Bill Williams v. State

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-03-00443-CR

____________

BILL WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 916116

MEMORANDUM OPINION

A jury found appellant, Bill Williams, guilty of aggravated assault. The jury

further found the allegations contained in an enhancement paragraph, alleging a prior

conviction for burglary of a building, to be true and assessed punishment at 15 years’

confinement in prison. In six points of error, appellant argues that (1) the evidence

was legally and factually insufficient to prove intent because the complainant’s

testimony (a) was not credible and (b) was insufficiently corroborated and (2)

appellant’s counsel was ineffective, under the federal and state constitutions, because

counsel failed to object to the admission of (a) an extraneous offense and (b) evidence

seized from appellant’s backpack. We affirm.

Background

In the early afternoon of June 25, 2002, while it was raining, Alexandrea

Hampton, the complainant, stood outside a restaurant in a spot where she could stay

dry. The complainant overheard appellant making derogatory racial comments. The

complainant turned toward appellant and asked him to stop making those comments

because she found them to be offensive. Appellant, standing less than a foot away,

lifted up his shirt, pulled a pistol out of his pants, and pointed it at the complainant’s

head. When appellant pulled the pistol on the complainant, he said, “Now, bitch, will

you shut up?” The complainant was shocked and scared and felt threatened. Afraid

that she would be harmed by the pistol, the complainant turned around slowly, walked

back inside the restaurant, told persons what had just happened, and dialed 9-1-1 on

her cell phone.

In the meantime, Gerald Montreal, an off-duty deputy constable, was stopped

at a red light at the intersection of Bissonnet and Wilcrest. Deputy Montreal noticed

appellant pull out a gun and point it at the complainant. Deputy Montreal

immediately called the Houston Police Department (HPD). Because Deputy Montreal

was not in uniform and did not have his revolver with him, he stayed back and

observed appellant as he walked through a field with his blond companion. Deputy

Montreal remained on the phone with the police, telling them in which direction

appellant was headed. Deputy Montreal observed appellant as appellant fired three

rounds from a revolver at cars passing on Bissonnet. Deputy Montreal further

observed appellant and his companion enter a bowling alley. Deputy Montreal waited

in the bowling alley parking lot for police to arrive.

Meanwhile, Larry Sherwood, a patrol officer with HPD, received a call, around

1:00 p.m., that there was a firearm discharged or a shooting in progress near

Bissonnet and Wilcrest. Because Officer Sherwood was nearby, he was able to pull

into the bowling alley immediately upon hearing that appellant was there.

Officer Sherwood and another officer entered the bowling alley, saw appellant,

who matched the suspect’s description, approached him, and handcuffed him.

Appellant was patted down, and Officer Sherwood found a single bullet in appellant’s

front pocket. Officer Sherwood and the other officer escorted appellant outside,

where Deputy Montreal identified appellant as the man he had seen pull the gun on

the complainant.

Officer Sherwood then went back inside the bowling alley to look for

appellant’s companion, whom he found and escorted outside. Upon bringing

appellant’s companion outside, Officer Sherwood learned that appellant had a

backpack with him. Officer Sherwood went inside to retrieve the backpack, which

he located between two arcade machines, next to one beside which appellant had been

standing. Once Officer Sherwood stepped outside with the backpack, he opened it

and found a “snub-nosed type” blue steel revolver.

The complainant, who was brought to the bowling alley by two other officers,

then identified appellant as the individual who had pointed the gun at her. The

complainant also identified the revolver as the one that was pointed at her.

Legal Sufficiency of the Evidence

In his first and third points of error, appellant contends that the evidence was

legally insufficient to support his conviction. When reviewing the legal sufficiency

of evidence, we view the evidence in the light most favorable to the verdict and ask

whether a rational trier of fact could find the essential elements of the crime beyond

a reasonable doubt. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000);

Valencia v. State , 51 S.W.3d 418, 423 (Tex. App. –– Houston [1st Dist.] 2001, pet.

ref ’ d). The fact finder may reasonably infer facts from the evidence before it, credit

the witnesses if it cares to, disbelieve any or all of the testimony proffered, and weigh

the evidence in the manner that it chooses. Bruno v. State , 922 S.W.2d 292, 293

(Tex. App. –– Amarillo 1996, no pet.).

