MICKEY FRANK PRYOR, Appellant v. THE STATE OF TEXAS, Appellee

SUPREME COURT CASES

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State: Texas

Court: Texas Northern District Court

Docket No: 05-08-01189-CR

Case Date: 12/15/2009

Plaintiff: MICKEY FRANK PRYOR, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:MICKEY FRANK PRYOR, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued December 15, 2009

In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-08-01189-CR ............................ MICKEY FRANK PRYOR, Appellant V. THE STATE OF TEXAS, Appellee ............................................................. On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F08-00815-X ............................................................. OPINION Before Justices Morris, FitzGerald, and Lang-Miers Opinion By Justice Morris At trial, Mickey Frank Pryor waived his right to a jury and pleaded not guilty before the trial court to charges of aggravated assault. The trial court convicted appellant and sentenced him to fifty years' confinement. Appellant now complains that the evidence against him is legally and factually insufficient, he received ineffective assistance of counsel, and the trial court abused its discretion in denying his motion for new trial. We affirm the trial court's judgment. Factual Background The charges in this case arise from an altercation between appellant and the complainant. Approximately one to two weeks before the fight, appellant met the young female complainant through a friend. The complainant's mother had thrown her out due to the complainant's use of crack cocaine. Appellant agreed to let the complainant live with him in exchange for the complainant cleaning his house. Both the complainant and appellant testified that they did not have an intimate relationship. According to the complainant, at approximately eight o'clock one morning, appellant walked into her bedroom after he had been drinking all night. He attempted to undress and sexually assault her. The complainant reacted with force, striking appellant on his face and body. At some point in the struggle, appellant grabbed an elastic cord and began choking the complainant with it. The complainant tried to call 911, but appellant pulled the phone cord out of the wall. After being choked for a time and dragged into a hallway, the complainant claimed she succumbed to appellant and he began licking her vagina. Appellant left the complainant when police arrived at the door. The complainant testified that her recollection of the order of events that morning was not particularly clear. She stated that she remembered calling 911 two times. Police dispatch records and a recording of the 911 calls were consistent with her recollection of events. Appellant contested the complainant's version of events. He claimed the altercation began when he found the complainant smoking crack in his house, which she had promised she would not do. According to appellant, when he tried to take a crack pipe away from the complainant, she viciously attacked him and he used his hands only to protect himself from her blows. He claimed that even though he eventually got the crack pipe away from the complainant, she attacked him so furiously that he threw the pipe onto the complainant's bed and told her to keep it. Appellant asserted that he never choked the complainant or used an elastic band around her neck. He surmised
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that the ligature marks on the complainant's skin must have been self-inflicted. Appellant further contended that he did not attempt to have sexual relations with the complainant. He claimed he never saw her call 911, but he admitted to putting on a pair of her jeans when he heard police at the door. According to appellant, he was in the bathroom wearing only boxer shorts and nursing his injuries caused by the complainant when he heard the police knocking. He admitted he had been drinking all night before the fracas, but he claimed that he was not drunk at the time he found the crack pipe and that he was not a "mean drunk." Appellant testified that after his arrest his television, all his tools, his lawn mower, his stereo, his clock, and his truck were all taken from the house. The complainant admitted that after appellant was arrested she stayed at his house until appellant's brother arrived and told her to leave. She conceded that when she did leave, she stole appellant's television. She also confessed to using crack cocaine at appellant's house on more than one occasion but denied using crack before her fight with appellant. A police officer who reported to the scene testified that appellant appeared to be in a drunken stupor. He had blood and scratches and swelling on his face. There were also scratch marks on his body that appeared to be made by a person's fingernails. The wounds looked like they had been inflicted in a defensive manner and did not appear to be life threatening. Appellant was shirtless and wearing jeans that were obviously too small for him. The complainant appeared to be "scared and bothered" but not intoxicated. One of her eyes was bruised and it appeared that someone had choked her. The officer found an elastic band for exercise in the complainant's bedroom. Photographs of the bedroom, which were admitted into evidence, showed that the telephone cord had been pulled out of the wall. On his way to jail, appellant told the officer that he had not raped the complainant and that it was just a boyfriend-girlfriend argument "that went bad." At the time of the offense, appellant was on parole and a registered sex offender. The trial judge made the following comments to appellant before sentencing him: Mr. Pryor, having heard the evidence in punishment, as well as all of the evidence in trial last week, I will just let you know I didn't believe hardly anything you said. Your testimony did not match up with photographs. Your history doesn't help. And, you know, I guess you forgot about the phone. There is a picture of a phone being pulled from the wall. You heard the recording of her calling 911 and it hanging up in the middle of it. Your scratches and things here appear to be defensive wounds, consistent with the complainant's testimony. And your past record concerns me. Discussion In his first two issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. He argues that the complainant's version of the altercation is not credible and the evidence shows he acted in self-defense. In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). In a factual sufficiency review, we consider all the evidence to determine whether it is so weak that the fact finder's verdict seems clearly wrong and manifestly unjust or whether, considering conflicting evidence, the verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and manifestly unjust verdict shocks the conscience or clearly demonstrates bias. See id. In a factual sufficiency review, we may substitute our judgment for the fact finder's on the issues of the weight and credibility to be given to witness testimony only to a very limited degree. