Wesley Allan Dotson v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12-06-00123-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WESLEY ALLAN DOTSON, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Wesley Allan Dotson appeals his conviction for aggravated assault. In two issues, he argues that the evidence is factually insufficient to sustain his conviction and that he received ineffective assistance of counsel. We affirm.

Background

Appellant was in a relationship with Brenda Carr. The two got into a quarrel over unanswered phone calls, and Appellant assaulted her, cutting her in the face with a knife, biting her on the nose, throwing her down some stairs, and attaching a metal key ring clip to her lips. Carr was injured and began to bleed profusely, mostly from her nose. Appellant told her to get into the shower to wash off the blood and then put her in bed and gave her a pill to relax her. She fell asleep, and he left.

Carr s ex husband arrived sometime the next morning and saw her injuries. He also noticed blood in various locations in the house including on the carpet, the walls of one room, and the wall near the stairs. He called the police, and Appellant was arrested.

A Smith County grand jury indicted Appellant for the felony offense of aggravated assault. Appellant pleaded not guilty, and a jury trial was held. The jury found Appellant guilty and assessed punishment at ninety-nine years of imprisonment. This appeal followed.

Sufficiency of the Evidence

In his first issue, Appellant argues that the evidence was factually insufficient to support the conviction. Specifically, Appellant argues that there was insufficient evidence that he used a deadly weapon in the commission of the assault.

Standards of Review

The Texas Constitution requires that a conviction be supported by factually sufficient evidence. Clewis v. State, 922 S.W.2d 126, 129 30 (Tex. Crim. App. 1996). To determine if the evidence is factually sufficient, we review the evidence in a neutral light, and we determine whether the evidence supporting the verdict is so obviously weak as to undermine our confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury s verdict.). Our factual sufficiency review begins with the assumption that the evidence is legally sufficient under the Jackson v. Virginia1 standard. See Clewis, 922 S.W.2d at 134.

Our role is that of appellate review. We must defer to the jury s determinations of credibility and the weight to be given to evidence and are authorized to substitute our judgment on these questions only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Wesbrook v. State, 29 S.W.3d 103, 111 12 (Tex. Crim. App. 2000).

Analysis

To prove that Appellant had committed aggravated assault, the State was required to prove that he intentionally, knowingly, or recklessly caused bodily injury to Brenda Carr and that he used or exhibited a deadly weapon in the commission of the assault. Tex. Penal Code Ann. 22.02(a)(2) (Vernon 2006). It is the allegation that Appellant used or exhibited a deadly weapon that elevated the offense as alleged from assault to aggravated assault. Appellant does not contend that he did not assault and cause injury to Brenda Carr or that he did not have a knife. Instead, Appellant argues that there was not sufficient evidence that the knife was a deadly weapon.

Not every knife is a deadly weapon. See Tex. Penal Code Ann. 1.07(a)(A) (Vernon 2006); Thomas v. State, 821 S.W.2d 616, 619 20 (Tex. Crim. App. 1991). As relevant to this inquiry, a knife is a deadly weapon if, in the manner of its use or intended use, it is capable of causing death or serious bodily injury. Tex. Penal Code Ann. 1.07(a)(17)(B). In making this factual determination, the jury may consider all the surrounding facts, including the size and shape of the knife, the manner of its use or intended use, the capacity of the knife to produce death or serious bodily injury, the proximity of the parties, the defendant s threats, and whether the victim feared death or serious bodily injury. See Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986); see also Thomas, 821 S.W.2d at 619 20.

The knife used in this case was not recovered. Carr testified that she never saw the handle of the knife, only the blade. And she never offered a description of the knife in terms of how large or what shape it was. There is no countervailing evidence about the knife, so the question is whether the proof that it is a deadly weapon is so weak that the verdict is clearly wrong and manifestly unjust. See Watson, 204 S.W.3d at 414 15.