In his first point of error, appellant contends that the State failed to show that

he had the intent to threaten the complainant with imminent bodily injury. A person

commits the offense of aggravated assault if he intentionally or knowingly threatens

another with imminent bodily injury and uses or exhibits a deadly weapon while

doing so. T EX . P EN . C ODE A NN . §§ 22.01(a)(2), 22.02(a)(2) (Vernon 2003). The

“gist” of the offense of assault, as set out in section 22.01(a)(2), is that one acts with

the intent to cause reasonable apprehension of imminent bodily injury; it is not

necessary to show that the defendant actually intended to cause harm. Garrett v.

State , 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). The mere presence of a deadly

weapon, under proper circumstances, can be enough to instill fear and to threaten a

person with bodily injury. See De Leon v. State , 865 S.W.2d 139, 142 (Tex.

App.—Corpus Christi 1993, no pet.); Gaston v. State , 672 S.W.2d 819, 821 (Tex.

App—Dallas 1983, no pet.). The accused’s intent may be inferred from his acts,

words, and conduct. Dues v. State , 634 S.W.2d 304, 305 (Tex. Crim. App. 1982).

Appellant argues that the record does not support a finding that he intended to

threaten the complainant. The complainant testified that, when she told appellant that

his comments about black people were offensive, he lifted up his shirt, pulled a pistol

out of his pants, and pointed it at her head. The complainant also stated that, when

appellant pulled the pistol on her, he said, “ Now, bitch, will you shut up?” Aiming

a deadly weapon at another person is sufficient evidence of a threat to sustain an

aggravated assault conviction. Ward v. State , 113 S.W.3d 518, 521 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d); Anderson v. State , 11 S.W.3d 369, 375-76 (Tex. App. —Houston [1st Dist.] 2000, pet. ref’d); Rodriguez v. State , 955 S.W.2d

171, 174 (Tex. App.—Amarillo 1997, no pet.). Viewing the evidence in the light

most favorable to the verdict, any rational juror could have concluded that appellant

pointed a firearm at the complainant; thus, the evidence was legally sufficient to

establish the threat necessary for aggravated assault. Accordingly, we overrule

appellant’s first point of error.

In his third point of error, appellant suggests that the evidence is legally

insufficient because the State’s evidence was not credible. Appellant contends that

the complainant was not a credible person because she had been convicted of forgery

and prostitution. Appellant also claims that Deputy Montreal’s testimony did not

sufficiently corroborate the complainant’s testimony because Deputy Montreal was

three lanes away when he saw appellant point the gun at the complainant. The jury,

not the appellate court, determines the credibility of the evidence. See Williams v.

State , 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). The jury was presented with the

complainant’s background and was entitled to believe her testimony that appellant

pointed a gun at her, as well as Deputy Montreal’s testimony that he saw appellant

point a gun at the complainant. Accordingly, we overrule appellant’s third point of

error. Factual Sufficiency of the Evidence

In his second and fourth points of error, appellant contends that the evidence is

factually insufficient to support his conviction for aggravated assault. In reviewing

the evidence on factual sufficiency grounds, all of the evidence as a whole must be

reviewed neutrally, not in the light most favorable to the prosecution. Johnson v.State ,

23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The Court of Criminal Appeals has recently

clarified the standard:

There is only one question to be answered in a factual-sufficiency

review: Considering all of the evidence in a neutral light, was a jury

rationally justified in finding guilt beyond a reasonable doubt? However,

there are two ways in which the evidence may be insufficient. First,

when considered by itself, evidence supporting the verdict may be too

weak to support the finding of guilt beyond a reasonable doubt. Second,

there may be both evidence supporting the verdict and evidence contrary

to the verdict. Weighing all evidence under this balancing scale, the

contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict

should not stand. This standard acknowledges that evidence of guilt can

“preponderate” in favor of conviction but still be insufficient to prove the

elements of the crime beyond a reasonable doubt. Stated another way,

evidence supporting guilt can “outweigh” the contrary proof and still be

factually insufficient under a beyond-a-reasonable-doubt standard.

