Opinion
No. 04-02-00635-CR
Delivered and Filed: September 3, 2003. DO NOT PUBLISH.
Appeal From the 226th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-0055, Honorable Pat Priest, Judge Presiding. AFFIRMED
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Timothy Mayfield was convicted of sexual assault, and sentenced to life imprisonment in the Institutional Division of the Department of Criminal Justice. We affirm.
Background
On June 24, 2000, Linda Reyes walked home from a local bar. On her way home, Mayfield struck Reyes from behind. As a result of the blow, Reyes fell to the ground. Mayfield grabbed Reyes and struck her in the mouth. The impact of this second blow rendered Reyes unconscious. Mayfield dragged Reyes into a field and sexually assaulted her. Reyes regained consciousness several hours later and walked home. Reyes called the police several hours later to report the assault. Mayfield was subsequently convicted of sexual assault, and sentenced to life imprisonment in the Institutional Division of the Department of Criminal Justice as a repeat felony offender.Discussion A. Excited Utterance Exception
Mayfield's first issue challenges an evidentiary ruling of the trial court. At trial, the State called San Antonio Police Officer Jamie Diaz, the police officer who investigated Reyes's claim, to testify. During Officer Diaz's testimony, the following exchanges occurred:Q: Describe for the jury how you found her emotionally and physically?
A: She was crying, couldn't really talk. She was crying a lot. She had bruises on her face and stuff. I said what is going on, was anybody at home. I was more curious what the call came out to if anybody was home. She said no.
[Mayfield's Counsel]: I object to the hearsay.
THE COURT: What hearsay?
[Mayfield's Counsel]: He is talking about — testifying to what Linda Reyes told him.
THE COURT: I will overrule that as an excited utterance.
[Mayfield's Counsel]: I object. I don't believe that the prosecutor has met that exception.
THE COURT: Overruled.
Q: What did she tell you, sir?
A: She told me was raped, she said. I asked what occurred and she explained to me she was leaving a bar —
[Mayfield's Counsel]: Judge, again, I object to hearsay and at this time now the question is more like a conversation between them, rather than an excited utterance.
THE COURT: Overruled.Mayfield contends that the trial court erred in ruling Officer Diaz's testimony was admissible under the excited utterance exception to the hearsay rule. We review the trial court's ruling regarding the admissibility of evidence under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex.Crim.App. 2001). A trial court abuses its discretion if the trial court's ruling is outside the zone of reasonable disagreement. Id. Under this standard, we do not substitute our judgment for that of the trial court, but simply determine whether the trial court's ruling was arbitrary or unreasonable. Id. at 148. The admission of hearsay testimony is precluded except as provided by statute, the Texas Rules of Evidence, or by other rules prescribed pursuant to statutory authority. Tex.R.Evid. 802. One of the exceptions to the general hearsay rule is the "excited utterance" exception. Tex.R.Evid. 803(2). Rule 803 of the Texas Rules of Evidence states: "[t]he following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . . A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event of condition." Id. When determining whether a hearsay statement is admissible as an excited utterance, courts may consider the time elapsed and whether the statement was in response to a question. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). "[I]t is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception." Id. at 596. The critical determination for whether a statement is an excited utterance is "'whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event' or condition at the time of the statement." Id. (citing McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App. 1992)). In other words, we must determine whether the statement was made "'under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection.'" Id. (citing Fowler v. State, 379 S.W.2d 345, 347 (Tex.Crim.App. 1964)). In this case, a startling event clearly occurred. Although approximately ten hours passed between the assault and the statement, Reyes was unconscious for a significant part of that time. The fact that Reyes's statements were in response to questions by Officer Diaz does not, by itself, make the statements inadmissible. See id. The amount of time that elapsed and whether the statements were made in response to a question are only two factors to consider in determining whether a statement is an excited utterance. See id. The critical question is whether, at the time of the statement, Reyes was still under the influence of emotions generated by the startling event. See id. Reyes's crying and difficulty communicating at the time the statements were made suggest Reyes was still under the influence of the emotions generated by Mayfield's attack. Thus, we believe that the trial court did not abuse its discretion when it admitted the statements in question. Mayfield's first issue is overruled.
