DAVID GRAY v. ANN WOOD SHOOK--Appeal from 24th District Court of Victoria County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2010 » DAVID GRAY v. ANN WOOD SHOOK--Appeal from 24th District Court of Victoria County

State: Texas

Court: Criminal Court of Appeals

Docket No: 13-09-00255-CV

Case Date: 11/30/2010

Plaintiff: DAVID GRAY

Defendant: ANN WOOD SHOOK--Appeal from 24th District Court of Victoria County

Preview:Ernest Oeffinger v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County
/**/ MEMORANDUM OPINION

No. 04-05-00363-CR

Ernest OEFFINGER, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2004-CR-2029 Honorable Pat Priest, Judge Presiding Opinion by: Sandee Bryan Marion, Justice Sitting: Catherine Stone, Justice Karen Angelini, Justice Sandee Bryan Marion, Justice Delivered and Filed: February 15, 2006

AFFIRMED

A jury found defendant, Ernest Oeffinger, guilty of aggravated robbery. The judge assessed punishment of five years confinement. On appeal, defendant asserts he received ineffective assistance of counsel, the evidence is insufficient to

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support the jury s verdict, and the trial court erred in making an affirmative finding of a deadly weapon. INEFFECTIVE ASSISTANCE OF COUNSEL In his first and second issues, defendant asserts he received ineffective assistance of counsel because his trial counsel failed to 1) elect that the jury assess punishment after filing an application for community supervision and 2) file various motions to preserve a sufficiency of the evidence complaint for appeal. Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 688 (1984). Defendant must show 1) that counsel s representation fell below an objective standard of reasonableness, and 2) but for counsel s errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 688-89; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The reasonableness standard in Strickland requires analyzing the attorney s performance based on the totality of the representation. Strickland, 446 U.S. at 690. The defendant must overcome the presumption that the challenged action of counsel might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). A reviewing court cannot speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837-38 (Tex. Crim. App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-14. Defendant argues his trial counsel was ineffective because he filed an application for community supervision and then elected punishment by the judge. Specifically, defendant contends he did not receive effective assistance of counsel because only the jury could give him community supervision if he was convicted of the aggravated robbery. Defendant is correct that a trial judge may not place a defendant on community supervision if he is adjudged guilty of aggravated robbery. Tex. Crim. Proc. Code Ann. art. 42.12, 3g (Vernon Supp. 2005). However, defendant has not pointed to any place in the record showing that counsel s election for punishment by the judge was due to ineffective assistance rather than trial strategy. When the appellate record contains no evidence of the reasoning behind trial counsel s action, the reviewing court cannot conclude that counsel s performance was deficient, because such determination would be based on speculation. Weeks v. State, 894 S.W.2d 390, 391-92 (Tex. App. Dallas 1994, no pet.). Here, the record does not reveal the reason counsel elected punishment by the judge. The trial judge assessed the minimum punishment of five years and no fine. Tex. Pen. Code Ann. 12.32, 29.03 (Vernon 2003). We do not know what the jury would have done. To find that trial counsel was ineffective based on the record before us would call for speculation, which we will not do. Jackson, 877 S.W.2d at 771. Also, defendant complains about counsel s failure to file a motion for reconsideration, motion for dismissal, or motion for new trial to preserve a sufficiency of the evidence issue for appeal. A claim for sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so. Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001). Accordingly, we conclude defendant has not established that trial counsel s performance fell below an objective standard of reasonableness. SUFFICIENCY OF THE EVIDENCE Defendant also complains that the evidence is insufficient to prove use of a deadly weapon in the robbery. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same); Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). A deadly weapon is defined as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. 1.07(a)(17)(B). Although a knife is not a deadly weapon per se, a knife may be a deadly weapon based on the nature of its use or intended use. Garcia v. State, 17 S.W.3d 1, 4 (Tex. App. Houston [1st Dist.] 1999, pet. ref d). In determining whether a particular knife is a deadly weapon, courts consider the
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following factors: 1) the size, shape, and sharpness of the knife; 2) the manner of its use or intended use; 3) the nature or existence of inflicted wounds; and 4) testimony about the knife s life-threatening capabilities. Id. A person need not be wounded for a knife to be used as a deadly weapon. Denham v. State, 574 S.W.2d 129, 130 (Tex. Crim. App. 1978). In the early morning of October 11, 2003, Andrew Brigance was walking with defendant and a woman when he suddenly was hit on the head. Brigance testified that a bottle struck the back of his head, and he turned and saw that it was defendant who struck him. Brigance also testified that defendant took Brigance s left arm and put it behind his back in a lock-hold position and put a knife to his neck. Brigance described the knife as [s]imiliar to what you would find in the kitchen, light serrated edges, something you would cut with a lemon. Defendant forced Brigance on the top of a car and told him, Give me your wallet, I want your wallet, and also asked for his watch. Brigance gave defendant his wallet and watch. Brigance testified that he was afraid defendant might kill him. Defendant told Brigance to lay on the pavement, which he did. Brigance eventually got up from the pavement and chased after defendant, but was unable to catch him. He then called 911. Brigance later identified defendant in a lineup. After reviewing the record, we hold the evidence is legally and factually sufficient to support a finding that defendant used a deadly weapon, namely a knife. AFFIRMATIVE FINDING Defendant contends the trial court erred in entering an affirmative finding of a deadly weapon. When the jury is the trier of fact, an affirmative finding on use of a deadly weapon may be entered by the trial court in the following three instances: 1) the indictment alleges use of a deadly weapon and the verdict reads guilty as charged in the indictment ; 2) the weapon is deadly per se and the verdict reads guilty as charged in the indictment ; or 3) the jury affirmatively answers a special issue on the use of a deadly weapon. Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). When the indictment specifically charges use of a deadly weapon, an affirmative finding on use of a deadly weapon is de facto made when the defendant is found guilty as charged in the indictment. Id. Here, the indictment alleged defendant intentionally and knowingly threatened and placed Andrew Brigance in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely: a knife in the course of committing theft of property. The jury found defendant guilty of aggravated robbery with a deadly weapon as charged in the indictment. By finding defendant guilty of aggravated robbery as charged in the indictment, the jury necessarily found defendant used a deadly weapon. Polk, 693 S.W.2d at 394. Because the jury found defendant used a deadly weapon, we conclude the trial court did not err in making the affirmative finding. CONCLUSION We overrule defendant s issue on appeal and affirm the trial court s judgment. Sandee Bryan Marion, Justice DO NOT PUBLISH

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