Stephen Hollar v. State ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00445-CR
NO. 03-13-00446-CR
Stephen Hollar, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NOS. CR-12-0625 & CR-13-0100, HONORABLE JACK ROBISON, JUDGE PRESIDING
MEMORANDUM OPINION
In two different indictments, Stephen Hollar was charged with assaulting his wife
Patricia Davis,1 whom Hollar was living with at the time of his arrest. See Tex. Penal Code § 22.01
(setting out elements of assault). Specifically, the first indictment alleged that Hollar “intentionally,
knowingly, and recklessly” caused bodily injury to “Davis by grabbing her ankle,” and the second
indictment alleged that he “intentionally, knowingly, and recklessly” caused bodily injury to “Davis
by pushing or throwing her.” Both indictments also alleged that Hollar had previously been
convicted of assaulting a member of his family. See id. § 22.01(b) (elevating offense of assault from
misdemeanor to third-degree felony if defendant has previously been convicted of assaulting person
1
Although Patricia Davis is sometimes referred to as Patricia Davis Hollar, the briefing,
indictments, and jury charges refer to Hollar’s wife as Patricia Davis. For that reason, we will also
refer to her as Patricia Davis or Davis.
“whose relationship to or association with the defendant is described by” Family Code). In addition,
both indictments contained an enhancement paragraph alleging that Hollar had previously been
convicted “of the felony offense of Assault Family Violence Repeat Offender.” Hollar pleaded true
to the enhancement allegation in both indictments. At the conclusion of the trial, the jury determined
that Hollar was guilty of both charges and sentenced Hollar to 20 years’ imprisonment for each
charge. See id. § 12.42 (elevating permissible punishment range for third-degree felony offense to
that of second-degree felony when “it is shown . . . that the defendant has” previously been convicted
of felony offense)2; see also id. § 12.33 (setting out permissible punishment ranges for second-degree
felony). Hollar appeals his conviction. We will affirm the district court’s judgments of conviction.
DISCUSSION
In two issues on appeal, Hollar challenges his convictions. First, he argues that his
trial attorney was ineffective. Next, he argues that the evidence is legally insufficient to support his
conviction under the second indictment, which alleged that he pushed or threw Davis. We will
address his sufficiency challenge first and then address his remaining issue.
2
We note that the provision of the Penal Code authorizing enhanced punishments for
repeat offenders has recently been amended by the legislature and that those amendments became
effective after Hollar’s conviction in this case. See Act of May 9, 2013, 83d Leg., R.S., ch. 161,
§§ 16.001-.003, sec. 12.42, 2013 Tex. Gen. Laws 622, 678; Act of May 23, 2013, 83d Leg., R.S.,
ch. 663, §§ 7-9, sec. 12.42, 2013 Tex. Gen. Laws 1751, 1753; Act of May 24, 2013, 83d Leg., R.S.,
ch. 1323, § 11, sec. 12.42, 2013 Tex. Gen. Laws 3506, 3512. However, because those amendments
do not substantively alter the effect that a prior felony conviction has on the permissible punishment
range for a third-degree felony offense, we refer to the current version of the statute. See Tex. Penal
Code § 12.42.
2
Legal Sufficiency
As mentioned above, Hollar contends that the evidence was insufficient to support
his conviction for the assault charge alleging that he pushed or threw Davis. In challenging the
sufficiency of the evidence of this conviction, Hollar acknowledges that recordings of Davis from
the day of the alleged assault were played for the jury and that on the recordings Davis informed law-
enforcement personnel that Hollar had assaulted her and had thrown her across the room and onto
the coffee table; however, Hollar insists that no evidence was ever introduced establishing that Davis
ever complained of any “pain or injury.” In fact, Hollar contends that the only direct evidence of
pain came from a portion of one of the recordings in which Davis recounted that she experienced
pain when Hollar twisted her leg behind her, but Hollar insists that this evidence of pain was only
relevant to the other assault charge. Moreover, Hollar contends that, if anything, the evidence shows
that Davis did not experience pain because the coffee table, which broke when she landed on it,
“cushioned” her fall. Furthermore, although Hollar mentions Davis’s statements on the recordings,
he emphasizes that during her actual testimony, Davis testified that she had no recollection of the
events in question and that she did not believe that Hollar was responsible for her falling. Finally,
Hollar contends that the testimony from other witnesses corroborates Hollar’s testimony that he did
not cause Davis to fall. For these reasons, Hollar urges that the evidence was insufficient.
