No. 05-04-00757-CR
Opinion Filed September 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-81647-03. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice RICHTER.
H.M. Griffin appeals his jury conviction and ninety-nine year enhanced sentence for the aggravated assault of his adult daughter Patricia. In three issues, Griffin complains the evidence is legally and factually insufficient to support the conviction and his counsel was ineffective. We affirm.
BACKGROUND
Griffin was arrested after Patricia reported to police officers responding to a 9-1-1 call that Griffin had chased her and her mother Edna out of their house with a butcher knife. At trial, Patricia testified that her parents, who had been married over thirty years, had an "up and down" relationship. Patricia testified Edna had been physically abused by Griffin and was "pretty intimidated" by him. About a week before the assault, "something happened" between Edna and Griffin and Edna had been told not to go home "without the police." On the day of the assault, Patricia accompanied Edna home and found Griffin "riled up." Griffin, who is a diabetic and blind, was "upset" because he had been left home alone for a few days "without any food." Patricia testified that, at Griffin's insistence, Edna called 9-1-1 to report that Griffin had been left without food for a few days. While Edna was on the phone, Griffin "jumped up" from the couch, "ran to the kitchen" to get a knife, started chasing Patricia and Edna, and threatened to kill them, stating he could get away with it because he was a diabetic, had been left without food, and was "seeing a psychiatrist." Patricia testified she and Edna ran out the front door and reported what was happening to the 9-1-1 operator, who stated that officers were on their way. Although Griffin did not follow them outside, he remained for a short time at the doorway displaying the knife and "cussing." Griffin later returned the knife to the kitchen. Patricia testified that Griffin remained more than an arm's length apart from her during the chase and she was not injured, but she still felt threatened by Griffin and was scared. Patricia remained on the line with the 9-1-1 operator until the officers arrived. Patricia's testimony was corroborated in large part by two officers who responded to the 9-1-1 call and spoke with Patricia, Edna, and Griffin at the scene. Patricia's testimony was also corroborated in part by the audiotape of the 9-1-1 call. On the tape, which was played to the jury, Patricia is heard telling the operator that she ran out of the house "fearing for [her] life" because Griffin had "just grabbed a butcher knife on her." No direct testimony was presented concerning the length of the knife's blade and whether the knife was capable of causing death or serious bodily injury but the knife was admitted into evidence. Testifying on Griffin's behalf, Edna denied Griffin assaulted her and Patricia with a knife and denied she had endured physical abuse from him. On cross-examination however, she admitted telling the officers the day of the assault that Griffin had chased them with a knife. She also admitted she had no reason to lie to the officers at that time. Griffin did not testify. At punishment, the State introduced for enhancement purposes records showing Griffin had been previously convicted of injury to a child and delivery of cocaine. The State also established Griffin had other convictions, had physically abused his sons, had a history of drugs, and during a two-year period had six domestic disturbance allegations against him. Griffin pleaded not true to the enhancement allegations but did not otherwise testify. His sole witness was again Edna who denied Griffin was violent. Sufficiency of the Evidence
In his first two issues, Griffin asserts the evidence is legally and factually insufficient to support the conviction. Specifically, he alleges the evidence is insufficient to show he threatened Patricia with imminent bodily injury and insufficient to show the knife was a deadly weapon. Griffin bases his arguments on Patricia's testimony that he was more than an arm's length apart from her during the chase and she was not injured, Patricia's remaining outside the house after the chase rather than fleeing altogether, and the lack of direct testimony concerning the length of the knife's blade and whether it was capable of causing death or serious bodily injury. Griffin characterizes Patricia as a mere bystander and notes that the focus at trial was not on Patricia but on Edna. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In reviewing a factual sufficiency challenge, we view all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We will find the evidence to be factually insufficient when the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In both sufficiency reviews, we must be appropriately deferential to the fact-finder's role as the exclusive judge of the witnesses' credibility and the weight given to the evidence. Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Based on the indictment in this case, to obtain a conviction, the State had to prove Griffin intentionally or knowingly threatened Patricia with imminent bodily injury and, during the commission of the offense, used or exhibited the knife as a deadly weapon. Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2004-05). To prove Griffin used the knife as a deadly weapon, the State had to show that the knife, in the manner of its use or intended use, was capable of causing serious bodily injury or death. Id. § 1.07(a)(17)(B). The State could show this through evidence that Griffin used the knife to threaten deadly force. See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Applying these standards, we conclude that although portions of the trial concerned Edna, the evidence is legally and factually sufficient to support the jury's finding that Griffin assaulted Patricia and used or exhibited the knife as a deadly weapon during the assault. Although Patricia testified that Griffin was more than an arm's length apart from her during the chase and she was not injured, the record also reflects she was scared, felt threatened, and ran out of the house "fearing for [her] life." Additionally, although Patricia remained outside the house rather than fleeing altogether, the record reflects Patricia was on the line with the 9-1-1 operator until the officers arrived. From this evidence, along with the evidence that Griffin was upset and "riled up," grabbed a butcher knife, began chasing Patricia and her mother, and threatened to kill them both, we conclude the jury could rationally have found Griffin intentionally or knowingly threatened Patricia with imminent bodily injury. Moreover, although no direct testimony concerning the length of the knife's blade and whether it was capable of causing death or serious bodily injury was presented, the knife was admitted into evidence and the jury was able to examine it. From this, along with the evidence of Griffin's conduct and actions, we conclude the jury could also rationally have found the knife was capable of causing serious bodily injury or death. We resolve Griffin's first and second issues against him. Effectiveness of Counsel
In his third issue, Griffin asserts his counsel was ineffective. Specifically, he asserts his counsel was ineffective at the guilt-innocence phase for failing to object and for opening the door to evidence of his prior abuse of Edna. Griffin also asserts his counsel was ineffective at the punishment phase for failing to object to the judgment of the conviction for delivery of cocaine and other records. Griffin asserts that, but for counsel's errors, the outcome of trial would have been different. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish deficient performance, the appellant must show that counsel's actions did not result from strategic design and fell below "prevailing professional norms." See Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000); Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). To establish prejudice, the appellant must show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Cardenas, 30 S.W.3d at 391. In determining whether counsel provided effective assistance, we look to the totality of the representation and strongly presume counsel's competence. Thompson, 9 S.W.3d at 813 (Tex.Crim.App. 1985). We do not judge counsel's trial decisions in hindsight and will find counsel was ineffective only if the claim is firmly founded in the record. Id. Without the required showing of deficient performance or sufficient prejudice, the presumption of reasonable counsel will not be overcome. Id. Generally, an appellant cannot overcome on direct appeal the presumption of reasonable counsel without a motion for new trial asserting an ineffective assistance of counsel claim and a hearing on that motion. See Kemp v. State, 892 S.W.2d 112, 115 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). In this case, Griffin filed a timely motion for new trial asserting counsel was ineffective but did not obtain a hearing on that motion or otherwise develop a record showing counsel's reasons for failing to object to and opening the door to the extraneous offense evidence of his abuse of Edna and failing to object to the records of his prior convictions. Although a defendant may be harmed in a number of ways by the admission of extraneous offense evidence and admission of prior convictions, to hold trial counsel's actions ineffective in this case without his explanation for his actions would call for speculation. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App. 2001) (noting that on direct appeal Varelas's claim that counsel was ineffective in failing to request certain instructions in conjunction with extraneous acts admitted during guilt-innocence failed because "bare record did not reveal nuances of trial strategy;" however, on application for writ of habeas corpus, with record of counsel's reasons for omission, claim successful); see also Flowers v. State, 133 S.W.3d 853, 857 (Tex.App.-Beaumont 2004, no pet.) (overruling complaint that counsel ineffective during guilt-innocence phase by failing to object to and eliciting evidence of extraneous offense evidence because record silent as to his reasons for the challenged conduct); Laurant v. State, 926 S.W.2d 782, 783 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (overruling complaint that counsel ineffective in failing to object to allegedly invalid prior conviction used to enhance punishment because record silent as to counsel's strategy). Given the strong presumption of reasonable counsel, we must conclude in light of the silent record that Griffin failed to meet his burden of showing counsel's performance was deficient. We resolve Griffin's third issue against him. We affirm the trial court's judgment.