Michael Anthony Caraway v. The State of Texas--Appeal from 40th District Court of Ellis County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 2005 » Michael Anthony Caraway v. The State of Texas--Appeal from 40th District Court of Ellis County

State: Texas

Court: Texas Northern District Court

Docket No: 10-04-00364-CR

Case Date: 11/09/2005

Plaintiff: John R. Smith

Defendant: Barbara Ann Smith--Appeal from 123rd District Court of Shelby County

Preview:Michael Anthony Caraway v. The State of Texas-Appeal from 40th District Court of Ellis County
IN THE TENTH COURT OF APPEALS

No. 10-04-00364-CR Michael Anthony Caraway, Appellant v. The State of Texas, Appellee

From the 40th District Court Ellis County, Texas Trial Court No. 28044CR MEMORANDUM Opinion

A jury convicted Michael Anthony Caraway of aggravated robbery and assessed his punishment at sixty years imprisonment. Caraway contends in six points that: (1) the indictment is constitutionally insufficient to vest the trial court with jurisdiction; (2) the evidence is legally insufficient to prove that the pocket knife used in the robbery was a deadly weapon; (3) the evidence is factually insufficient to prove that the pocket knife was a deadly weapon; (4) the evidence is factually insufficient to establish his guilt; (5) he received ineffective assistance of counsel; and (6) the brevity of the jury s deliberations at guilt-innocence denied his constitutional right to a fair trial. We will affirm. The Indictment Caraway contends in his first point that the indictment is constitutionally insufficient to vest the trial court with jurisdiction because it states on its face that it was presented by a grand jury whose term did not commence until several months after his trial concluded. The indictment recites in pertinent part that it was presented by a grand jury which was impaneled as such for the County of Ellis, State of Texas, at the December 2004 Term of the 40th Judicial District Court for said County. The indictment was filed by the district clerk in February 2004. Caraway was tried in August 2004. An error in the designation of the grand jury s term is an error of form. See Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). If a defendant fails to object before trial to a defect of form in an indictment, the defendant waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal
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or in any other postconviction proceeding. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). Caraway raises this complaint for the first time on appeal. Because he failed to object before trial, he has failed to preserve this issue for appellate review. See id.; Rodriguez, 899 S.W.2d at 664. Accordingly, we overrule his first point. Deadly Weapon Caraway contends in his second and third points respectively that the evidence is legally and factually insufficient to prove that the pocket knife used in the robbery was a deadly weapon. When reviewing a legal insufficiency complaint, we consider all the evidence in the record and ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004) (quoting Jackson v. Va., 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). When reviewing a factually insufficiency complaint, we ask whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or whether the contrary evidence is so strong that the beyond-areasonable-doubt standard could not have been met. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). Here, the issue is whether there is legally and factually sufficient evidence to support a finding that the pocket knife was in the manner of its use or intended use . . . capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. 1.07(1)(17)(B) (Vernon Supp. 2005); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). To determine whether a knife was used as a deadly weapon, we examine: the size, shape, and sharpness of the knife; the manner of its use or intended use; the nature or existence of inflicted wounds; and any testimony of the knife s life-threatening capabilities. See Thomas v. State, 821 S.W.2d 616, 619 (Tex. Crim. App. 1991); Nickerson v. State, 69 S.W.3d 661, 670 (Tex. App. Waco 2002, pet. ref d). If admitted in evidence, we may also consider the knife itself in evaluating the deadly weapon finding. Cf. Robertson v. State, 163 S.W.3d 730, 734 (Tex. Crim. App. 2005) (if admitted in evidence, knife itself should be considered by appellate court in determining whether it is a deadly weapon by design). In this case, the complainant Trent Pasano was returning home to St. Louis, Missouri from San Antonio where he had been working for several weeks. Pasano stopped at a rest area on Interstate 35 to get some sleep before continuing his journey. He was awakened when the driver s side window exploded on him. Two African-American men were standing there demanding that he give them his money. Pasano struggled with them as he started his pickup. One of the attackers, whom Pasano identified as Caraway, slit [Pasano s] wrist with a pocket knife. As a result, he was bleeding profusely. The wound required stitches. Pasano testified that he believed the knife to be capable of causing death or serious bodily injury. The State offered photographs depicting Pasano s injuries which corroborated his testimony about the nature of the injuries and the extent of the bleeding. The knife was admitted in evidence. Trooper Bobo, the officer to whom Pasano first reported the robbery, testified that Pasano was bleeding and there was quite a bit of blood inside [his] vehicle and on his person. An in-car video from Trooper Bobo s patrol car was also admitted in evidence. On this video, an unidentified trooper is heard stating that Pasano was bleeding profusely. [1]

