Pratt, Richard Lynn v. State ( 2002 )

Affirmed and Opinion filed August 22, 2002

Affirmed and Opinion filed August 22, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00781-CR

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RICHARD LYNN PRATT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 361st District Court

Brazos County, Texas

Trial Court Cause No. 28,078-361

O P I N I O N

A jury convicted appellant Richard Lynn Pratt of aggravated assault for causing serious bodily injury to his wife.  The trial court assessed punishment at ten years in prison, but suspended the sentence subject to probation, ordering appellant to serve 90 days in Brazos County Jail as a condition of probation.  We affirm.

I.          Background Facts

On the evening of July 9, 2000, at their home on his wife=s family ranch, appellant was drinking beer in the yard with his wife and Bubba, a family acquaintance.  Appellant left them and went to bed in the house.  Very early the next morning, he awoke to find that his wife and Bubba were no longer outside and that his Jeep was gone.  He drove another vehicle to a deer camp and barn at the back of the ranch and found them.  He drove his wife back to the house.  At this point the testimony diverges.  He contends she injured herself when she fell because she was drunk.  She testified that he beat her.  Appellant drove her to the hospital.  Her injuries included several facial lacerations that required stitches, a broken nose, bruises and a jaw broken in three places.  She told the medical staff her husband had beaten her.

II.        Issues Presented

On appeal, appellant argues that (1) the trial court erred in denying appellant=s motion for instructed verdict because there was insufficient evidence to support the conviction; (2) he was denied effective assistance of counsel; and (3) several of the trial court=s comments and rulings constituted an impermissible comment on the weight of the evidence.

A.        Sufficiency of the Evidence

In his first issue, appellant challenges the legal and factual sufficiency of the evidence. Appellant was charged with causing serious bodily injury to his wife by hitting her with his hands and fists, kicking her, and pushing her against the wall. Because his wife was not certain whether she had been hit or if she had been kicked, he claims the trial court should have entered an instructed verdict in his favor.  Consequently, he claims the evidence is insufficient to convict him.  Specifically, he contends his wife=s injuries were not caused by him, but by an accidental fall while she was drunk.

To prove appellant committed aggravated assault, the State had to prove he intentionally, knowingly, or recklessly caused severe bodily injury.  Tex. Pen. Code Ann. '' 22.01(a)(1) & 22.02 (Vernon 1994).  The elements of aggravated assault are:

(1)       a person

(2)       commits an assault

(3)       that causes serious bodily injury. 

Tex. Penal Code Ann. ' 22.02(a)(1) (Vernon 1994); Juneau v. State, 49 S.W.3d 387, 391 (Tex. App.CFort Worth 2000, pet. ref=d). “Serious bodily injury” is defined as an injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.  Tex. Pen. Code Ann. ' 1.07 (a)(46) (Vernon 1994).  To be considered a serious bodily injury, the injury “must be grave, not trivial”; that is, it must be “such an injury as gives rise to apprehension of danger to life, health or limb.”  Hatfield v. State, 377 S.W.2d 647, 648 (Tex. Crim. App. 1964).

Standard of Review: Legal Sufficiency of the Evidence

In reviewing the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the judgment.  Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994).  This standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The Evidence

            The indictment alleged appellant “heretofore on or about the 10th day of July 2000, did then and there intentionally, knowingly, and recklessly cause serious bodily injury to Tracy Pratt, by striking her with his hand and by kicking her and by throwing her to the ground and by shoving her head into the wall . . . .”  (emphasis added). 

The jury was charged as follows:

[I]f you find from the evidence beyond a reasonable doubt that on or about the 10th day of July, 2000 in Brazos County, Texas, the Defendant, RICHARD LYNN PRATT, did intentionally, knowingly or recklessly cause serious bodily injury to Tracy Pratt by striking her with his hand; or by kicking her; or by throwing her to the ground; or by shoving her head into the wall, then you will find the Defendant guilty as charged. 

(emphasis ours).  

Appellant complains that his instructed verdict should have been granted because there was a variance between the State=s proof and the crime charged.  Specifically, he argues that because the State did not prove appellant struck his wife with his hand, and kicked her, and threw her to the ground, and shoved her head in the wall, the evidence is legally insufficient to support a conviction.  We disagree.

