Nethery had been in the courtroom during the defense s case. In response to the trial court s questioning, the State responded that it was surprised by Taylor s testimony regarding a conversation she claimed to have had with Nethery. Based on the State s surprise, the court allowed Nethery to testify, but limited such testimony to rebutting Taylor s testimony.

Nethery testified that he did not have the conversation Taylor described and, more specifically, that he did not tell Taylor that he deserved what Appellant did to him. Nethery s testimony comprises half of one page of the record and was limited to rebutting the surprise testimony of Taylor. Further, Nethery s rebuttal testimony did not bear on Appellant s guilt or innocence. See Marx v. State, 953 S.W.2d 321, 338-39 (Tex. App. Austin 1997, aff d, 987 S.W.2d 577 (Tex. Crim. App. 1999) (trial court did not abuse its discretion in allowing witness who had violated the rule to testify when such testimony was solely limited to rebuttal and did not bear on the defendant s guilt or innocence). Moreover, whether Nethery heard Taylor s testimony is irrelevant since he could not have offered rebuttal testimony without having been told the substance of Taylor s testimony.

There is no evidence that Taylor s testimony influenced Nethery s denial of the conversation she attributed to him. See Bell v. State, 938 S.W.2d 35, 50-51 (Tex. Crim. App. 1996). Thus, we conclude that the trial court did not abuse its discretion in allowing Nethery s rebuttal testimony. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh g) (a trial court does not abuse its discretion unless its ruling is outside the zone of reasonable disagreement).

Ottis Melton

Appellant also complains that the trial court abused its discretion when it allowed Melton to testify. We first noted that it is not apparent from the record that Melton had been sworn or placed under the Rule. Melton was called to testify as a rebuttal witness by the State regarding a matter that did not concern the case-in-chief. Although Melton had been in the courtroom during testimony from other witnesses, Appellant did not object when the State called him to testify. In fact, Appellant did not object until after close of the evidence. Because Appellant did not timely object to the trial court s allowing Melton to testify, she failed to preserve the issue for review. See Tex. R. App. P. 33.1(a); Weyandt v. State, 35 S.W.3d 144, 154 (Tex. App. Houston [14th Dist.] 2000, no pet.). Moreover, even if the issue had been preserved, Appellant has not shown any abuse of discretion. Melton had no connection with either party s case-in-chief. He had no personal knowledge of the offense and was not likely to be called as a witness. His rebuttal testimony became necessary due to events during trial. Therefore, no abuse of discretion can be shown. See Guerra, 771 S.W.2d at 476. We overrule Appellant s first issue.

Ineffective Assistance of Counsel

In her second and third issues, Appellant argues that her trial counsel s representation constituted ineffective assistance of counsel. Because these issues are related, we address them together.

Applicable Law

In addressing a claim of ineffective assistance of counsel, we follow the two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Under the first prong of the Strickland test, an appellant must show that counsel s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must show that counsel s representation fell below an objective standard of reasonableness. Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.

Under the second prong, an appellant must show that the deficient performance prejudiced her defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. The appropriate standard for judging prejudice requires an appellant to show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Review of a trial counsel s representation is highly deferential. Tong, 25 S.W.3d at 712. We indulge in a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Appellant bears the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Appellant must prove both prongs of the Strickland test by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at 712.

Guilty Plea

Appellant contends that her trial counsel was ineffective when he allowed her to plead guilty to aggravated assault, a lesser included offense of attempted murder. Specifically, Appellant argues that because the range of punishment for attempted murder was the same as the range of punishment for aggravated assault, her trial counsel was ineffective.

To demonstrate ineffective assistance of counsel in the context of a guilty plea, Appellant must show that counsel s advice was outside the range of competence demanded of attorneys in criminal cases and, if not, that there is a reasonable probability that, but for counsel s errors, she would not have pleaded guilty and would have insisted on going to trial. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). There is nothing in the record revealing what advice, if any, counsel gave Appellant that influenced her decision to plead guilty. Therefore, Appellant has not overcome the presumption that her counsel s conduct was within the range of reasonable professional assistance. This argument is without merit.

Competency Motion

Appellant also complains that her trial counsel withdrew her motion for a competency hearing. The record reveals that counsel filed a motion to determine Appellant s competency because Appellant was hospitalized and taking a battery of medications. After the motion was filed, Dr. Edward Gripon, a forensic psychologist, examined Appellant. Dr. Gripon advised defense counsel that there was no basis to go forward on the competency motion because he would find Appellant competent to stand trial. Appellant s counsel then withdrew the motion.