Although a close question, there is sufficient evidence to show that the knife was a deadly weapon. Carr testified that she knew Appellant to carry pocket knives and that she recognized this knife as one of his pocket knives. Furthermore, she testified that Appellant pushed her up against a wall and held the knife to her face. As he did so, he cut her cheek with the knife. A photograph of the cut was shown to the jury. Carr testified that she was afraid that she was going to die when Appellant was pushing her up against the wall and cutting her face with the knife, and that a knife is something that can kill a person. It is true that Carr testified that a knife could kill a person and never specifically said the knife Appellant used could do so. But the question came in the context of a series of questions about the knife and the assault, and it was reasonable for the jury to conclude that she was talking about the knife in question.

The Texas Court of Criminal Appeals has held that an object can be a deadly weapon if it is used to threaten deadly force. See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). The actor need not intend to use deadly force; the object must merely be capable of being deadly. Id. Appellant s use of the knife against Carr, cutting into her face while pinning her to a wall, was a threat of deadly force. Her testimony describing the event and her description of the knife as a pocket knife that could kill a person are sufficient to support the verdict. We overrule Appellant s first issue.

Ineffective Assistance of Counsel

In his second issue, Appellant argues that he received ineffective assistance of counsel. Specifically, he argues that counsel s failure to file pretrial motions denied him his right to counsel.

Applicable Law

Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel s representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland,466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). In our review, we review the representation in its totality and not for isolated or incidental deviations from professional norms. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

The second step requires the appellant to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 770 71 (Tex. Crim. App. 1999). To establish prejudice, an appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel s deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

We begin with the strong presumption that counsel s conduct falls with the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). As part of this presumption, we presume counsel s actions and decisions were reasonable and were motivated by sound trial strategy. See id. Appellant has the burden of proving ineffective assistance of counsel. See id.

Analysis

Appellant s trial counsel did not file pretrial motions for discovery. Appellant argues that his defense was compromised because counsel s failure to file those motions allowed the State to call an expert witness who was not disclosed prior to trial and to introduce evidence of Appellant s previous assaults on the victim, also not disclosed prior to trial.2

While there was no hearing after trial on this question, Appellant s counsel told the trial court during trial that he had not filed motions because he was able to get discovery simply by calling the District Attorney s office. Even if this is deficient performance, and the presumption is to the contrary, see Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, Appellant has not shown that he suffered any prejudice. See Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993) (Failure to obtain a ruling on pretrial motions not shown to change the outcome.).

The State argued to the trial court that the expert witness and the extraneous assault evidence should be allowed because they were necessary to rebut inferences created by the cross examination of the complaining witness. Specifically, Appellant s counsel elicited from the complaining witness that she had socialized with Appellant and spent the night with him on several occasions after the assault. The State offered the expert witness to explain why an assault victim might behave that way and elicited information about the previous assaults to show that she had previously gone back to Appellant after an assault.

Appellant does not argue or demonstrate that the trial court s allowing this evidence as rebuttal evidence was erroneous or that pretrial disclosure was a prerequisite to admission. Without this showing, we cannot conclude that Appellant suffered prejudice as a result of the decisions made by counsel. Evidence of extraneous offenses can be admissible to rebut defensive theories raised during cross examination of the State s witnesses. See Ransom v. State, 920 S.W.2d 288, 300 01 (Tex. Crim. App. 1994). And rebuttal evidence can be offered in certain instances even if the evidence is not disclosed prior to trial. See Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002). Therefore, if we assume the trial court properly allowed the evidence as rebuttal evidence, and if we further assume that pretrial notice was not necessary, the failure to file pretrial motions did not put Appellant in any worse position than if the pretrial motions had been filed. Accordingly, Appellant has not met his burden to show that he suffered prejudice as a result of his counsel not filing the pretrial motions. We overrule Appellant s second issue.

Disposition

We affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered June 6, 2007.

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

(DO NOT PUBLISH)

1 Under Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), evidence is legally sufficient if, when viewing the evidence in a light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See id., 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

2 In his brief Appellant also notes that counsel did not file a motion for access to physical evidence, a motion seeking notice of enhancements, or a motion seeking exculpatory material. Appellant does not make any further arguments about these matters and so cannot have shown a reasonable probability of a different result had the motions been filed.