Zuniga v. State , No. 539-02, slip op. at 8 (Tex. Crim. App. Apr. 21, 2004). In a factual

sufficiency review, the appellate court should not substitute its own judgment for that

of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim. App. 1996).

Under both legal and factual sufficiency, the jury is the exclusive judge of the

facts, the credibility of the witnesses, and the weight to be given to the witnesses’

testimony. Jaggers v. State , 125 S.W.3d 661, 671 (Tex App.—Houston [1st Dist.]

2003, no pet.). The jury may believe all, some, or none of any witness’s testimony.

See Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)

T he complainant’s testimony at trial that appellant pointed a gun at her was

uncontroverted. Although appellant argues that no other witness saw the offense,

Deputy Montreal’s testimony that he saw appellant point a gun at the complainant and

that his view was unobstructed was also uncontroverted. Even though appellant

presented no witnesses, he tried to impeach the State’s witnesses by showing either

prior convictions or poor vantage point. The complainant and Deputy Montreal both

identified appellant as the person who pulled the gun on the complainant. After

viewing all of the evidence in a neutral light, we hold that the evidence is factually

sufficient to support appellant’s conviction. Accordingly, we overrule appellant’s

second and fourth points of error.

Ineffective Assistance of Counsel

In his fifth and sixth points of error, appellant argues that he received ineffective

assistance of counsel at trial, in violation of the Sixth Amendment of the United States

Constitution and in violation of Article I, Section 10 of the Texas constitution. See

U.S. Const. amend. VI; Tex. Const. art. I, § 10. Appellant claims that trial counsel

failed to object to what appellant characterizes as an inadmissible extraneous offense

and failed to object to what he believed was an illegal search of his backpack and

seizure of the revolver.

The standard of review for evaluating claims of ineffective assistance of counsel

is set forth in Strickland v. Washington , 466 U.S. 668, 687-96 , 104 S. Ct. 2052,

2064-69 (1984). See Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

Appellant must show both that (1) counsel’s performance was so deficient that he was

not functioning as acceptable counsel under the Sixth Amendment and (2) there is a

reasonable probability that, but for counsel’s error or omission, the result of the

proceedings would have been different, i.e. , that the error is sufficient to undermine

confidence in the outcome. Strickland , 466 U.S. at 687-96 , 104 S. Ct. at 2064-69 .

Effective assistance of counsel does not mean errorless counsel. See Saylor v. State ,

660 S.W.2d 822, 824 (Tex. Crim. App. 1983). In determining whether counsel was

ineffective, we consider the totality of the circumstances of the particular case.

Thompson , 9 S.W.3d at 813 .

It is the defendant’s burden to prove ineffective assistance of counsel by a

preponderance of the evidence. Id . A defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial

strategy. Gamble v. State , 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996,

no pet.). Assertions of ineffective assistance of counsel must be firmly founded in the

record. Bone v. State , 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). We normally will

not speculate to find trial counsel ineffective when the record is silent on counsel’s

reasoning or strategy. See Henderson v. State , 29 S.W.3d 616, 624 (Tex.

App.—Houston [1st Dist.] 2000, pet. ref’d); Gamble , 916 S.W.2d at 93 . However, “in

the rare case where the record on direct appeal is sufficient to prove that counsel’s

performance was deficient, an appellate court should obviously address the claim . . . .”