B. Ineffective Assistance of Counsel
Mayfield's next contention is that defense counsel failed to render effective assistance of counsel. Mayfield alleges he was denied effective assistance of counsel because defense counsel failed to: (1) object to prejudicial evidence presented by the prosecution during the guilt-innocence phase of the trial; and (2) comply with the statutory requirement for obtaining notice from the State as to what extraneous offense evidence it would seek to have admitted at the punishment stage of trial. We disagree. The United States and Texas Constitutions guarantee the right to reasonably effective counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. To reverse a criminal defendant's conviction on ineffective assistance of counsel grounds, the defendant must demonstrate by a preponderance of the evidence that: (1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812. On review, we give great deference to counsel's representation at trial. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). We look to the totality of the representation at trial, not isolated acts or omissions of counsel in hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986). Any allegations of ineffectiveness must be firmly founded in the record, and the defendant must overcome the strong presumption that counsel rendered adequate assistance and that counsel's actions were the result of sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). In most cases, "the record on direct appeal will usually not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel's conduct was reasonable and professional." Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Mayfield first points to defense counsel's failure to timely object to allegedly prejudicial evidence presented by the prosecution during the guilt-innocent phase of the trial. Mayfield argues defense counsel failed to object on two separate occasions to claims that Mayfield was initially identified by the police through the CODIS system, a national database that contains biological evidence. The first time defense counsel failed to object was during the State's opening statement. The prosecutor stated: When Linda Reyes was having this test done on her they found sperm and they found semen. That evidence was given to the Bexar County Crime Lab. That evidence was put into a computer and that DNA was matched to Timothy Mayfield. The second time was during the testimony of Detective Guy Durden.Q: Did you come to learn that there had been some forensic evidence obtained for Ms. Reyes?
A: Yes.
Q: Did you transport that evidence, did you have that evidence transported anywhere?
. . . .
A: I had the sexual assault kit sent to the Bexar County Crime Lab. At that point I found there was DNA evidence within our sexual assault kit.Q: Did that evidence lead you to the identity of the suspect?
A: Yes, it did.
Q: What is the name of the person it lead you to?
A: Timothy Mayfield.
Q: Upon receiving information of Mr. Mayfield's identity what did you do next?
A: I issued an arrest warrant.We have searched the record and found no explanation of the motivation behind counsel's trial decisions. Because the record is silent regarding any explanation for counsel's actions, we conclude Mayfield has failed to overcome the strong presumption that trial counsel performed in a reasonably professional manner regarding the database evidence. See Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813. Mayfield's final contention is that counsel's failure to obtain notice of the extraneous offense evidence that the prosecution was seeking to have admitted at the punishment stage left his counsel unprepared for trial. During the punishment phase of the trial, Mayfield's counsel objected to the State's use of extraneous offenses because the State failed to give notice as required under article 37.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2003). Article 37.07 of the Code of Criminal Procedure requires the attorney representing the State to give notice of the intent to introduce evidence of an extraneous crime or bad act that "has not resulted in a final conviction in a court of record of a probated or suspended sentence." Id. However, this requirement "applies only if the defendant makes a timely request to the attorney representing the state for the notice." Id. Mayfield's counsel did request notice of the intent to introduce evidence of an extraneous crime or bad act, but the request was made in the form of a motion to the trial court, not a request to the attorney for the State as the statute requires. See id. Moreover, Mayfield's counsel failed to obtain a ruling on the motion for notice of extraneous crimes. As a result, the trial court found that Mayfield's request for notice was procedurally incorrect and overruled the trial counsel's objection to the introduction of extraneous offenses. After the objection on the notice issue was overruled, defense counsel noted on two occasions that she was unprepared to ask questions of certain witnesses and chose not to make a closing argument. Mayfield asserts that counsel's failure to cross-examine witnesses and present a closing argument demonstrate that his counsel was ineffective. However, the record fails to affirmatively show what would have been done for Mayfield if his counsel had cross-examined the witnesses or made a closing argument. There is nothing in the record to show that counsel's actions had any impact on the jury's verdict. The record simply does not show how questioning the State's witnesses or delivering a closing argument during the punishment phase would have altered the outcome of Mayfield's case. See Bone, 77 S.W.3d at 836-37. Consequently, we hold Mayfield has failed to meet his burden. Mayfield's second issue is therefore overruled.