Agbogwe v. State
| Decision Date | 29 August 2013 |
| Docket Number | Nos. 01–12–00207–CR, 01–12–00208–CR.,s. 01–12–00207–CR, 01–12–00208–CR. |
| Citation | 414 S.W.3d 820 |
| Parties | Sunday AGBOGWE, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Neal Davis, Neal Davis Law Firm, PLLC, Houston, TX, for Appellant.
Mike Anderson, District Attorney, Jessica Caird, Assistant District Attorney, Houston, TX, for Appellant.
Panel consists of Justices KEYES, SHARP, and HUDDLE.
A jury convicted appellant, Sunday Agbogwe, of two counts of the misdemeanor offense of assault.1 The trial court assessed punishment at one year's confinement, suspended for one year, and a $500 fine in cause number 1767858 and twenty days' confinement in cause number 1767859, to run concurrently. The trial court also made an affirmative finding of family violence in both cause numbers. In ten issues, appellant contends that (1) the trial court erred in admitting evidence about his ethnicity; (2)-(9) his trial counsel rendered ineffective assistance of counsel under both the United States and Texas constitutions; and (10) the trial court erroneously included an affirmative finding of family violence in the judgment for cause number 1767859. The State raises a cross-point and contends, in cause number 1767858, that the trial court orally pronounced a fine of $1,000 but assessed a $500 fine in its written judgment.
We modify the judgments of the trial court and affirm as modified.
Appellant was in a dating relationship and lived with one of the complainants, Eucharia Ozoh, and they operated a bar together. On June 18, 2011, appellant, who is Nigerian, hosted a traditional Nigerian event called a “wake keeping” at the bar. A wake keeping is a party honoring a member of the community who has had a death in the family. In preparation for the event, Ozoh bought several bottles of liquor. She testified that the drinks served at this party needed to be purchasedand that the bottles were not to be given away to the guests. She asked her friend Brenetha Caldwell, the other complainant, to assist her in serving guests at the party. It is undisputed that Caldwell is not related to appellant and that she was not a member of appellant's household. Ozoh also testified that Majerum McCarthy, whom she knew but was not friends with, was also present and helping serve.
During the course of the evening, Ozoh observed appellant handing out bottles of liquor to guests without requiring payment. Ozoh saw appellant give a guest the last bottle of cognac, worth $100, and Ozoh approached the guest and asked him if he needed the entire bottle because that was the last bottle and the party was still ongoing. The guest replied that he did not need the entire bottle, and he gave the bottle back to Ozoh. As Ozoh placed the bottle back on the shelf, appellant “swung at [her]” with his fist. Appellant hit her twice and continued to hit her as she fell to the floor, at which point appellant kicked her on her back. Caldwell tried to intervene, and appellant started hitting her as well. When the police arrived, after Caldwell called 9–1–1, Ozoh was hesitant to talk to them. She acknowledged that she had asked the State to drop the charges against appellant because she was scared. She testified that appellant, as well as friends of his, had asked her to drop the charges. Defense counsel did not object to this testimony. The State asked, “Even though you wanted to drop charges, does that mean—are you saying that it didn't happen?” Ozoh responded, “It happened.”
During Ozoh's testimony, the State asked her about the circumstances under which she and appellant decided to go into business together. She stated that appellant had previously owned a medical supply business and that he was having difficulties with one of his employees. When Ozoh and appellant were discussing these problems, appellant told her that he and the employee “had a big altercation in the office and police came and that he almost hit her.” Defense counsel objected, and the trial court sustained the objection. Defense counsel did not request a limiting instruction or an instruction to disregard this testimony.
Caldwell testified that Ozoh showed her that appellant was charging guests for drinks and then pocketing the money instead of putting it in the cash register. Neither Ozoh nor Caldwell confronted appellant about this. Later, Caldwell saw Ozoh walk up to a guest after appellant had given him the last bottle of cognac and ask if he would mind letting her have the bottle so she could continue to serve the guests. The guest gave the bottle back. Ozoh was standing next to Caldwell as she put the bottle back on the shelf, and Caldwell testified that “everything was quiet-like and all [of a] sudden, I just looked and [appellant] was beating [Ozoh].” Caldwell saw appellant beating Ozoh on the top of her head with his fist and kicking her in her side. Caldwell tried to shield Ozoh from appellant's blows, but appellant then pulled Caldwell over Ozoh and hit her on the left side of her face with a closed fist. Caldwell ran outside and called 9–1–1. The responding police officer noticed redness in the area where appellant had hit Caldwell, and she had a bruise several days later.