Discussion

Although an indictment may allege different methods of committing an offense in the conjunctive, it is proper for the jury to be charged in the disjunctive.  See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).  The State may plead alternative theories of an offense that the evidence may ultimately prove.  Lawton v. State, 913 S.W.2d 542, 551 (Tex. Crim. App. 1995). The State is allowed to plead in the conjunctive if proof of any one theory of the offense will support a guilty verdict.  Id. And, when the State pleads in the alternative, it is not required to prove guilt under all of the theories alleged. If the State establishes proof of guilt under one theory, the conviction will stand against a challenge to the sufficiency of the evidence.  Id.; see also Brooks v. State, 990 S.W.2d 278, 283 (Tex. Crim. App. 1999) (en banc) (“When a jury returns a general guilty verdict on an indictment charging alternative theories of the same offense, the verdict stands if the evidence supports any of the theories charged.”).

            Appellant=s wife testified that he hit her in the face with his fist while driving back to their house from the deer camp.  After parking in the garage, he pulled her out of the car and threw her to the ground while repeatedly striking her in the face with either his foot or his fist.  Although she tried to get up six or seven times, he continued to hit or kick her, and she could not get up.  He then threw her against some concrete steps leading to the house.  Then, after a period of unconsciousness, she found herself covered in blood and sitting on the dining room floor under a large hole in the wall that was also covered in blood.  During the entire assault, appellant cursed at her, verbally abused her, and accused her of infidelity.

The beating stopped when the children discovered appellant=s wife on the dining room floor.  Shortly thereafter, she walked to the car, and appellant drove her to the hospital. While en route to the hospital, appellant continued to verbally abuse his wife.  Once there, she walked into the emergency room without assistance. During her stay at the hospital, appellant=s wife was treated for a broken nose and received stitches on her face.  The injuries to her jaw required that it be wired shut for four weeks, and by the time of trial, she had not regained the normal use of her jaw. 

The emergency room physician who treated appellant=s wife testified that her injuries were consistent with being hit or kicked and inconsistent with a single fall on a step.  Likewise, the emergency room nurse testified that the injuries suggested more than one point of impact.  Appellant=s expert witness, also an emergency room physician, testified that it would take some velocity for a person to make a hole that size in the wall and it could not have been made by a fall.  Officer Couch, who saw appellant at the hospital, noticed that his hands were covered in dried blood and that there was blood on his feet and shins.  Deputy Brawley, who also observed appellant at the hospital, testified that he had blood on his moccasins and that the back of his right hand was swollen with a fresh red mark.

Discussion and Holding:  Legal Sufficiency of the Evidence

“The jury, being the judges of the facts and the credibility of the witnesses, can choose to believe or not believe witnesses or any portion of their testimony.”  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  Viewing the evidence in the light most favorable to the verdict, we conclude that the cumulative force of all the facts and circumstances was sufficient to allow a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.  We overrule appellant=s legal sufficiency challenge, and proceed to appellant=s factual sufficiency claim.

Standard of Review: Factual Sufficiency of the Evidence

When reviewing the factual sufficiency of the evidence, we view all the evidence without the prism of “in the light most favorable to the prosecution” and set aside the verdict only if it is “so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust.”  See Johnson v. State, 23 S.W.3d 1, 6‑7 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).  Under this standard, the “evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence.” Id. at 11.  When conducting a factual sufficiency review, we compare the evidence that tends to prove the existence of a fact with the evidence that tends to disprove that fact. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  We consider the fact finder=s weighing of evidence and can disagree with the fact finder=s determination. See Clewis, 922 S.W.2d at 133.  But, we must employ the appropriate deference so that our evaluation does not intrude upon the jury=s role as the sole judge of the weight and credibility of any witness=s testimony.  See Jones, 944 S.W.2d at 648; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

Discussion and Holding: Factual Sufficiency of the Evidence

Appellant argues that the evidence against him is factually insufficient because his wife testified as follows: “I=m not sure if he hit me with his foot or his hands.  Something hit me upside the face.”  Similarly, appellant contends that on cross‑examination, his wife acknowledged that she did not see a fist or foot hit her.  However, given the other evidence in the record, appellant=s reliance on this testimony is misplaced.