An assault is defined under the Penal Code as “intentionally, knowingly, or
recklessly caus[ing] bodily injury to another.” Tex. Penal Code § 22.01(a)(1). Further, the Penal
Code broadly explains that “‘[b]odily injury’ means physical pain, illness, or any impairment of
physical condition.” Id. § 1.07(a)(8). “This definition encompasses even relatively minor physical
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contact if it constitutes more than offensive touching.” Laster v. State, 275 S.W.3d 512, 524 (Tex.
Crim. App. 2009). Moreover, in order to prove that bodily injury occurred, there does not need to
be any testimony that the victim experienced pain; on the contrary, “the jury is permitted to draw
reasonable inferences from the evidence, including an inference that the victim suffered pain.”
Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.—El Paso 2002, no pet.). Stated differently, “[a]
fact finder may infer that a victim actually felt or suffered physical pain because people of common
intelligence understand pain and some of the natural causes of it.” Randolph v. State, 152 S.W.3d
764, 774 (Tex. App.—Dallas 2004, no pet.); see also Wawrykow v. State, 866 S.W.2d 96, 99 (Tex.
App.—Beaumont 1993, pet. ref’d) (explaining that “juries are free to use their common sense and
apply common knowledge, observation, and experience gained in the ordinary affairs of life when
giving effect to the inferences that may reasonably be drawn from the evidence”).
Under a legal-sufficiency review, appellate courts view the evidence in the light
most favorable to the verdict and determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). When performing this review, an appellate court must keep in mind that it is the factfinder’s
responsibility to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable
inferences “from basic facts to ultimate facts.” Id. Moreover, an appellate court must “determine
whether the necessary inferences are reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9,
16-17 (Tex. Crim. App. 2007). In addition, appellate courts should presume that any conflict among
the inferences was resolved in favor of the conviction and should defer to that resolution. Clayton
4
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Under a sufficiency review, appellate courts
consider all the evidence that the jury was allowed to consider regardless of whether the evidence
was rightfully or wrongly admitted. Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim App. 2004).
In his brief, Hollar correctly points out that during her testimony at trial, Davis related
that she did not want to testify in the proceedings and that she had filed an affidavit of non-
prosecution after Hollar was arrested. The affidavit was admitted as an exhibit. In the affidavit,
Davis averred that she has “difficulty with coordination” and that on the day of the alleged assault
she had “taken medication, been drinking alcohol and been up for 30 hours or more” and “fell
backwards over the coffee table and knocked” herself out. Further, Davis explained in her testimony
that she could not recall the events in question and repeated the assertions from her affidavit that she
had taken medication for vertigo and had been drinking. She also communicated that she was “not
confident that [Hollar] did this,” that she did not believe that Hollar “had anything to do with” her
falling, that she thought that she had fallen on her own, and that she had been to the emergency room
for falling since Hollar had been arrested.
As mentioned above, during his defense, Hollar called witnesses who testified
that Davis had a history of falling down. First, Davis called Randall Reynolds who stated that he
observed Davis fall one time when she was outside and that on another occasion, he found Davis
lying on her driveway. In addition, Hollar called his daughter, Sarah Hollar, and her boyfriend,
Scott Sullivan, to testify. In their testimonies, Sarah and Sullivan related that Davis had difficulty
walking because she has poor balance. Furthermore, Sarah testified that Davis was not a credible
person, and Sullivan described Davis as delusional.
5
Moreover, when testifying in his own defense, Hollar denied that he had assaulted
Davis. In fact, he explained that Davis caused her own injuries by knocking the coffee table over
when she jumped up for the phone.
However, although Davis testified that she could not recall the events on the day
in question, recordings in which Davis stated that Hollar had assaulted her and described the
details of the assaults were played for the jury. See Moore v. State, 169 S.W.3d 467, 469 n.3 (Tex.
App.—Texarkana 2005, pet. ref’d) (explaining that it is not uncommon for victims of domestic
violence to refuse to cooperate with prosecution or to recant their accusations). The first recording
was of the 911 call that Davis made on the day in question, and the second recording was made by
Deputy Shawn Booth when he responded to the 911 call. In those recordings, Davis stated that
Hollar drank very heavily before the assault and that he gets aggressive when he drinks. Regarding
the events leading up to the assault at issue, she stated that he began verbally and physically
assaulting her in the morning, that he dumped the contents of an ashtray on her, and that he placed
his genitals near her face while uttering profane language. Moreover, Davis told Booth that Hollar
repeatedly pushed and shoved her for several hours, “knock[ed]” her around, twisted her leg behind
her, twisted her ankle, and threw her across the room and onto a coffee table, which caused
the coffee table to break into pieces. When discussing the contents of those recordings during her
testimony, Hollar stated that she would “[n]ot purposely” lie to a police officer and that she did not
sound intoxicated on the recordings.
