Robert Edward Kennedy v. State ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00376-CR

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Robert Edward Kennedy, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF BEXAR COUNTY, 186TH JUDICIAL DISTRICT NO. 97-CR-2670-B, HONORABLE SAM KATZ, JUDGE PRESIDING

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A jury convicted Robert Edward Kennedy of robbery and thereby implicitly acquitted him of aggravated robbery. The jury assessed punishment at eight years in prison. By three points of error, Kennedy contends that his trial counsel was ineffective for failing to keep prior written statements suppressed, that the court reporter failed to transcribe the text of an audiotape and the audio portion of a videotape, and that the district court erred by ignoring a stipulation of inadmissibility and admitting a videotape. We will affirm the judgment.

BACKGROUND

Following is a summary of the testimony from Borg Hansen, the complainant. We will note parenthetically where Kennedy's written statements diverge significantly or add details unknown or unexplained by Hansen.

Hansen testified that he met and conversed with Jessica Longoria and her boyfriend, Charles Cameron, at a car wash in San Antonio. They discussed Hansen's part-time work as a clown and he gave her his business card. Hansen also had the impression that Longoria was interested in him personally, though not necessarily sexually, so he invited her to call him whenever she wanted. (Kennedy said that Longoria said Hansen offered her $75 to sleep with him, so she decided to teach him that older men should not hit on young women; Hansen was in his mid-sixties and Longoria, who told Hansen she was nineteen, was seventeen.)

Soon thereafter, Longoria called Hansen and arranged that she and her friend Carla would meet him at a restaurant. The women told him they were lovers, and offered to have sex with him for $105. Hansen drove the women to his house. The girls toured the home while Hansen mixed them drinks; he saw only Longoria take a drink. They all went to the master bedroom where Hansen, with the women's consent, played a pornographic videotape on the television. Hansen said he never touched the women. (Kennedy said Longoria said Hansen tried to put his hands inside her clothes.) Shortly thereafter, though, the women left the bedroom and started ransacking the house. One ran out of the house and looked at the address. Regretting his invitation, Hansen asked the women to get into his van so he could return them to the restaurant. As he drove, they offered to go to a hotel with him, but he declined. They asked him for money, but he declined. As they got out, they told him they would blackmail him, tell his wife (who was at work), and come back to get him.

About an hour and a half later, the women came back to Hansen's house with Cameron. Hansen was working in his garage when they arrived. Longoria said she had left her cigarette lighter, so Hansen went into the house to look for it. Cameron followed him with a knife. Hansen tried to take the knife away, but Cameron hit him in the face and body and knocked him down.

Hansen said he feared for his life because Longoria was "mean to him," hit him, wanted to tape him up and was holding a knife. He begged them not to kill him and offered them his wallet. They took sixty dollars in cash and his credit cards. He tried to escape through the front door, but Cameron caught him and stabbed him superficially in his back.

Hansen asked to go to the kitchen to get a towel to control his bleeding; he was bleeding profusely because he takes a blood thinner. At some point, Hansen saw Kennedy taking whiskey bottles from the bar in his house and saw an unfamiliar car in the garage.

Eventually, they all went upstairs. Longoria started taking Hansen's wife's jewelry and Kennedy picked up the television. Cameron made Hansen go into his closet. Hansen found his loaded revolver under some clothes and turned on the intruders. Cameron and Longoria still had knives in their hands and approached him, Longoria first. He told them to drop the knives, but they did not. Longoria continued to approach without talking and with her knife pointed at him, so he shot her. Cameron then dropped his knife.

Hansen ordered Kennedy to drop the television and told them all to leave his house. They complied. Cameron carried Longoria, who was still alive at that time, to the car. Kennedy drove the car away. When they left, Hansen called 911. (Kennedy dropped the others off at a Texaco station so they could seek help for Longoria and so Kennedy could get rid of the stolen items. Longoria died.) Police found Longoria's body in the Texaco station parking lot; they videotaped and photographed her in that setting.

DISCUSSION

By his first point of error Kennedy contends that his counsel provided ineffective assistance because he failed to object to the introduction of statements he gave to police that the district court had ruled inadmissible before the trial. We first examine whether counsel's conduct failed to meet an objective standard for reasonable performance and whether that failure deprived the appellant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88; Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). We look at the totality of the representation. Ex parte Carillo, 687 S.W.2d 320, 324 (Tex. Crim. App. 1985); Mayhue v. State, 969 S.W.2d 503, 510 (Tex. App.--Austin 1998, no pet.). There is a strong presumption that counsel provided adequate assistance and made all the significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. Counsel is allowed wide latitude within reasonable professional standards to make tactical decisions. Id. We generally will not speculate as to trial strategy. Mayhue, 969 S.W.2d at 511. The representation need not be free of error. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Though numerous instances of failing to object to harmful inadmissible evidence could show ineffective assistance, an isolated failure does not necessarily render counsel ineffective. See Weathersby v. State, 627 S.W.2d 729, 730 (Tex. Crim. App. 1982). Finally, the client must show a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Mayhue, 969 S.W.2d at 511.

