Lajuan Scott Freeman v. State of Texas--Appeal from 124th District Court of Gregg County

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State: Texas

Court: Texas Northern District Court

Docket No: 06-01-00004-CR

Case Date: 11/30/2001

Plaintiff: Carl Aubrey Butler

Defendant: T.D.C.J. - I.D.--Appeal from 3rd District Court of Anderson County

Preview:Reginald Ray Spivey v. The State of Texas--Appeal from 77th District Court of Limestone County
MAJORITY | MAJORITY IN THE TENTH COURT OF APPEALS

No. 10-02-00297-CR Reginald Ray Spivey, Appellant v. The State of Texas, Appellee

From the 77th District Court Limestone County, Texas Trial Court # 9854-A MEMORANDUM Opinion

This appeal concerns a conviction for unlawful possession of a firearm by a felon. See Tex. Penal Code Ann. 46.04(a) (Vernon Supp. 2004). We will affirm. 1. Legal Sufficiency of the Evidence. In Appellant s first issue, he contends that the evidence that he possessed a firearm was legally insufficient. We will overrule Appellant s issue. Appellant points to evidence that he was not found at the scene of the offense; and was not in possession of a firearm at the time of his arrest. The offense took place in Mexia, Texas, on April 27, 2002, after which a warrant for Appellant s arrest was issued; Appellant was arrested on the warrant on March 6.[1] The victim testified that Appellant pulled a pistol out of his pants and beat him with it. Photographs and medical records showed the victim s injuries, including fractures to the bones of his face. The radiologist and emergency room doctor who treated the victim testified that his injuries were consistent with blows from a blunt object. Testimony of the investigating officer corroborated this other evidence. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Appellant possessed a firearm. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Martinez v. State, 129 S.W.3d 101, 105 (Tex. Crim. App. 2004). We overrule Appellant s first issue. 2. Factual Sufficiency of the Evidence. In Appellant s second issue, he contends that the evidence that he possessed a firearm was factually insufficient. We will overrule Appellant s issue.
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Appellant points to the following evidence that, he argues, is contrary to the verdict:[2] When the Mexia police officer responded to the initial call, to the bar where Appellant assaulted the victim, neither Appellant nor the victim was still there. When the officer returned to the bar for follow-up investigation, he did not speak to anyone who could confirm or deny the victim s complaint; he did not speak to anyone. A warrant was issued for Appellant s arrest, and he was later arrested. The officer was not acquainted with Appellant. The medical evidence alone did not allow the victim s doctors to determine the instrument that caused his injuries any more specifically than to say that it was a blunt object. The evidence supporting the verdict is stated above. Considering the evidence in a neutral light, and giving due deference to the jury s credibility determinations, the jury was rationally justified in finding beyond a reasonable doubt that Appellant possessed a firearm. See Zuniga v. State, No. 539-02, 2004 Tex. Crim. App. LEXIS 668, at *20 (Tex. Crim. App. Apr. 21, 2004); Martinez, 129 S.W.3d at 106. We overrule Appellant s second issue. 3. Discovery. In Appellant s third issue, he contends he was denied due process in that the State did not produce the pistol, which law enforcement officers never found, for examination by an expert. Appellant does not point to any place in the record where his complaint is preserved, and thus forfeits the complaint. See Tex. R. App. P. 33.1(a); Garza v. State, 126 S.W.3d 79, 81-82 (Tex. Crim. App. 2004); Simpson v. State, 119 S.W.3d 262, 267 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2837 (2004); cf. Cooks v. State, 844 S.W.2d 697, 737 (Tex. Crim. App. 1992) ( where the existence of evidence is unknown, the court cannot compel production thereof ). We overrule Appellant s third issue. 4. Effective Assistance of Counsel. In Appellant s fourth issue, he contends that his trial counsel failed to render the effective assistance of counsel. We will overrule Appellant s issue. Appellant s primary complaint is that counsel did not object to evidence of a prior felony conviction, and did not object to references to that conviction throughout trial. A prior felony conviction is an element of the offense of possession of a firearm by a felon. See Tex. Penal Code Ann. 46.04(a). Evidence thereof was thus admissible, and references thereto were proper. See Hollen v. State, 117 S.W.3d 798, 802 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2022 (2004). Not objecting to admissible evidence does not constitute ineffective assistance. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992); Bell v. State, 867 S.W.2d 958, 962 (Tex. App. Waco 1994, no pet.); see Jackson v. State, 33 S.W.3d 828, 841 (Tex. Crim. App. 2000). Appellant also contends that counsel did not object to references to an extraneous offense in the penitentiary packet that the State offered to prove the prior conviction. See Tex. Code Crim. Proc. Ann. art. 42.09, 8(b) (Vernon Supp. 2004). We do not perceive that two obscure references to dates in the penitentiary packet refer to a later conviction. Appellant also complains that counsel did not object to the admission, during the punishment phase, of the judgment of Appellant s conviction for aggravated robbery. The judgment recites, in error, that Appellant is guilty of the offense of AGGRAVATED ASSAULT. We do not perceive that counsel s not objecting on that basis was professionally unreasonable, or that Appellant suffered any prejudice thereby. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Strickland v. Washington, 466 U.S. 668, 694 (1984); Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2098 (2004). We overrule Appellant s fourth issue. Having overruled Appellant s issues, we affirm the judgment. TOM GRAY Chief Justice Before Chief Justice Gray,
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Justice Vance, and Justice Reyna (Justice Vance concurring) Opinion delivered and filed September 15, 2004 Affirmed Do not publish [CR25]

[1] In Appellant s brief, he states that the arrest warrant was executed in Austin. Appellant does not point to evidence of this in the record. [2] Appellant also points to evidence from the punishment phase of trial, which we do not consider in evaluating the sufficiency of the evidence of his guilt.

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