In addition to the recordings, Booth testified regarding his own observations on that
day. In his testimony, Booth testified that when he arrived, Davis was upset and that her ankle was
6
swollen. Further, Booth related that when he went in the house, he noticed a broken coffee table on
the floor. Moreover, Booth explained that someone falling on a coffee table would suffer injury as
well as pain. During Booth’s testimony, the State introduced photos of the scene, including photos
of the broken table.
Finally, Hollar’s previous wife, Barbara Hollar, testified regarding abuse that she
suffered while married to him. Specifically, Barbara stated that during their marriage, Hollar was
physically and emotionally abusive, that he knocked her down some stairs while she was pregnant,
that he broke her nose twice, that he kicked her in the back, that he pulled her hair, that he burned
her with a frying pan, and that he tried to smother her. Further, she revealed that Hollar had
previously been convicted of assaulting her.
In light of the evidence summarized above and given the inferences that could
reasonably be made from the evidence, including that Davis experienced pain, we cannot conclude
that the evidence was legally insufficient to support Hollar’s conviction under the terms of the
indictment alleging that Hollar assaulted Davis by pushing or throwing her. Accordingly, we
overrule Hollar’s second issue on appeal.
Ineffectiveness Claim
As mentioned above, in his first issue, Hollar urges that his trial counsel provided
ineffective assistance of counsel during both the guilt and the punishment phases of the trial.3
3
After the conclusion of the trial, Hollar filed a motion for new trial in which he generally
alleged that his attorney provided him ineffective assistance of counsel; however, no hearing on the
motion for new trial was held.
7
Although he mentions other alleged deficiencies in the background section of his brief, his argument
section limits his challenges to the following 7 actions and inactions by his attorney:
• failure to object to the introduction of the recording made by Deputy Booth
on the basis that it was testimonial in nature under Crawford v. Washington,
541 U.S. 36 (2004);
• failure to object on hearsay grounds to the portions of Booth’s testimony in
which he described the recording that he made of Davis;
• decision to ask Regina Burroughs, who was called to testify for Hollar, if she
believed that Hollar was a violent person, which resulted in the introduction
of evidence of Hollar’s extensive criminal history during her cross-
examination;
• failure to ask for a hearing under Rule of Evidence 403 regarding the
prejudicial value of Barbara’s testimony;
• failure to object to the State’s introduction of documents related to Hollar’s
prior conviction for assaulting Barbara that showed facts pertaining to the
prior offenses, probation violations, and extraneous offenses;
• failure to object during the punishment phase to the State’s introduction of
22 booking sheets showing Hollar’s prior arrests because those booking
sheets did not establish beyond a reasonable doubt that Hollar had been
convicted of the prior bad acts; and
• failure to object to and to request a limiting instruction regarding the State’s
repeated and improper references during the punishment phase to the effect
that parole will have on Hollar’s sentence.
For ineffectiveness claims, the defendant must overcome the strong presumption
that his trial “counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland v. Washington, 466 U.S. 668, 689 (1984). To prevail on an ineffectiveness claim, the
defendant must show that the attorney’s “representation fell below an objective standard of
8
reasonableness . . . under prevailing professional norms” and that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 688, 694. Decisions regarding effectiveness must be based on the totality of the representation.
Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim. App. 2013); see also Davis v. State, 413 S.W.3d
816, 837 (Tex. App.—Austin 2013, pet. ref’d) (explaining that assessment of performance should
consider cumulative effect of counsel’s deficiencies). Moreover, although a defendant is not entitled
to representation that is without error, a single error can render the representation ineffective if it
“was egregious and had a seriously deleterious impact on the balance of the representation.”
Frangias, 392 S.W.3d at 653.