Appellant complains that her counsel s decision to withdraw the motion was ineffective assistance of counsel. However, it is well settled that counsel is not obligated to present frivolous motions or objections. Wood v. State, 4 S.W.3d 85, 91 (Tex. App. Fort Worth 1999, pet. ref d). This argument is also without merit.

Medical and Psychological History

Appellant next asserts that her trial counsel failed to provide the jury with evidence of her lengthy and significant medical and psychological history. The record is silent as to counsel s trial strategy. We have no evidence concerning whether trial counsel considered admitting Appellant s medical and psychological history and, if so, the reasons he decided not to. Thus, we are unable to determine that the failure to raise those issues in the trial court constitutes ineffective assistance of counsel. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has failed to show that her counsel s performance fell below the objective standard of reasonableness. Further, even if we agreed that trial counsel s performance was deficient, Appellant has failed to make any showing that she was prejudiced as a result. She has failed to show that there is a reasonable probability that the result of the proceeding would have been different but for the alleged error made by counsel. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Thus, Appellant has failed to demonstrate that counsel was ineffective for failing to introduce her medical and psychological history. Jackson, 877 S.W.2d at 771.

Photographs of Nethery s Injuries

Appellant asserts that counsel should have objected to State s Exhibits 27, 28, and 29, photographs of Nethery s injuries. The record is silent as to the reasons underlying Appellant s trial counsel s decision not to object to the photographs. As required by Jackson, we must presume counsel s actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why her trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance). Here, the record does not contain evidence concerning trial counsel s reasons for choosing the course he did. Thus, Appellant cannot overcome the strong presumption that her counsel performed effectively. Consequently, Appellant has failed to show that counsel was ineffective for failing to object to the photographs.

Post-Trial Representation

Finally, Appellant asserts that she was denied effective assistance of counsel because she did not have representation during the thirty days following her trial. She contends that in the intervening time between the final judgment and the order appointing appellate counsel, there was no activity on her behalf; specifically, no motion for new trial was filed.

A defendant has a right to file a motion for new trial. See Tex. R. App. P. 21.4. Filing a motion for new trial is a prerequisite to presenting errors on appeal only when necessary to adduce facts not in the record. See Tex. R. App. P. 21.2. The filing of a motion for new trial extends the appellate time limits in which to give notice of appeal from thirty days to ninety days after sentencing, see Tex. R. App. P 26.2(a)(2), and it is often used exclusively for this purpose. SeeOldham v. State, 977 S.W.2d 354, 361 (Tex. Crim. App. 1998). Substantively, motions for new trial have been used primarily for claims of newly discovered evidence or jury misconduct. See id.

Appellant did not file a motion for new trial. In her appellate brief, Appellant references two issues in a footnote that she contends she might have set forth, and benefitted from, in a motion for new trial. However, she failed to show that had she filed a motion for new trial, she would have been entitled to a new trial. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). Appellant has not claimed that her appeal or other rights were injured due to her failure to file a motion for new trial. She simply claims instead that she was without effective counsel during the time limit for filing the motion for new trial.

The State pointed out that since there is no evidence in the record that her trial attorney was released, Appellant was still represented by counsel. A similar situation occurred in Oldham. See Oldham, 977 S.W.2d at 361. After being convicted and sentenced, Oldham filed a pro se notice of appeal and affidavit of indigency. There was no activity on Oldham s case between Oldham s pro se filing and the court s appointment of appellate counsel thirty-three days later. The appellate court determined that Oldham had been denied effective assistance of counsel during the time for filing a motion for new trial. The court of criminal appeals reversed the appellate court, holding that the facts presented [did] not rebut the presumption that the appellant was represented by counsel and that counsel acted effectively. Id. at 363.

Likewise, in the instant case, the record does not show any activity between the time Appellant filed her pro se notice of appeal and indigency affidavit and the time the trial court appointed appellate counsel. However, this does not rebut the presumption that Appellant was represented by counsel and that counsel acted effectively. Id. Also, as in Oldham, there is nothing in the record to suggest that Appellant was not counseled by her attorney regarding the merits of a motion for new trial and that she rejected any suggestion that she file the motion. Id. When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected. Id. Moreover, the fact that Appellant filed a pro se notice of appeal is evidence that she was informed of at least some of her appellate rights. Id. Therefore, absent a showing in the record to the contrary, we presume that Appellant was adequately counseled regarding her right to file a motion for new trial. See Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000). Accordingly, we hold that Appellant has failed to overcome the presumption that she was adequately represented by counsel during the time for filing a motion for new trial.

Compliance with Strickland

Appellant failed to satisfy the first prong of the Strickland test by showing that her trial counsel s performance was deficient. Therefore, we need not address the second prong. We overrule Appellant s second and third issues.

Disposition

Having overruled each of Appellant s issues, we affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 8, 2005.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)