Mickey Ray Perkins v. State ( 2020 )

Opinion filed February 28, 2020
In The
Eleventh Court of Appeals
__________
No. 11-18-00037-CR
__________
MICKEY RAY PERKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR24903
MEMORANDUM OPINION
The grand jury indicted Mickey Ray Perkins for the first-degree felony
offense of aggravated assault with a deadly weapon against a family member. See
TEX. PENAL CODE ANN. § 22.02 (West 2019). The jury found Appellant guilty of
the offense and assessed his punishment at confinement for twenty-seven years and
a fine of $5,000. The trial court sentenced him accordingly. We affirm.
On appeal, Appellant raises three issues. First, Appellant claims that the trial
court committed error when it allowed the State to present extensive details of an
extraneous offense in the guilt/innocence phase of trial although Appellant had
offered to stipulate to the offense. In his second issue on appeal, Appellant claims
that the evidence was legally insufficient to establish serious bodily injury. Finally,
in his third issue on appeal, Appellant claims that he received ineffective assistance
of counsel.
On the date of the offense, Appellant and Lana Hyles met at the Brownwood
Regional Medical Center. Appellant and Hyles had been in a relationship prior to
this date. The reason that they met at the medical center is disputed. Hyles claimed
that Appellant wanted to borrow her vehicle and that he was going to take her to her
apartment after he met her at the medical center. Appellant, on the other hand,
claimed that Hyles had called him and wanted Appellant to drive her around to run
some errands.
In any event, Appellant was the one who drove Hyles’s vehicle away from the
medical center. When Appellant did not turn in the direction of Hyles’s apartment,
Appellant and Hyles began to argue. Hyles claimed that she asked Appellant where
he was going and that Appellant then “pushed [her] head into the console of the
[vehicle]” and caused her to start bleeding. She testified that Appellant grabbed her
by the neck and held her down. In contrast, Appellant testified that Hyles became
upset after Appellant told her that he had told Hyles’s ex-husband that he believed
that Hyles was doing drugs. Appellant claimed that at this point, while the vehicle
was still in motion, Hyles put the vehicle into either reverse or park as Appellant
simultaneously applied the brakes and that Hyles hit her face on the console of the
vehicle. Appellant testified that Hyles had “a gash in her nose and she was
bleeding.”
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Subsequently, Hyles got out of the vehicle. After Hyles was out of her
vehicle, Carrol Weathermon, a stranger to both Hyles and Appellant, pulled up
behind Hyles’s vehicle to assist after she saw “blood in the air.” Weathermon
testified that she saw Hyles “crumpled on the ground” and Appellant standing over
Hyles. She testified that Appellant had Hyles by the hair and was trying to pull
Hyles back to her vehicle. However, Hyles testified that she did not recall that
Appellant pulled her hair to drag her back to her vehicle.
After Hyles noticed Weathermon, Hyles got into Weathermon’s vehicle and
Weathermon took Hyles to the emergency room at the Brownwood Regional
Medical Center. Appellant drove ahead of them in Hyles’s vehicle in the direction
of the hospital. On the way to the hospital, Weathermon called 9-1-1 and reported
the license plate number of Hyles’s vehicle. She also reported that she was taking
Hyles to the emergency room; officers were sent to the hospital as a result of the
9-1-1 call. Hyles did not stay at the hospital very long and left against medical
advice. In fact, she testified: “I bet I wasn’t even there an hour.” She did not allow
the hospital personnel to put stitches in her nose.
At trial, at a hearing outside the presence of the jury, the State told the trial
court that it wanted to introduce testimony about an unadjudicated extraneous
offense of assault. The State sought to admit the testimony of Appellant’s former
girlfriend, Sarah Rogers. The State announced that Rogers would testify to an
alleged assault committed by Appellant against her. The State argued that, under
Article 38.371 of the Texas Code of Criminal Procedure, this type of evidence would
be relevant. See TEX. CODE CRIM. PROC. ANN. art. 38.371 (West Supp. 2019). The
State further argued that the testimony would be admissible under Rule 404(b) of
the Texas Rules of Evidence to rebut the defensive theory that Hyles caused her
injury herself when she shifted the vehicle into either reverse or park while the
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vehicle was still in motion. The State also argued that Rogers’s testimony would
show motive and absence of mistake or lack of accident.
Appellant’s trial counsel argued that Rogers’s testimony about the extraneous
offense should not be allowed because Appellant offered to stipulate to the assault.