Robinson v. State , 16 S.W.3d 808 , 813 n.7 (Tex. Crim. App. 2000).

Appellant points to two instances in the record in which he believes that trial

counsel should have objected. First, appellant contends that trial counsel should have

objected when Deputy Montreal testified that, while he was following appellant in his

vehicle, appellant discharged his weapon at the vehicles passing by on Bissonnet.

Second, appellant complains that trial counsel did not object to or file a motion to

suppress the warrantless search of his backpack and seizure of his revolver.

A. Discharging the Weapon

In order to meet the first prong of the Strickland test, appellant must not only

specifically identify the deficiencies in counsel’s performance, but must also identify

the specific objection that should have been made and provide authority in support of

his argument that the objection would have been meritorious. See Mallet v. State , 9 S.

W.3d 856, 867 (Tex. App.—Fort Worth 2000, no pet.); Simms v. State , 848 S.W.2d

754, 758 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).

Here, appellant has identified the alleged deficiencies, but has failed to supply

the specific objections that he expected trial counsel to make or to supply argument or

authority as to how these objections would have been meritorious. He, therefore, has

not shown that counsel was ineffective for failing to make objections. A reviewing

court will not substitute speculation for a properly developed record supported by legal

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

the record contains no evidence of the reasoning behind trial counsel’s action, the

reviewing court generally cannot conclude that counsel’s performance was deficient.

Id .

Furthermore, failure to object to admissible evidence does not constitute

ineffective assistance of counsel. See Gosch v. State , 829 S.W. 2d 775, 784 (Tex.

Crim. App. 1991). Deputy Montreal’s testimony that appellant discharged his firearm

at passing vehicles as he fled the scene was admissible both as evidence of appellant’s

intent and as same transaction contextual evidence.

All relevant evidence is admissible unless excluded by law. T EX . R. E VID . 402.

Relevant evidence is evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence. T EX . R. E VID . 401. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person and that he acted

in conformity therewith, but it may be admissible for other purposes such as proof of

motive, intent, opportunity, preparation, plan, knowledge, identity, or absence of

mistake or accident. T EX . R. E VID . 404 (b).

The indictment in this case alleged that appellant threatened the complainant

with a firearm. Although appellant did not put on a case at trial, through cross-examination of the State’s witnesses, it became clear that appellant’s defense was that

he did not intend to threaten the complainant. Evidence of appellant’s discharging a

firearm at passing vehicles while leaving the scene of the assault showed that appellant

was in possession of the weapon that he pointed at the complainant just minutes before

and was willing to shoot it at others. Accordingly, such evidence was relevant. See

T EX . R. E VID . 404 (b).

Moreover, because intent was a contested issue in this case, the State was

entitled to present evidence to refute appellant’s defense. See Brown v. State , 866

S.W.2d 675, 682 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). Appellant’s

subsequent discharge of the firearm at passing motorists, after having pointed the gun

at the complainant, showed his intent to threaten and perhaps to cause harm to others.

See Lum v. State , 903 S.W.2d 365, 371-72 (Tex. App.—Texarkana 1995, pet. ref’d)

(holding that, in a vehicular homicide case, appellant’s possession of firearms in his

truck and his intent to conceal them could be probative of his intent and state of mind).

In addition to evidencing intent, appellant’s actions in discharging his firearm

at passing motorists was admissible as same transaction contextual evidence because

it had some relevance to show the context of the offense. Evidence of other crimes,

wrongs, or acts may also be admissible as “same transaction” contextual evidence. See

Camacho v. State , 864 S.W.2d 524, 535 (Tex. Crim. App. 1993) Same transaction

contextual evidence is deemed admissible as an exception to the so-called propensity

rule when “several crimes are intermixed, or blended with one another, or connected

so that they form an indivisible criminal transaction, and full proof by testimony,

whether direct or circumstantial, of any of them cannot be given without showing the

others.” Rogers v. State , 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Such evidence

imparts to the fact finder information essential to understanding the context and

circumstances of events that, although legally separate offenses, are blended or

interwoven. See Camacho , 864 S.W.2d at 532 . Juries have a right to hear what

occurred immediately prior to and subsequent to the commission of the charged act, so

that they may realistically evaluate the evidence. See Wesbrook v. State , 29 S.W. 3d

103, 115 (Tex. Crim. App. 2000) (holding that evidence of three additional killings in

the same evening were admissible without limiting instruction as same transaction

contextual evidence).