Additionally, appellant testified his wife injured herself by falling on the concrete steps, and he denied striking her at all.  However, these claims do not make the evidence against him factually insufficient. See Johnson, 23 S.W.3d at 11.  Evidence is not rendered insufficient simply because an accused presents a different version of the facts.  State v. Hart, 905 S.W.2d 690, 693 (Tex. App.CHouston [14th Dist.] 1995, pet. ref=d).

By its verdict, the jury chose to believe the State=s testimony and rejected appellant=s version of how his wife received her injuries.  There was an overwhelming amount of evidence to comport with his wife=s version of events.  And, appellant admitted to striking his wife on a prior occasion.  The State developed jealousy as a motive for the assault as well. See Martin v. State, 91 Tex. Crim. 23, 236 S.W. 729, 730 (1921) (stating that jealousy is uniformly regarded as admissible upon the issue of motive).  In short, we conclude that the evidence is factually sufficient to support the jury=s verdict and not so weak as to be clearly wrong and manifestly unjust.  See Johnson, 23 S.W.3d at 6B7; Clewis, 922 S.W.2d at 129.  

In summary, we find the evidence is legally and factually sufficient to support the jury=s finding that appellant committed aggravated assault causing serious bodily injury.  We overrule appellant=s first issue. 

B.        Ineffective Assistance of Counsel

In appellant=s second issue, he complains he was denied effective assistance of counsel.  Appellant contends trial counsel failed to be effective in two ways: (1) by not requesting a record of voir dire examinations, and (2) by not pursuing several objections to an adverse ruling. 

Discussion: Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, an appellant must first demonstrate that trial counsel=s performance was deficient.  Strickland v. Washington, 466 U.S. 668, 687 (1984) (adopted in Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986)).  Second, he must also show his counsel=s deficient performance was so serious that it prejudiced his defense, rendering the trial unfair and the verdict suspect.  Id.  To satisfy the second prong, appellant must show that a reasonable probability exists that, but for counsel=s unprofessional errors, the fact finder would have had a reasonable doubt concerning guilt.  See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).  Reasonable probability means a probability sufficient to undermine confidence in the outcome.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).  Appellant has the burden of making this showing by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson, 973 S.W.2d at 956.

In other words, appellant must show (1) by a preponderance of the evidence that trial counsel=s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) that this deficient performance rendered the result of the proceeding unreliable.  See Strickland, 466 U.S. at 687.  Both prongs of the Strickland test must be satisfied, or the claim of ineffective assistance will fail.  Id. at 697.

Effective assistance of counsel “does not mean errorless counsel, nor does it mean counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.”  Faerman v. State, 966 S.W.2d 843, 846 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  When the record is silent, an appellate court may not speculate about why counsel acted as he did.  Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000) (holding that “without some explanation as to why counsel acted as he did, we presume that his actions were the product of an overall strategic design”); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc).  Without testimony from trial counsel, we must presume counsel had a plausible reason for her actions.  See Tong, 25 S.W.3d at 714.  We now address appellant=s specific complaints of ineffective assistance of counsel.

1)        Failure to request a record of voir dire

Appellant contends that trial counsel was ineffective by failing to request the recordation of voir dire.  Appellant alleges that this failure prevented preservation of possible error, but he alleges no specific harm.  Without showing harm, the failure to request recordation of voir dire is not per se ineffective assistance of counsel.  Rivera v. State, 981 S.W.2d 336, 339 (Tex. App.CHouston [14th Dist.] 1998, no pet.) (holding that it is not enough for an appellant to claim his lawyer was ineffective because he failed to request a court reporter).  Some specific injury resulting from the failure to request a transcription of the proceeding must be raised by the defendant on appeal.  Id.  Here, appellant has not pointed to any specific harm, nor has he demonstrated that he was prejudiced to the extent there was a reasonable probability of a different result.  See Smith v. State, 751 S.W.2d 902, 908 (Tex. App.CHouston [14th Dist.] 1988, no pet.).  And, since the record is silent on the issue of harm, we overrule this complaint.  See Tong, 25 S.W.3d at 714.