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Here, the trial court had ample opportunity to assess the credibility of both the complainant and appellant. Although each engaged in questionable behavior, in the end, the court concluded that the complainant had not lied when she claimed appellant assaulted her with a deadly weapon. Moreover, appellant expressly denied choking or strangling the complainant, so the court could not find appellant had acted in self-defense. See Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007). Having reviewed the entire record, we conclude the evidence is legally and factually sufficient to support appellant's conviction for aggravated assault. We resolve appellant's first two issues against him. In his third and fourth issues, appellant complains he received ineffective assistance of counsel at trial. He first contends counsel was ineffective because he failed to offer the record of his previous parole revocation hearing into evidence. Appellant next contends counsel was ineffective for failing to call his brother as a witness for the defense. In his fifth issue, he argues the trial court abused its discretion in denying his motion for new trial, based on his
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allegations of ineffective assistance. We review a trial court's ruling on a motion for new trial alleging ineffective assistance of counsel under an abuse of discretion standard. See Sanchez v. State, 243 S.W.3d 57, 63 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). We must therefore decide whether the trial court's resolution of the ineffective assistance claim and the denial of the motion for new trial were clearly wrong and outside the zone of reasonable disagreement. See id. It was appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. Before trial, the State had attempted to revoke appellant's parole based on the aggravated sexual assault alleged by the complainant. The parole revocation hearing report, which was admitted into evidence at the hearing on appellant's motion for new trial, showed that the hearing officer concluded appellant had violated the rules of his parole by committing aggravated sexual assault against the complainant but nevertheless recommended continuing his parole "pending adjudication" of the criminal offense against the complainant. The record does not reveal why appellant was charged with aggravated assault, rather than aggravated sexual assault, in this case. Appellant's trial attorney testified at the hearing on his motion for new trial that he had reviewed the relevant portions of appellant's parole revocation hearing before appellant's trial. He believed he did not need to rely on the parole revocation evidence in this case because the complainant was even less credible at appellant's trial than she was at the parole revocation hearing. Counsel also stated that he knew appellant's brother was available to testify that he did not see any injuries on the complainant when he got to appellant's house after the arrest and that it appeared the complainant had stolen many of appellant's belongings when she left the house. Counsel explained that he chose not to offer the brother's testimony because he believed the photographs of the complainant were better evidence of her appearance at the time of appellant's arrest and because he felt the complainant's contradictory testimony and the police report in the case established the fact that the complainant had taken appellant's property after the alleged offense. Appellant's brother also testified at the hearing. He explained that when he saw the complainant after appellant's arrest her eyes were red. He said "it was not all that light in there" and he did not see any marks on the complainant, but he was not looking for any. He noted that he told the complainant she needed to leave the house. When he returned to the house, "the pickup and most everything around there that wasn't nailed down was gone." When asked whether his investigation and preparation of appellant's defense constituted reasonably effective assistance, counsel testified, . . . I would not do anything any differently at all. The defense we presented was that, not what you-all were alleging, but that the complainant witness was, in fact, the first aggressor, and the reason it all happened was he took her crack pipe away from her. So she attacked him and he defended himself, and then she choked herself with this ligature. At the conclusion of the hearing, the trial judge commented, "Well, the Court will just state on the record that I do recall the evidence and finding the complainant to be a credible witness in the Court's opinion." The motion for new trial was overruled by operation of law. As the fact finder in appellant's case, the trial court was uniquely qualified to determine whether additional evidence about the complainant's credibility and her possible actions after appellant's arrest would have affected the outcome of appellant's trial. The complainant admitted she stole appellant's television, and appellant testified about the many other items that were missing from the house after her departure. Appellant's brother would have been suspected of bias had he testified. And he admitted at the motion for new trial hearing that he had not gotten a good look at the complainant after appellant was taken to jail. In addition, appellant fails to point to any specific, unique testimony from the parole revocation hearing showing that the complainant was an unreliable witness. Although it is true the hearing officer recommended that appellant's parole be continued pending the outcome of criminal charges in the case, it is equally true that the officer determined appellant had violated his parole by sexually assaulting the complainant. We conclude appellant has failed to meet his burden of proving ineffective assistance of counsel. We further conclude the trial court did not abuse its discretion in denying appellant's motion for new trial. We resolve appellant's third, fourth, and fifth issues against him. We affirm the trial court's judgment.

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JOSEPH B. MORRIS JUSTICE Do Not Publish Tex. R. App. P. 47 081189F.U05

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