Proving counsel was ineffective is particularly difficult without an evidentiary hearing dedicated to the issue of counsel's effectiveness. "In most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim." Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); see also Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). In Oldham, the court held that, where the alleged derelictions primarily are errors of omission rather than commission, collateral attack may be needed for a thorough examination of the alleged ineffectiveness. Oldham, 977 S.W.2d at 363 (quoting Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980)).

Kennedy filed a motion to suppress the admission of two written statements he gave to police. He contended that the statements were taken without his counsel's presence despite his invocation of the right of counsel and the presence of counsel in the police station. A few days after a hearing on the motion to suppress, the district court signed an order suppressing both statements.

The State nevertheless offered both statements at trial. When the State offered the statements during trial, Kennedy's attorney affirmatively stated that he had no objection to the admission of the statements. Hearing no objection, the district court admitted the statements. Kennedy's attorney then cross-examined the interrogating officer, apparently seeking to show the jury that the statements were not given voluntarily.

Even assuming, without deciding, that Kennedy's counsel was ineffective for not trying to enforce the previous suppression order, we conclude that Kennedy has not satisfied the Strickland test because there is no reasonable probability that the result of the trial would have been different without the statements. The district court charged the jury as follows:

Our law provides that a person commits the offense of robbery if, in the course of committing theft, as that term is hereinafter defined, and with intent to obtain or maintain control of property of another, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

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"Theft" as used herein is the unlawful appropriation of the corporeal personal property of another, with the intent to deprive such person of said property.

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Mere presence alone will not make a person a party to an offense. A person is criminally responsible for an offense committed by the conduct of others if acting with intent to promote or assist the commission of the offense he solicits, encourages, directs, aids, or attempts to aid the other person or persons to commit the offense.

Even without Kennedy's statements, the jury had sufficient evidence before it to convict. Hansen testified that the two men and women removed Hansen's belongings without his consent and while putting him in fear for his life. Hansen also testified that Kennedy entered Hansen's house after the other three robbers; that Kennedy did not speak to him, threaten him, or wield a weapon; that Kennedy removed items, including liquor, from his home; and that Kennedy drove the getaway car. Further, the jury had the testimony of the investigating officers who found the getaway car and arrested a distressed Kennedy after he admitted he had recently been out with a man and two women, one of whom had been shot. The jury also had the testimony of the officers who saw Hansen's wounds and his ransacked home. Finally, the jury heard the testimony of the police officer who found Cameron's wallet and Hansen's property inside Kennedy's car. The jury also saw pictures of Kennedy's car and property, including a camera with Hansen's name and address on it, power tools, and liquor.

Kennedy's disputed statements did not add enough to affect the result. He confirmed much of Hansen's testimony regarding the women's second visit and added details regarding the activities and stated motivations of the foursome apart from what happened at Hansen's house. Kennedy's statements differ in some details from Hansen's testimony--e.g., Kennedy said that Longoria had her hands extended to the side as she approached Hansen. Kennedy's statement also contains the additional information that he provided the knives Longoria and Cameron used. As discussed above, however, the trial testimony of Hansen and the investigating officers, together with the items from Hansen's house in Kennedy's trunk, provided more than sufficient evidence to convict Kennedy. We find no reasonable probability that the admission of Kennedy's statements changed the result of the trial. We overrule point one.

By point of error three, Kennedy contends that the district court abused its discretion in changing a previous ruling and admitting highly prejudicial evidence that the prosecutor and defense counsel had previously stipulated was inadmissible. The disputed evidence was a videotape of Hansen's house and the Texaco station parking lot. Kennedy's counsel asserted and the prosecutor did not deny that they had an agreement to play part of the videotape, but stop it at a point at which the parties agreed it became prejudicial and had little additional probative value. The State nevertheless at trial asked to play the entire videotape. The district court, noting that it had suppressed part of the videotape at Cameron's trial, opined that intervening experience and education convinced him to reevaluate and admit the entire videotape in Kennedy's trial. Kennedy complains that the State's offer violated the agreement not to play the prejudicial parts of the tape, that the district court gave no adequate reason for not excluding the tape as he had in the Cameron trial, and that admitting the entire tape was an abuse of discretion because the risk of unfair prejudice and confusion substantially outweighed the probative value of the tape.

We find no merit in Kennedy's charge that the district court abused his discretion in "changing a previous ruling." Kennedy is referring to a ruling in Cameron's separate trial. Though the district court was not required to explain the basis of his evidentiary rulings, he explained that his understanding of the balancing test had changed with more experience and education. We find no authority for the proposition that a trial court's evidentiary ruling in a trial binds the court to exercise its discretion in the same manner in a subsequent trial. We find no abuse of discretion in the act of exercising discretion differently than before.