2)        Failure to pursue objections to adverse rulings

Appellant claims his trial counsel was ineffective because, after the trial court sustained several objections, counsel failed to preserve the alleged errors for review by moving the court to an adverse ruling.  That is, after the court sustained her objections, counsel did not ask for the jury to be instructed to disregard the question, nor did she ask for a mistrial. Thus, he complains the jury heard and was able to consider evidence that should have not come before it.  Yet, appellant fails to cite us to any location in the record in support of this complaint.  Nor does he cite any legal authority showing that failure to ask for an instruction constitutes error. 

Our appellate rules provide that a “brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”  Tex. R. App. P. 38.1(h).  Conclusory arguments that cite no authority present nothing for review.  Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992); Atkins v. State, 919 S.W.2d 770, 774‑75 (Tex. App.CHouston [14th Dist.] 1996, no pet.).  Appellant did not offer argument or analysis to support his contention, nor did he apply the facts of his case to the rule of appellate procedure.  See Wyatt v. State, 23 S.W.3d 18, 25 n.7 (Tex. Crim. App. 2000); King v. State, 17 S.W.3d 7, 23 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); Tex. R. App. P. 33.1.  Therefore, we find that he has waived this basis for review of ineffective assistance of counsel.

Moreover, appellant made no effort to prove the prejudice prong under either basis asserted for ineffective assistance of counsel.  Both prongs of the Strickland test must be satisfied, or the claim of ineffective assistance will fail.  Strickland, 466 U.S. at 697.

In summary, there has been no showing that the failure to have a record of voir dire resulted in harm.  Rivera, 981 S.W.2d at 339. Furthermore, appellant has waived any prejudice because he has failed to cite to the record and present argument and authorities in arguing that counsel=s failure to move the court to adverse rulings constitutes ineffective assistance of counsel.  Tex. R. App. P. 33.1.

Holding: Ineffective Assistance of Counsel

Therefore, appellant has not proved there is a reasonable probability that, but for defense counsel=s unprofessional errors, the result of the proceeding might have been different. See McFarland v. State, 928 S.W.2d at 500.  We overrule appellant=s second issue.

C.        Trial Court Rulings as Comments on the Evidence

In appellant's third issue, he complains the trial court made comments and rulings during the trial that amounted to comments on the weight of the evidence.  Appellant cites to three instances in the record in which he believes the judge conveyed a belief that appellant was guilty: (1) when the judge ruled on an objection, stating, “No, there hasn=t been that exact testimony, but I don=t think that the objection is sustainable”; (2) during appellant=s testimony about his residence, when the judge stated, as he was ruling on an objection, “I believe the jury has had enough evidence on which to base a decision on that point”; and (3) by denying appellant=s request for a recess while he was on the stand and saying, “We=re not going to take any more recesses until it=s time.  You may have a seat.  Please continue.”  Appellant argues that the cumulative effect of these statements violated article 38.05 of the Code of Criminal Procedure, amounted to comments on the weight of the evidence, and aided the State in gaining a conviction.

Discussion and Holding

Article 38.05 of the Texas Code of Criminal Procedure prohibits the trial court from discussing or commenting on the weight of the evidence.  Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979).  Based upon article 38.05=s requirements, we acknowledge a defendant=s right to a trial free from comments on the evidence by the trial court. Without deciding whether the statements complained of constitute impermissible comments on the weight of the evidence, we find appellant has waived these complaints because he did not object to any of the statements below.  See Harvard v. State, 800 S.W.2d 195, 211 (Tex. Crim. App. 1989); see also Gibbs v. State, 7 S.W.3d 175, 178 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (concluding that failing to object to trial court=s alleged comment on the evidence waived error); Tex. R. App. P. 33.1 (providing that a specific and timely trial objection is a prerequisite to a corresponding complaint on appeal).  Indeed, to preserve an issue for appeal, the trial court must have been given the opportunity to rule on the same complaint below, and appellant=s failure to object at trial constituted a waiver of these complaints. See Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995) (finding that appellate complaint that judge impermissibly commented on the weight of the evidence was not preserved for review because no objection was lodged in the trial court).  Accordingly, we overrule appellant=s third issue.

III.       Conclusion

We affirm the judgment of the trial court.

/s/        Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed August 22, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

Do Not Publish C Tex. R. App. P. 47.3(b).