Thus, trial counsel was not ineffective because the admission of evidence that

appellant discharged his firearm at passing motorists, after having pointed that weapon

at the complainant, was properly admitted.

B. Seizure and Search of the Backpack

Likewise, trial counsel’s failure to file a motion to suppress the search of the

backpack and the seizure of the revolver found inside was not ineffective assistance of

counsel because officers could have seized and searched the backpack incident to

appellant’s arrest. In order to establish ineffective assistance, an appellant is obliged

to prove that, had a motion to suppress been pursued, it would have been granted. See

Jackson v. State , 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Appellant must,

therefore, develop facts and details of the search sufficient to conclude that the search

was invalid. Id .

The State advances lack of standing and abandonment as theories to show the

validity of the search of appellant’s backpack. This Court asserts, however, that the

officers could have seized the backpack and searched it incident to arrest. Once the

police have lawfully arrested a person, they may conduct a warrantless search of the

person and of objects immediately associated with him. Jones v. State , 640 S.W.2d

918, 921 (Tex. Crim. App. 1982). A search may be incident to arrest only if it is

substantially contemporaneous with the arrest and is confined to the immediate vicinity

of the arrest. Pope v. State , 635 S.W.2d 815, 817 (Tex. App.—Dallas 1982, no pet.).

Clearly, the backpack was an object immediately associated with appellant’s person,

as eyewitnesses, including Deputy Montreal, described appellant’s carrying it. As a

result, the officers’ search of the backpack constituted a lawful warrantless search

incident to a lawful arrest. Because appellant has failed to demonstrate in the record that his trial counsel

was ineffective under the first prong of the Strickland test, we overrule appellant’s fifth

point of error.

C. Other Standards

Although, in his sixth point of error, appellant briefs his state constitutional law

claim separately, he makes no argument and provides no authority asserting that the

state constitution provides greater protection than the federal constitution. The Court

of Criminal Appeals has held that state constitutional and statutory provisions do not

create a standard in ineffective assistance cases that is more protective of a defendant’s

rights than the standard put forward by the Supreme Court in Strickland , and the Court

has expressly provided that Texas courts will follow the Strickland standards in

determining ineffective assistance and prejudice resulting therefrom. Hernandez v.

State , 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).

Here, appellant asks this Court to “re-adopt” the Duffy test, which did not require

an appellant to show harm or prejudice, and essentially applied only the first prong of

Strickland in deciding an ineffective-assistance-of-counsel claim under state

constitutional law. See Ex Parte Duffy , 607 S.W.2d 507, 509 (Tex Crim. App. 1980).

However, the Court of Criminal Appeals expressly overruled Duffy in deciding

Hernandez v. State , 988 S.W.2d 770 (Tex. Crim. App. 1999). The Hernandez Court

held that the two-pronged Strickland standard applies to all ineffective-assistance-of-counsel claims alleging a deficiency in attorney performance at non-capital sentencing

proceedings. Id. at 773 . The Court of Criminal Appeals specifically held that, as a

matter of federal constitutional law, the Court was required to disregard principles of

stare decisis and overrule its decision in Duffy , as well as Ex Parte Cruz , 739 S.W.2d

53 (Tex. Crim. App. 1987). See Hernandez , 988 S.W.2d at 772 .

Consequently, we decline appellant’s request to “re-adopt” the Duffy test for

determining ineffective assistance of counsel. We overrule appellant’s sixth point of

error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.4.