Appellant’s counsel also argued that the testimony would be more prejudicial than
probative and would confuse the jurors.
The trial court ultimately allowed Rogers to testify to the extraneous assault
to show intent and motive, to rebut a defensive theory, and to show absence of
mistake. The trial court ruled that the State was not required to accept Appellant’s
offer to stipulate, and it also found that the probative value of the testimony
outweighed its prejudicial nature. The trial court also provided a limiting instruction
to the jury in which it instructed the jury that Rogers’s testimony could only be
considered if the jury believed beyond a reasonable doubt that Appellant committed
the extraneous offense and, if so, that it could only consider her testimony to
determine intent, motive, absence of mistake or lack of accident, or to rebut a
defensive theory “in connection with the offense alleged against [Appellant] in the
indictment.”
First, we will discuss Appellant’s claim that the trial court should not have
allowed Rogers to testify to the extraneous offense. At trial, Rogers testified that
she first met Appellant on social media when both she and Appellant lived in
Arkansas and that, in 2015, she eventually moved to Texas with Appellant.
Appellant, Rogers, and Rogers’s son lived together.
Rogers testified that, on one occasion, she and Appellant had been out
drinking and later went home and went to bed. During the night, for reasons that
she could not remember, she awakened Appellant. She testified that Appellant woke
up “[v]ery mean” and that an argument ensued. Rogers said that Appellant struck
her with a closed hand because “[she] wouldn’t stop talking” and that Appellant
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“started punching [her] wherever he could.” She also testified that, during the
assault, she lost consciousness but that, when she woke up, she was on the floor and
Appellant was still hitting her.
Rogers told the jury that the assault ended when Appellant dragged her, by
her hair, from the bedroom to the living room. After she put on her clothes, she got
her son, went outside, locked herself and her son in the car, called 9-1-1, and waited
for law enforcement to arrive. Rogers also testified about her injuries. She stated
that, as a result of the assault, she sustained bruises around her neck, a black eye,
scratches on her face, and two broken ribs. She also testified that the results of a CT
scan revealed that she had suffered a brain bleed.
Appellant argues that the trial court committed error when it allowed Rogers
to testify to the details of the extraneous assault in the guilt/innocence phase of the
trial even though Appellant offered to stipulate to the offense. Absent circumstances
not relevant here,1 the State was not required to accept Appellant’s offer to stipulate.
Rodriguez v. State, 373 S.W.2d 258, 259 (Tex. Crim. App. 1963) (“The State may
adduce its testimony as it sees fit, and it may or may not agree to a stipulation.”);
Castillo v. State, No. 08-02-00199-CR, 2003 WL 21674197, at *11 (Tex. App.—
El Paso July 17, 2003, no pet.) (not designated for publication); Sinclair v. State,
No. 14-96-01564-CR, 1999 WL 649072, at *3 (Tex. App.—Houston [14th Dist.]
Aug. 26, 1999, pet. ref’d) (not designated for publication).
“Evidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.” TEX. R. EVID. 404(b)(1). Further, even relevant
evidence may be inadmissible if its probative value is “substantially outweighed by
1
See, e.g., Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002) (involving offer to stipulate to
jurisdictional DWI enhancement).
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a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.”
TEX. R. EVID. 403. Evidence is relevant if it “has any tendency to make a fact more
or less probable than it would be without the evidence” and if “the fact is of
consequence in determining the action.” TEX. R. EVID. 401.
Evidence of a crime, wrong, or other act may be admissible for a purpose other
than character conformity, such as proof of “motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” TEX. R.
EVID. 404(b)(2). Evidence of extraneous acts may also be admitted to rebut a
defensive issue that negates an element of the charged offense. De La Paz v. State,
279 S.W.3d 336, 343 (Tex. Crim. App. 2009).
“Whether extraneous offense evidence has relevance apart from character
conformity, as required by Rule 404(b), is a question for the trial court.” Martin v.
State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005) (quoting Moses v. State, 105
S.W.3d 622, 627 (Tex. Crim. App. 2003)). Indeed, “[t]he standard of review for a
trial court’s ruling under the Rules of Evidence is abuse of discretion.” Id. at 467
(quoting Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004)). This
means we will only overrule a trial court’s decision on the admissibility of evidence
if that decision is outside the zone of reasonable disagreement. Id.
