Louis Wayne Watters v. State ( 2004 )

     NUMBER 13-01-686-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG   

LOUIS WAYNE WATTERS,                                                Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

On appeal from the 148th District Court of Nueces County, Texas  

O P I N I O N

Before Justices Yañez, Castillo, and Baird

  Opinion by Justice Baird  

        Appellant was charged by indictment with the offense of murder. A jury convicted appellant of the charged offense, and the trial judge assessed punishment at confinement for ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division. Appellant raises four points of error. We affirm.

I. Extraneous Offense.

          The first point of error contends the trial judge erred in admitting evidence of an extraneous offense. A summary of the evidence is necessary to put this point in context. Appellant and Clyde Ramsey had a disagreement over a drug deal. This disagreement led to a confrontation between them a few days prior to the instant offense. At this confrontation, appellant shot Ramsey.

          In the instant case, appellant repeatedly fired an “AK-47 type” firearm into a group of people outside of the Savoy Hotel. Ramsey and the complainant were members of this group. The complainant was hit by a single bullet, and mortally wounded.

          The State sought to offer evidence of the extraneous offense to prove Ramsey was appellant’s intended victim, but the complainant, with whom appellant had no disagreement, was the person actually shot and killed by appellant. Specifically, the State argued the extraneous offense evidence was admissible to prove motive, intent, plan, and preparation. Appellant objected “to them being extraneous offenses.” That objection was overruled, and several witnesses testified about the extraneous offense.

          Perhaps no rule of law is more firmly recognized in criminal jurisprudence than that the accused may be tried only for the offense charged, and not for some collateral crime or for being a criminal generally. This fundamental tenet is incorporated into our law in rule 404(b) of the Texas Rules of Evidence, which prohibits extraneous offense evidence from being offered to prove character conformity. See Tex. R. Evid. 404(b). However, such evidence may be admissible if it has relevance apart from character conformity. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (op. on reh’g). Extraneous offense evidence has relevance apart from character conformity in three limited circumstances: where the evidence is relevant to: (1) an elemental fact such as identity or intent; (2) an evidentiary fact such as motive or opportunity that inferentially leads to an elemental fact; or (3) defensive evidence such as accident or mistake that undermines an elemental fact. Id. We review the decision to admit such evidence under an abuse of discretion standard of appellate review. Id. at 391. In this context, if the trial court’s ruling was within the zone of reasonable disagreement, the appellate court will not intercede. Id.

          The trial judge charged the jury on the theory of transferred intent as follows:

A person is criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that (1) a different offense was committed or (2) a different person or property was injured, harmed, or otherwise affected.

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that [appellant], on or about June 11, 2000, in Nueces County, Texas, intending to cause the death of Clyde Ramsey by shooting him with a firearm did then and there shoot and kill [the complainant]; or . . . .

          Our review of the record evidence reveals there was bad blood between appellant and Ramsey. However, there is no evidence whatsoever of any disagreement between appellant and the complainant. Nevertheless, when the record evidence is considered in light of the foregoing instruction, we find the elemental fact of intent was at issue in the instant case. Therefore, the extraneous offense evidence had relevance apart from character conformity. Accordingly, we hold the trial judge did not abuse his discretion in admitting the complained of evidence.

          Appellant further argues the extraneous offense evidence was inadmissible under rule 403 of the Texas Rules of Evidence. See Tex. R. Evid. 403. However, a separate objection is required to preserve a rule 403 issue for appellate review. Montgomery, 810 S.W.2d at 388. No such objection was made in the instant case. Therefore, we must reject the rule 403 argument which is advanced for the first time on appeal.

          For both of these reasons, the first point of error is overruled.

II. Motion for New Trial.

          The remaining points of error complain of the denial of appellant’s motion for new trial. In the hearing on that motion, appellant offered into evidence his affidavit and a threatening letter, purportedly from Ladelle “L.T.” Thomlinson. Specifically, Thomlinson promised that appellant and his family would be provided for if appellant took “the rap” for Vincent Johnson, a co-defendant, and the cousin of Thomlinson. But if appellant did not “take the rap,” Thomlinson threatened to make sure appellant’s family was “history,” and appellant would be “fade[d]” in prison. Appellant also offered into evidence the affidavit of trial counsel, who stated he received the letter prior to trial, but misplaced it and did not find the letter until after trial.

          Appellant’s second point of error contends the letter constituted newly discovered evidence. Article 40.001 of the Texas Code of Criminal Procedure provides: “A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.” Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon Supp. 2004). Over the years, a four-part test has been developed for granting a new trial based upon newly-discovered evidence:

(1) the newly-discovered evidence was unknown to the movant at the time of trial;

(2) the movant's failure to discover the evidence was not due to his want of diligence;

(3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and

(4) the evidence is probably true and would probably bring about a different result in another trial.

Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002) (emphasis added).

          We reject appellant’s arguments advanced in the second point of error, because we find the evidence that appellant was threatened by a third party, namely Thomlinson, was collateral to any issue at trial. Easley v. State, 986 S.W.2d 264, 269 (Tex. App.–San Antonio 1998, no pet.) ("threat" testimony was properly excluded on the basis of relevancy). Accordingly, the second point of error is overruled.

          The third point of error contends the trial judge erred in denying the motion for new trial because a material witness, namely appellant, was kept from court by force, threats, or fraud. Tex. R. App. P. 21.2(e). Specifically, appellant argues he was kept from testifying because of the threats contained within Thomlinson’s letter. Appellant’s affidavit states: “Because of the threatening letter, I was afraid to testify in my own behalf or to present evidence of an alibi defense.”

          We must reject this argument for two reasons. First, the circumstances establish that appellant was not “kept from court” because of the threatening letter. The letter instructed appellant to “take the rap.” However, appellant did not take the rap, but instead pled not guilty and proceeded to trial. Secondly, the affidavit does not specify what appellant’s testimony would have been, or what his alibi evidence would have been. Consequently, the trial judge did not abuse his discretion in denying the motion for new trial after considering the conclusory nature of the affidavit. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (affidavit deficient for failing to state what the two witnesses would have said to exculpate defendant). Accordingly, the third point of error is overruled.

          The fourth point of error contends trial counsel was ineffective for not using the Thomlinson letter at appellant’s trial. Obviously, the letter was not available because it was misplaced by trial counsel, and not relocated until after trial. While this conduct cannot be condoned, we are informed by trial counsel’s affidavit that he had no intention of using the letter at appellant’s trial because counsel “did not think the letter was significant as it did not contain anything that indicated [appellant] was innocent.”

          The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 10 of the Texas Constitution. The well known two-pronged standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

          The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Riascos v. State, 792 S.W.2d 754, 758 (Tex. App.–Houston [14th Dist] 1990, pet. ref'd). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App.--San Antonio 1991, pet. ref'd). When handed the task of determining the validity of a defendant's claim of ineffective assistance of counsel, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Therefore, we presume counsel's performance was the result of sound or reasonable trial strategy. Strickland, 466 U.S. at 688, 104 S. Ct. at 2052; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).

          The record evidence before us clearly demonstrates that counsel’s decision to not use Thomlinson’s letter was based upon trial strategy. In light of the foregoing presumption, we are not at liberty to second guess trial counsel’s strategic decisions. Accordingly, the fourth point of error is overruled.

          The judgment of the trial court is affirmed.

                                                                                                                                                                                                                       CHARLES F. BAIRD

                                                                                      Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 26^th day of February, 2004.