Caldwell testified that, while the case was pending, Ozoh and friends of appellant asked her to drop the charges against appellant. She also testified that appellant's friends asked her not to comply with the subpoena issued to her in the case and not to show up in court. These individuals offered to pay any fines that Caldwell incurred for her noncompliance. Defense counsel did not object to this testimony.
Houston Police Department Officer J. Morant testified that she responded to a 9–1–1 call concerning two assaults at the bar. Caldwell, who was standing outside when Officer Morant arrived, looked “a little upset” and was “a little shaky,” but she was able to tell Morant about what had happened. Ozoh did not want to speak with Officer Morant initially, but she did eventually speak with her. Officer Morant described Ozoh's demeanor as “really nervous.” Officer Morant observed “some redness” on the area near Caldwell's ear.
McCarthy testified that she was bartending at the bar on June 18, 2011. At one point during the evening, Ozoh showed McCarthy that appellant was giving away liquor. McCarthy saw Ozoh ask the guest who received the liquor if he wanted to buy it. After that, Ozoh and appellant “started back and forth with one another, I guess, about the situation; and then [appellant] hit [Ozoh]” with his fist, and Ozoh fell to the floor. McCarthy only saw appellant hit Ozoh once. After Ozoh fell to the floor, Caldwell came over, crouched down on the floor with Ozoh, and asked appellant what he was doing. In response, appellant hit Caldwell with a closed fist.
On re-direct examination of McCarthy, the prosecutor approached the bench and informed the trial court that she “would like to ask this witness about the extraneous criminal mischief when the defendant came back [to the bar] the next day and damaged property ....” The trial court refused to allow the State to explore this line of questioning.
On cross-examination of Ozoh, which occurred the day after McCarthy testified, defense counsel asked whether she changed the locks on the doors to the bar after this incident. Ozoh responded that she did. The following exchange then occurred:
[Defense counsel]: And did that then eliminate [appellant's] entry into the bar?
[Ozoh]: It did not.
[Defense counsel]: And now, did [appellant] rekey the locks?
[Ozoh]: He did.
[Defense counsel]: Did you complain about that?
[Ozoh]: He did and vandalized the place. He did rekey it, went there, vandalized, and took every single thing in that bar.
On re-direct examination, the State questioned Ozoh about this vandalism, and the trial court admitted ten photographs which depicted missing television sets, a broken mirror, and paint splashed on a wall of the bar.
Pat Otalor testified on appellant's behalf and stated that she was present at the bar on the night of the incident. She stated that guests at a wake keeping are not expected to pay for their drinks. Otalor was able to see appellant and Ozoh having an argument, but she did not see either Ozoh or Caldwell fall to the floor.
Daniel Nwatune, another guest at the party, testified that he told appellant that he needed some cognac. Right after appellant gave him the drink, Ozoh “snatched” the drink away in an aggressive and impolite manner and asked him if he had paid for the drink. As they were talking, appellant came back over and Nwatune explained the situation. Appellant and Ozoh then started arguing, and Ozoh shouted at appellant. Nwatune testified that appellant and Ozoh argued, but appellant did not hit Ozoh or Caldwell.
Gladys Uwagboi testified that she heard Ozoh say, “I will show him, I will tell him that he's a little rat.” She did not see appellant hit Ozoh. Festus Irabor testified that he also heard Ozoh call appellant a “little rat” and that, although he saw appellant and Ozoh arguing, he did not see anyone get hit during the party.
Appellant testified on his own behalf. He stated that he was surprised when Ozoh and Caldwell arrived at the party because they were not invited. He did not remember seeing McCarthy at the party at all. He stated Nwatune requested a bottle of cognac, and, after he gave him the bottle, Nwatune told him that Ozoh had snatched the bottle away from him. When appellant questioned Ozoh about this, Ozoh “just went off on [him].” Some of the guests took appellant outside to defuse the situation.
Appellant testified that he did not intend to vandalize the bar when he went to it the next day. He called a locksmith to let him in the building, and, once inside, he decided to remove all of the things in the bar that he had purchased himself, including the television sets. He used a ladder to remove one of the televisions, and, at one point, the...
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