David Hess v. Christi Hess--Appeal from County Court at Law No. 1 of Wichita County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 02-07-00311-CV

Case Date: 11/01/2007

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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