To be admissible under both Rule 404(b) and 403 of the Texas Rules of
Evidence, the extraneous evidence must satisfy a two-prong test: the extraneous
offense must be relevant to a fact of consequence apart from its tendency to prove
conduct in conformity with character, and the probative value of the evidence must
not be substantially outweighed by unfair prejudice. Id. When the trial court
balances probative value against unfair prejudice, the trial court should consider:
(1) the strength of the evidence in making a fact more or less
probable; (2) the potential of the extraneous-offense evidence to
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impress the jury in some irrational but indelible way; (3) the
amount of time the proponent needed to develop the evidence; and
(4) the strength of the proponent’s need for the evidence to prove
a fact of consequence.
Hung Phuoc Le v. State, 479 S.W.3d 462, 471 (Tex. App.—Houston [14th Dist.]
2015, no pet.); see Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).
As we previously noted, in a hearing outside the presence of the jury,
Appellant’s counsel objected to the admission of Rogers’s testimony. Counsel
argued that it was more prejudicial than probative and would confuse the jurors. The
State argued that the testimony was relevant to rebut Appellant’s defensive issue and
to show motive, as well as absence of mistake and lack of accident. When the trial
court ruled, it stated: “I do find that, on balance, that the probative value does
outweigh the prejudicial nature. . . . [I]t can be admitted to show the intent and the
motive of the Defendant in this case, as well as . . . to rebut a defensive theory, and
to show absence of mistake . . . .”
It is clear from the trial court’s statement that the trial court found Rogers’s
testimony to be admissible under Rule 404(b) and also conducted the necessary two-
prong test under Rule 403. See Patterson v. State, 496 S.W.3d 919, 929 (Tex.
App.—Houston [1st Dist.] 2016, pet. ref’d) (when the trial court weighs the
relevance of the evidence against its prejudicial impact, it need not formally
announce on the record that it has conducted this balancing test). The trial court’s
ruling under Rule 404(b) was not outside the zone of reasonable disagreement. See
Grider v. State, 69 S.W.3d 681, 689 (Tex. App.—Texarkana 2002, no pet.)
(upholding the admission of testimony from defendant’s prior girlfriend about a
previous assault). Further, because “[w]e generally presume a jury followed a trial
court’s instruction regarding consideration of evidence,” any potential harm was
mitigated by the trial court’s limiting instruction to the jury. Hung Phuoc Le, 479
S.W.3d at 472. Thus, the trial court did not abuse its discretion when it allowed
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Rogers to testify to the extraneous offense. We overrule Appellant’s first issue on
appeal.
Next, we will discuss Appellant’s challenge to the sufficiency of the evidence.
In his second issue on appeal, Appellant claims that the evidence was legally
insufficient to establish the serious bodily injury element of the offense.
For a challenge to the sufficiency of the evidence, we review all the evidence
in the light most favorable to the verdict to determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010). The trier of fact is the sole judge of the weight of
the evidence and the credibility of the witnesses. Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App—Eastland 2008, pet. ref’d).
We defer to the trier of fact’s resolution of any conflicts in the evidence and presume
that the trier of fact resolved such conflicts in favor of the verdict. Jackson, 433 U.S.
at 326; Brooks, 323 S.W.3d at 899; Clayton v. State, 235 S.W.3d 722, 778 (Tex.
Crim. App. 2007).
A person commits assault if the person “intentionally, knowingly, or
recklessly causes bodily injury to another.” PENAL § 22.01(a)(1). A person commits
the first-degree felony of aggravated assault against a family member if the actor
uses a deadly weapon in the commission of the assault and causes serious bodily
injury to another person whose relationship with the actor is described by the
relevant sections of the Texas Family Code, which includes a dating relationship as
defined by Section 71.0021(b) of the Family Code. PENAL § 22.02(b)(1); see TEX.
FAM. CODE ANN. § 71.0021(b) (West 2019).
“Serious bodily injury” is injury “that creates a substantial risk of death or that
causes death, serious permanent disfigurement, or protracted loss or impairment of
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the function of any bodily member or organ.” PENAL § 1.07(a)(46) (West Supp.
2019). “There are no wounds that constitute ‘serious bodily injury’ per se.”
Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2012, pet. ref’d).
Instead, what constitutes serious bodily injury must be determined on a case-by-case
basis. Id.
