Barnett v. State

• Decision Date: 14 September 2011
• Docket Number: No. 06–10–00092–CR.,06–10–00092–CR.
• Citation: 344 S.W.3d 6
• Parties: Randy Dale BARNETT, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

344 S.W.3d 6

Randy Dale BARNETT, Appellant,

v.The STATE of Texas, Appellee.

No. 06–10–00092–CR.

Court of Appeals of Texas, Texarkana.

Submitted: June 8, 2011.Decided: June 14, 2011.Discretionary Review Refused Sept. 14, 2011.

Judy Hodgkiss, The Moore Law Firm, L.L.P., Paris, for appellant.Jeffrey Shell, Atty. for State–Pro Tem, Rockwall, Gary D. Young, Lamar County Dist. Atty., Paris, for appellee.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

The turbulent scene in the Sunriser Diner began when a tearful, red-faced, Kitty Rowland dashed into the Sunriser and immediately headed for the ladies' room. Soon thereafter, Randy Dale Barnett strolled into the diner and entered the men's room. After both emerged back into the dining area, Rowland and Barnett settled into a booth by the front door and ordered coffee from waitress Lisa Dale Wagner. The ensuing argument between the pair was witnessed by Wagner and by diner cook Sandy Flynn and regular customer James Bryan. The argument escalated into more tears from Rowland and anger, threats, and verbal abuse from Barnett. When Bryan sought to verbally defuse the argument and threatened to call police, Barnett reportedly pulled a knife and threatened Bryan.

As a result, Barnett was convicted for aggravated assault with a deadly weapon and sentenced to fifty years' imprisonment. On appeal, Barnett urges a number of issues. We affirm the trial court's judgment because (1) sufficient evidence supports Barnett's conviction, (2) ineffective assistance of counsel has not been shown, (3) the officer's testimony that the knife was a deadly weapon was lay testimony, (4) the appellate complaint of bolstering was not preserved, (5) Barnett was not entitled to the appointment of a different attorney, (6) the mistrial motion was properly denied, and (7) a definition of serious bodily injury was not required.

(1) Sufficient Evidence Supports Barnett's Conviction

Barnett argues that the evidence is legally insufficient to prove that he used or exhibited a deadly weapon when threatening Bryan. We disagree.

In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of aggravated assault with a deadly weapon beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.-Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007) (citing Jackson, 443 U.S. at 318–19, 99 S.Ct. 2781); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997); see Grotti v. State, 273 S.W.3d 273, 280 (Tex.Crim.App.2008); see also Vega v. State, 267 S.W.3d 912, 916 (Tex.Crim.App.2008). Barnett's indictment alleges he “did then and there intentionally or knowingly threaten imminent bodily injury to James Bryan by threatening to cut James Bryan and the defendant did use or exhibit a deadly weapon during the commission of the assault, to-wit: a knife.”

Barnett committed the offense of aggravated assault if he, intentionally or knowingly threatened Bryan with imminent bodily injury and used or exhibited a deadly weapon during the threat. Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon 2011). A deadly weapon is anything that, in the manner of its use or intended use, is capable of causing death or serious bodily injury. Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon 2011).

As the confrontation developed, when Bryan reached for his cell phone, Barnett reportedly shoved him, “brought a pocketknife [sic] out of his pocket, put it up to [Bryan's] ribs and said, I'll cut it from side to—I'll kill you too.” Bryan testified that he saw the two inch blade and “very well felt he would cut me.” Flynn saw that Barnett “was standing in the doorway with his hand down to his side” with what “appeared to be a knife, the point blade of a knife” in his hands. When Flynn picked up a telephone and dialed 9–1–1, Barnett fled, leaving Rowland behind.

Although Flynn testified she saw a knife, she did not see Barnett attempt to cut or shove Bryan. Instead, she testified Barnett was standing in the doorway when he brandished the knife. Wagner also testified that, while the men were “just kind of standing face-to-face,” she did not see Barnett shove Bryan. Wagner also said she did not see a knife. Rowland, who was not at trial, signed an affidavit that stated, “other people there said that [Barnett] pulled out his pocket knife. I never saw him and in the last 3 months [Barnett has] not carried one that I know of.”

Here, Bryan testified that Barnett shoved him, placed a two inch blade on the lower part of his ribs, and said, “I'll cut it from side to—I'll kill you too.” Bryan's testimony that he “very well felt [Barnett] would cut me,” demonstrates the immediacy and nature of the threat. A police officer testified that the pocket knife was a deadly weapon capable of causing death or serious bodily injury.

Although there is evidence contradicting Bryan's testimony, the jury was the exclusive judge of credibility of witnesses, the weight to be given their testimony, and reconciliation of conflicts in the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App.2000). The jury was free to find that Bryan was in the best position to observe Barnett's threats. We find the evidence legally sufficient to establish that Barnett intentionally or knowingly threatened Bryan that he would cut him while brandishing a knife. There was testimony that the knife could be considered a deadly weapon capable of causing death or serious bodily injury. Therefore, we find the evidence legally sufficient to sustain Barnett's conviction for aggravated assault with a deadly weapon. Barnett's first point of error is overruled.

(2) Ineffective Assistance of Counsel Has Not Been Shown

Barnett claims that he received ineffective assistance of counsel in a number of ways.

In order to ultimately prevail in an ineffective assistance of counsel claim, a defendant seeking to challenge counsel's representation must establish that his or her counsel's performance was deficient and prejudiced the defense. Smith v. State, 286 S.W.3d 333, 340 (Tex.Crim.App.2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002)). Any allegation of ineffectiveness of counsel must be firmly founded in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex.App.-Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex.Crim.App.2003). From the record received by this Court, which includes the hearing on Barnett's motion for new trial, Barnett bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984).

We apply the two-pronged Strickland test handed down by the United States Supreme Court to determine whether Barnett received ineffective assistance of counsel. Strickland, 466 U.S. 668, 104 S.Ct. 2052. Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n. 14 (Tex.Crim.App.2006). Thus, we need not examine both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

First, Barnett must show that counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms. Id. at 687–88, 104 S.Ct. 2052. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered sound trial strategy. Id. at 689, 104 S.Ct. 2052; Ex parte White, 160 S.W.3d 46, 51 (Tex.Crim.App.2004); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). Therefore, we will not second-guess the strategy of Barnett's counsel at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App.1979); Hall v. State, 161 S.W.3d 142, 152 (Tex.App.-Texarkana 2005, pet. ref'd).

The second Strickland prejudice prong requires a showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome, meaning that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Smith, 286 S.W.3d at 340.

Ineffective assistance of counsel has not been shown to have occurred in any way asserted on appeal, because (a) failure to get Rowland's testimony may have been reasonable trial strategy, (b) failure to seek a finding on lesser included offenses was not substandard, (c) failure to find and submit mitigating evidence was not substandard, and (d) not objecting to particular evidence was not substandard. We examine each complaint in turn.

a. Failure to Get Rowland's Testimony May Have Been Reasonable Trial Strategy

Barnett asserts, on appeal as...