Nor do we find reversible error in the court's decision not to enforce the alleged agreement between the State and Kennedy. The only clue the record offers as to the terms of the agreement is this statement by Kennedy's counsel:

First off, judge, I was told yesterday afternoon, we had a stipulation. This takes me by surprise. The stipulation was this jury would be would [sic] shown what the previous jury was shown, which would cut it off when it becomes prejudicial. I would urge the Court, they have -- They have the means and ability to show more photographs of the dead girl.

This video, the purpose of going past the stipulated or the portion of tape that goes to evidence gathering is, the sole purpose or its relevance is outweighed by prejudicial value. We ask the Court to cut the tape off where we previously talked about.

There is nothing in the record or the briefs to indicate where the tape was cut off in the previous trial or where the parties agreed it became prejudicial; we therefore cannot adequately determine the effect of any violation of the alleged agreement because we do not know the terms of the agreement. Kennedy's counsel's comments indicate that the portions he considers prejudicial are those that show Longoria's body. Any aspect of the videotape that showed Longoria's body would not be prejudicial to Kennedy, because there is absolutely no indication in the record that he had any role in her death. If anything, it might reduce sympathy for Hansen by emphasizing the death he caused. We find no abuse of discretion in or harm from the district court's decision to admit the full videotape. We overrule point of error three.

By point of error two, Kennedy contends that the court reporter failed to follow the requirement for transcription of audio or video exhibits played in court. The Uniform Format Manual for Texas Court Reporters, paragraph 16.16, directs court reporters to transcribe the text of audio and video recordings unless the trial court orders that no recording shall be made because such recording is not feasible. Contending that the tape of Hansen's 911 call was difficult to understand, defense counsel requested that either the tape be transcribed or the court admit a transcription of the call from Cameron's trial. The court denied the request, finding the audiotape was the best evidence of its own contents. Kennedy's attorney apparently did not specifically request that the court reporter transcribe the audio portion of the videotape.

The court reporter's failure to transcribe the audio portions of the tapes does not require reversal. The tapes were played to the jury and admitted into evidence. There is no indication that the court reporter had any special equipment or ability to understand the tapes superior to the jurors or us. We find beyond a reasonable doubt that the absence of a transcription of the tapes did not impinge on a substantial right or contribute to Kennedy's conviction or punishment. ⁽¹⁾ We find no reversible error.

Kennedy argues (though not in the text of point of error two) that his trial counsel was ineffective for not requesting that the court reporter transcribe the audiotape of the 911 call and the audio portion of the videotape. Even assuming without deciding that counsel's failure to request the transcription was ineffective, we find no reversible error. We fail to see how the presence of the transcription within the court reporter's record would have resulted in a different verdict when the videotape and the 911 tape were themselves played to the jury and admitted into evidence. We have no reason to believe that any clarification of Hansen's statements to the 911 operator or the police officer's narration of the videotape would have altered the balance of the evidence and changed the result of the trial. We overrule point two.

CONCLUSION

Having overruled Kennedy's points of error, we affirm the judgment.

Lee Yeakel, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: April 20, 2000

Do Not Publish

1. We are not faced with and expressly do not consider the situation in which tapes are played for the jury, are not admitted into evidence, and are not transcribed either as an exhibit or as part of the reporter's record.

ty to show more photographs of the dead girl.

This video, the purpose of going past the stipulated or the portion of tape that goes to evidence gathering is, the sole purpose or its relevance is outweighed by prejudicial value. We ask the Court to cut the tape off where we previously talked about.

There is nothing in the record or the briefs to indicate where the tape was cut off in the previous trial or where the parties agreed it became prejudicial; we therefore cannot adequately determine the effect of any violation of the alleged agreement because we do not know the terms of the agreement. Kennedy's counsel's comments indicate that the portions he considers prejudicial are those that show Longoria's body. Any aspect of the videotape that showed Longoria's body would not be prejudicial to Kennedy, because there is absolutely no indication in the record that he had any role in her death. If anything, it might reduce sympathy for Hansen by emphasizing the death he caused. We find no abuse of discretion in or harm from the district court's decision to admit the full videotape. We overrule point of error three.

By point of error two, Kennedy contends that the court reporter failed to follow the requirement for transcription of audio or video exhibits played in court. The Uniform Format Manual for Texas Court Reporters, paragraph 16.16, directs court reporters to transcribe the text of audio and video recordings unless the trial court orders that no recording shall be made because such recording is not feasible. Contending that the tape of Hansen's 911 call was difficult to understand, defense counsel requested that either the tape be transcribed or the court admit a transcription of the call from Cameron's trial. The court denied the request, finding the audiotape was the best evidence of its own contents. Kennedy's attorney apparently did not specifically request that the court reporter transcribe the audio portion of the videotape.

The court reporter's failure to transcribe the audio portions of the tapes does not require reversal. The tapes were played to the jury and admitted into evidence. There is no indication that the court reporter had any special equipment or ability to understand the tapes superior to the jurors or us. We find beyond a reasonable doubt that the absence of a transcription of the tapes did not impinge on a substantial right or contribute to Kennedy's conviction or