Generally speaking, a direct appeal does not provide a useful way to present an
ineffectiveness claim because the record for that type of claim is usually undeveloped. Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). “This is true with regard to the question
of deficient performance . . . where counsel’s reasons for failing to do something do not appear in
the record.” Id. (explaining that “counsel’s conduct is reviewed with great deference, without the
distorting effects of hindsight”). Moreover, before being deemed ineffective, trial attorneys should
be given the opportunity to clarify their actions. Id. When that opportunity has not been provided,
as in this case, an appellate court should not conclude that an attorney’s performance was ineffective
unless the challenged conduct is “so outrageous that no competent attorney would have engaged in
it.” See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Six of the seven alleged instances of ineffective representation stem from purported
failures to act on the part of Hollar’s trial attorney, and the record before this Court is not sufficiently
9
developed to allow us to evaluate those supposed failures to act because “[n]either [his] counsel nor
the State have been given an opportunity to respond to” the claims of ineffectiveness. Menefield v.
State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Moreover, given the record before us, we
do not believe that those alleged failures were so outrageous that no competent attorney would
have committed them. Further, we note that although Hollar’s trial attorney did not object to the
admission of the recording made by Deputy Booth on testimonial grounds or to the testimony
discussing portions of the video, his counsel did object on the ground that “it doesn’t qualify as a
present sense impression because it is a narrative and it is audio of the victim of the crime
responding to questions asked by the police officers.” We also note that although Hollar contends
that his counsel failed to object to the 22 booking sheets, the record shows that his counsel did argue
in a hearing outside the presence of the jury that the sheets should not be admitted because they were
simply arrest records and did not show that Hollar was convicted of any crime. Regarding Hollar’s
assertion that his counsel failed to object to the State’s comments about the effect of parole and
failed to ask for a limiting instruction, the record shows when the State commented during its
closing that the amount of time served by Hollar will be significantly less than the sentence imposed
by the jury, Hollar’s counsel objected and explained that the State’s comment was an improper
argument. In addition, the record shows that although the district court initially overruled the
objection, it reconsidered Hollar’s counsel’s objection, sustained the objection, and instructed the
jury that it could “not consider how parole law and good conduct time could be applied.”
Turning to Hollar’s remaining contention that his trial counsel provided ineffective
assistance through his decision to ask Burroughs if she believed that Hollar was a violent person, we
10
again note that the record does not clearly establish what Hollar’s counsel’s motivations were
when he asked Burroughs that question. Moreover, although Burroughs’s answer resulted in the
admission of evidence of Hollar’s prior criminal history, we note that Burroughs answered by
stating that Hollar was not violent, was caring, and was the “best person [she] could ever ask to
know,” and Hollar’s counsel might have concluded that the potential benefit of having an individual
who currently knows Hollar testify regarding her belief that Hollar was a peaceful person might
outweigh the potential negative consequences that could result. In light of the record before us, we
cannot conclude that Hollar’s counsel’s action was “so outrageous that no competent attorney
would have engaged in it.” See Garcia, 57 S.W.3d at 440.
Even though it is unnecessary to address the issue further, we do note that “the
totality of the representation” provided by an attorney must be considered when assessing his
effectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). During voir dire,
Hollar’s attorney extensively questioned the jury panel regarding their ability to serve on the jury;
asked the panel if they could think of reasons why an alleged victim might falsely accuse someone
of a crime, about their prior interactions with law-enforcement personnel, and about the effect
that a defendant’s prior convictions might have on their decision making; and moved to strike
several panel members for cause. Further, the record also shows that Hollar’s counsel objected to
the admission of the recording of the 911 call on various grounds, objected to the admission of
the recording made by Deputy Booth, cross-examined the State’s witnesses, and called various
witnesses to testify on Hollar’s behalf. Moreover, during his closing argument, Hollar’s attorney
emphasized that Davis testified that Hollar did not assault her and that she did not remember the
11
events on the day in question, and his attorney also discussed how the State has the burden to prove
that Hollar was guilty and how even though there was evidence of Hollar’s prior misdeeds, the
jury should only find him guilty if they conclude that he was guilty of the offense actually charged.
In light of the foregoing, we overrule Hollar’s first issue on appeal.4
CONCLUSION
Having overruled Hollar’s two issues on appeal, we affirm the district court’s
judgments of conviction.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: August 14, 2014
Do Not Publish
4
In general, rejected claims made in a direct appeal are “not cognizable on habeas corpus.”
Ex parte Nailor, 149 S.W.3d 125, 131 (Tex. Crim. App. 2004). However, that prohibition does
not apply when an appellate court “rejects a claim of ineffective assistance of counsel because
the record on direct appeal does not contain sufficient information to adequately address and
resolve a particular allegation of counsel’s deficient performance,” and the claim may be considered
“in a later habeas corpus proceeding if he provides additional evidence to prove his claim.” Id.
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