Cannon v. State

• Decision Date: 11 April 1984
• Docket Number: No. 68328,68328
• Citation: 668 S.W.2d 401
• Parties: Charles Henry CANNON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 401

668 S.W.2d 401

Charles Henry CANNON, Appellant, v. The STATE of Texas, Appellee.

No. 68328.

Court of Criminal Appeals of Texas En Banc.

April 11, 1984.

Larry E. Meyer, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., W. Palmer Kelly, and J. Brian Rains, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

Appeal is taken from a conviction for aggravated robbery. See V.T.C.A. Penal Code Sec. 29.03. Punishment was assessed at ten years confinement in the Texas Department of Corrections.

In five grounds of error, appellant urges: he was denied effective assistance of counsel; the trial court allowed improper jury argument; the trial court impermissibly commented on the weight of the evidence; and, the trial court erred in denying him access to a written report used by a witness for the State. We affirm.

At the trial on the merits, the complaining witness, Charles Cooley, testified that he was robbed at gunpoint by appellant. He stated that appellant had worked for him prior to the offense for a period of two months, and that he had fired appellant. Cooley testified he recognized appellant immediately, since appellant had worked directly under his supervision.

Appellant testified he was at another location, Le Que pool room, at the time of the offense. He presented no other alibi witness, however, and testified that he did not know the names of any alibi witnesses. Appellant's counsel testified that appellant had indeed informed him there were alibi witnesses, but had told him that they would not be cooperative should he try to question them. The record does not reflect whether appellant's counsel was made aware of the names of any potential alibi witnesses.

After the trial on the merits, the trial court granted appellant's counsel leave to withdraw from the remainder of the case because appellant desired to urge ineffective assistance of counsel during post-trial proceedings. The trial judge then appointed attorney Larry Meyer to pursue post trial matters. Meyer filed a motion for a new trial, contending that trial counsel had been ineffective, therefore violating appellant's right to counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. After several hearings, the trial judge overruled the motion for new trial and sentenced appellant.

Appellant subsequently filed a "Motion to Reopen Hearing" based on the affidavit of an alibi witness whose whereabouts were alleged to be unknown prior to trial or prior to the hearings on the motion for new trial. The motion to reopen was summarily denied by the trial court.

Right to counsel has been interpreted to mean the right to reasonably effective assistance of counsel. Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). This does not guarantee the accused errorless representation, but instead affords him an attorney "reasonably likely to render and rendering reasonably effective assistance." MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961); Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974).

The burden of proving ineffective assistance of counsel falls on the appellant. United States v. Killian, 639 F.2d 206 (5th Cir.1981), cert. denied 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 Marino v. United States, 600 F.2d 462 (5th Cir.1979). Such a contention must be proven by a preponderance of the evidence. Marino, supra. In determining whether there was ineffective assistance, the trial as a whole must be looked at--not isolated incidents of counsel's performance. Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977).

At the hearings on the motion for new trial, appellant insisted that trial counsel met with him prior to trial only twice, both for short periods of time. Trial counsel testified at the hearing that his first visit with appellant lasted from one-half hour to one and a half hours, while the second visit was "substantially lengthy."

Appellant asserted that he knew the first names of three alibi witnesses, but that trial counsel would not listen to him and "cut him off." He had testified at trial, however, that he did not ¹ know the names of the alibi witnesses.

Trial counsel admitted at the evidentiary hearing that he had not questioned any alibi witnesses, but added that appellant, when asked, could not give him the witnesses' names nor any identifying characteristics which would assist him in locating them ². He testified that he reviewed the entire contents of the State's file and discussed numerous aspects of the defense with appellant.

Two of the three "alibi" witnesses testified. The first, an employee at Le Que, said she could not positively remember seeing appellant on the day in question. Asked if she had any specific memory about the day of the offense, she replied, "None whatsoever."