Further, the relevant issue is the extent of the injury as inflicted. “[A]n
appellate court should not consider the amelioration or exacerbation of an injury by
actions not attributable to the offender, such as medical treatment.” Blea v. State,
483 S.W.3d 29, 35 (Tex. Crim. App. 2016). “However, in evaluating the evidence
supporting serious bodily injury, courts do consider . . . whether the injury would be
permanently disfiguring without medical treatment.” Sizemore, 387 S.W.3d at 829.
In addition, serious bodily injury can be established without a physician’s testimony
“when the injury and its effects are obvious. The person who sustained the at-issue
injury is qualified to express an opinion about the seriousness of that injury.” Id. at
828 (citation omitted).
At trial, Weathermon testified that “[Hyles’s] nose was bleeding profusely.
She was . . . just dripping.” While no physician testified, Hyles testified that she still
had a scar from her injury over a year after the incident, that the cut still caused her
tenderness and pain, that the swelling because of the cut disrupted the use of her
nose for “some time,” and that she assumed she would have a scar forever. Hyles
also testified that her friend, April Wooldridge, a licensed vocational nurse, treated
her nose every day for a week after Hyles left the hospital. Additionally, one of the
responding officers testified that Hyles had a “very large gash on her nose.” Even
Appellant testified that Hyles had “a gash in her nose and she was bleeding.”
State’s Exhibit No. 1 was a recording of the 9-1-1 call, on which Hyles could
be heard in the background. She stated on the call: “I need the emergency room,”
“I’m bleeding everywhere,” and “I’m in a lot of pain.” State’s Exhibit Nos. 2
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through 5 were photographs taken by police officers. The photographs depict
Hyles’s injuries when she was at the hospital. The photographs reflect the fact that
there was blood all over Hyles’s face and arms. Also, State’s Exhibit Nos. 12 and
13 were photographs of the interior of Hyles’s vehicle where the assault occurred.
In these photographs, blood can be seen on the console and on the passenger seat.
From the evidence described above, viewed in the light most favorable to the
verdict, a rational juror could have found beyond a reasonable doubt that Hyles’s
injury constituted serious bodily injury. Thus, we find that the evidence is sufficient
to establish the serious bodily injury element of the offense. We overrule
Appellant’s second issue on appeal.
Finally, we will discuss Appellant’s third issue, in which Appellant claims
that he received ineffective assistance of counsel. Specifically, Appellant argues
that his trial counsel should have objected to the applicability of Article 38.371 of
the Texas Code of Criminal Procedure as a basis for the admission of Rogers’s
testimony.
Generally, to determine whether Appellant’s counsel rendered ineffective
assistance, we must first determine whether Appellant has shown that his counsel’s
representation fell below an objective standard of reasonableness and, if so, then
determine whether there is a reasonable probability that the result would have been
different but for his counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687
(1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). A
reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55.
Further, we must indulge a strong presumption that counsel’s conduct fell
within a wide range of reasonable professional assistance, and Appellant must
overcome the presumption that the challenged action could be considered sound trial
strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.
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Ohio App. 2000). “A vague, inarticulate sense that counsel could have provided a better
defense is not a legal basis for finding counsel constitutionally incompetent.”
Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).
Allegations of ineffective assistance of counsel must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Typically, the record
on direct appeal is not sufficient to show that counsel’s representation was so
deficient as to overcome the presumption that counsel’s conduct was reasonable and
professional. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002);
Mallett v. State, 65 S.W.3d 59, 64–65 (Tex. Crim. App. 2001). In addition, if an
appellant does not prove one component of the Strickland test, there is no need for
the court to address the other. Strickland, 466 U.S. at 697.
Here, Appellant’s trial counsel objected to the admission of the extraneous
offense testimony and argued that the testimony was more prejudicial than probative.
While the State and the trial court briefly mentioned Article 38.371 of the Texas
Code of Criminal Procedure, the trial court’s decision did not primarily rely on this
article. Ultimately, the trial court admitted the testimony because it found that the
evidence was admissible under Rules 403 and 404(b) of the Texas Rules of
Evidence. Therefore, Appellant’s counsel’s objection was appropriate. Appellant
has not shown that the failure to make an additional objection under Article 38.371
amounted to deficient performance.
As a result, Appellant has not met his burden, under the first prong of
Strickland, to show that his trial counsel’s performance fell below an objective
standard of reasonableness. Therefore, we overrule Appellant’s third issue on
appeal.
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We affirm the judgment of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
February 28, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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