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Trooper Bobo testified that the knife is something that in the manner of its use or intended use could cause death or serious bodily injury. Another trooper testified that the knife, depending on the manner in which it is used, [is] capable of causing death or serious bodily injury. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that the knife was in the manner of its use or intended use . . . capable of causing death or serious bodily injury. See Morales v. State, 633 S.W.2d 866, 868-69 (Tex. Crim. App. [Panel Op.] 1982); Nickerson, 69 S.W.3d at 670. Viewing the evidence in a neutral light, we cannot say that the evidence is too weak to support the finding that the knife was in the manner of its use or intended use . . . capable of causing death or serious bodily injury. See Zuniga, 144 S.W.3d at 484. Accordingly, we overrule Caraway s second and third points. Factual Sufficiency Caraway contends in his fourth point that the evidence is factually insufficient to establish his guilt. He relies primarily on contradictions in the evidence to support this contention. Caraway identifies eleven incidences of contrary and contradictory evidence which he contends render the evidence factually insufficient. 1) Pasano initially told Trooper Bobo he had been cut with a razor, then later referred to it as a box cutter at the scene of Caraway s arrest. 2) Pasano failed to notice that the car Trooper Bobo had stopped was the same car he was attempting to follow. 3) Pasano initially told Trooper Bobo there were three black guys in the car. 4) Pasano testified that he saw a white male getting in the car in which Caraway fled from the rest area, but Trooper Bobo testified that he thought Pasano was talking about boxer shorts sticking out of one of the other passengers pants. 5) The driver of the car Caraway was riding in initially told Trooper Bobo that he was speeding because the accelerator was stuck; the driver later told Trooper Bobo that the two white males in the car had been there with him during the robbery attempt; and the video depicts the driver s arm as having numerous cuts and scratches which suggests that he was personally involved in the attempted robbery. 6) Another trooper at the scene testified that he told Trooper Bobo there was a knife in the rear seat of the car, but the video reflects that Trooper Bobo was the first officer to mention the presence of a knife. 7) Trooper Bobo testified and the video reflects that the occupants were making furtive gestures, which supports the notion that the driver may have been the person wielding the knife and was passing it to the rear-seat occupants when Trooper Bobo was in the process of stopping them. 8) The verbal evidence (testimony and video) that Pasano was bleeding profusely is not supported by the photographic evidence. 9) On the video, [the driver] appears more than willing to put the blame for what happened at the rest stop on the two Black males. 10) Caraway appears on the video to have been relaxed during the course of the stop while the other occupants appeared very agitated and fearful. 11) All the occupants other than Caraway had crack pipes.

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These discrepancies largely concern credibility.[2] The jury is the ultimate fact finder on issues of credibility, and by its verdict, the jury chose to believe the State s version of the events. See Parker v. State, 119 S.W.3d 350, 355 (Tex. App. Waco 2003, pet. ref d). We must defer to the jury in its resolution of such issues. Id. Thus, we cannot say that the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or that the controverting evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. Accordingly, we overrule Caraway s fourth point. Ineffective Assistance of Counsel Caraway contends in his fifth point that he received ineffective assistance of counsel. He contends that his trial counsel failed to conduct an adequate pretrial investigation; failed to employ effective cross-examination; failed to make meaningful objections; and failed to realize the law applicable to deadly weapons. However, Caraway did not raise the issue of ineffective assistance of trial in his motion for new trial. We begin with a strong presumption that counsel provided reasonably professional assistance, and an appellant bears the burden of overcoming this presumption. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Generally, the appellate record is insufficient to satisfy this burden. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). [I]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Id. (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). The primary focus of Caraway s contention that his trial counsel failed to conduct an adequate pretrial investigation rests on his supposition that counsel should have engaged in a thorough review and analysis of the videotape so counsel could have highlighted the inconsistencies between the tape and the trial testimony. However, the record demonstrates that Caraway s trial counsel did note some of these discrepancies for the jury in closing argument. Counsel also sought to discredit Pasano s identification because of his weariness at the time of the robbery. We can only speculate as to the wisdom or adequacy of this strategy. However, that a trial strategy does not work does

not mean that counsel was ineffective. See Johnson v. State, 2004 Tex. App. LEXIS 5939 at *14 (Tex. App. Houston [1st Dist.] July 1, 2004, pet. ref d). The trial court properly instructed the jury on the law regarding deadly weapons. With regard to the remainder of Caraway s ineffective assistance claims, the record is inadequate to overcome the strong presumption that counsel provided reasonably professional assistance. See Scheanette, 144 S.W.3d at 510. Accordingly, we overrule Caraway s fifth point. Constitutional Right to a Fair Trial Caraway contends in his sixth point that the brevity of the jury s deliberations at guilt-innocence denied his constitutional right to a fair trial. The record reflects that the jury s deliberations lasted nineteen minutes. Caraway did not raise this objection at trial. Thus, he has not preserved it for appellate review. See Hull v. State, 67 S.W.3d 215, 216-18 (Tex. Crim. App. 2002); Jaenicke v. State, 109 S.W.3d 793, 795 n.3 (Tex. App. Houston [1st Dist.] 2003, pet. ref d); Murray v. State, 24 S.W.3d 881, 890 (Tex. App. Waco 2000, pet. ref d). Accordingly, we overrule Caraway s sixth issue. We affirm the judgment. FELIPE REYNA

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Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed November 9, 2005 Do not publish [CR25]

[1] Caraway characterizes the evidence of bleeding by saying, Very little blood was found in the car, and on [Pasano]. Because of the evidence we have cited, we disagree with this characterization. [2] Some of the eleven incidences of contrary and contradictory evidence listed by Caraway would seem to have little bearing on the factual sufficiency of the evidence.

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