The second "alibi" witness who testified was the manager of Le Que. He stated appellant "looked familiar" to him but that he was not too "positive" about recognizing him. He likewise had no recollection whether he saw appellant during the time the offense took place.

An investigating officer testified that appellant told him he had been at the scene of the robbery on the day in question, looking for a job. The officer testified appellant never mentioned being at Le Que on the date of the offense.

We decline to question trial counsel's tactical decisions, such as taking the stand to testify appellant had mentioned to him that there were other people with or near him at the time of the offense. Passmore v. State, 617 S.W.2d 682 (Tex.Cr.App.1981); Blott v. State, 588 S.W.2d 588 (Tex.Cr.App.1980); Ex parte Ewing, 570 S.W.2d 941 (Tex.Cr.App.1978). Furthermore, it is clear that the two witnesses who testified at the evidentiary hearing could not have aided appellant in his alibi defense. As such, failure to call them at the trial on the merits was not a denial of representation. Mays v. Estelle, 610 F.2d 296 (5th Cir.1980); Thomas v. Estelle, 588 F.2d 170 (5th Cir.1979). In addition, because appellant did not describe the witnesses with reasonable particularity, it was not ineffective assistance for trial counsel not to seek them out to investigate them. See Rummel v. Estelle, 590 F.2d 103 (5th Cir.1979), cert. granted 441 U.S. 960, 99 S.Ct. 2403, 60 L.Ed.2d 1064, on remand 498 F.Supp. 793; Gomez v. Beto, 462 F.2d 596, 597 (5th Cir.1972). We find that appellant received reasonably effective representation.

Appellant next contends the trial court committed reversible error in overruling his motion for mistrial after allegedly improper jury argument by the prosecutor. The argument complained of follows:

"First of all, I would like to thank you for your time and the attention that you have put into this case. It hasn't been a very long case and it probably could have been just one witness, it could have been Mr. Charles W. Cooley who would come to the stand and say, 'It was this man that robbed me at gunpoint.' And let me tell you what Mr. Cooley asked me yesterday. He said, 'Who's on trial here?' That's what Mr. Cooley said."

Trial counsel timely objected to this argument and was sustained. The prosecutor was warned by the court to "stay within the testimony." Trial counsel moved for a mistrial and was overruled.

Proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980). Error exists when facts not supported by the record are interjected. Berryhill v. State, 501 S.W.2d 86 (Tex.Cr.App.1973). However, such error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused, into the trial. Todd, supra, at 297.

Clearly, any non-testimonial statement made by Cooley to the prosecutor was outside the record and was improper. We are faced with the determination, however, of whether such was harmful to appellant. Todd, supra.

Mr. Cooley was the only eye-witness for the State. Since no fingerprints or other tangible evidence was obtained from the scene of the crime, the State's case against appellant depended largely upon Cooley's ability to recount the events. Appellant's defense centered around his alibi theory and tended to discredit Cooley's account of the incident. Although the argument did attempt to rehabilitate Cooley by interjecting facts outside the record, there is a lack of harm shown when viewing the totality of the facts and the arguments of the parties.

Appellant next contends the trial court "committed reversible error by violating the presumption of appellant's innocence, and commenting on the weight of the evidence, in that the court's jury verdict form listed 'Guilty' prior to 'Not Guilty' and thereby suggested appellant's guilt to the jury." Since there was no contemporaneous objection made at the time the charge was prepared, any alleged error is waived and nothing is presented for review.

Appellant next contends that the trial court committed reversible error by denying him access to an offense report of a state's witness during cross-examination for purposes of impeachment and in "failing to incorporate a sealed copy of the offense report into the record." We note at the outset that a sealed copy of the officer's report has been included in the record on appeal, thereby rendering this latter contention moot.

An examination of the officer's testimony reveals trial counsel cross-examined him concerning one aspect of the offense report, asking him to "refer to the report." The witness undisputedly authored the report. See Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (Tex.Cr.App.1961). At no time during...