Hawkins v. State

• Decision Date: 04 September 2008
• Docket Number: No. 11-06-00309-CR.,11-06-00309-CR.
• Parties: Nathaniel HAWKINS Jr., Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

278 S.W.3d 396

Nathaniel HAWKINS Jr., Appellant, v. STATE of Texas, Appellee.

No. 11-06-00309-CR.

Court of Appeals of Texas, Eastland.

September 4, 2008.

Rehearing Overruled October 23, 2008.

Kurt M. Noell, Tyler, Oscar William Loyd II, Gilmer, for appellant.

Matt Bingham, Dist. Atty., Tyler, for appellee.

Panel consists of WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

JIM R. WRIGHT, Chief Justice.

The jury convicted Nathaniel Hawkins Jr. of the offense of aggravated sexual assault. The jury also made an affirmative finding regarding a deadly weapon allegation and assessed Hawkins's punishment at confinement for life. We affirm.

On appeal, Hawkins maintains in his first issue that the trial court erred when it denied his motion for mistrial made after a juror informed the trial court that the juror had just learned (from the testimony) that a hammer and mask had been found behind his house during the investigation of this offense. In his second and final issue on appeal, Hawkins claims that his trial counsel afforded ineffective assistance of counsel in some fourteen named instances. The State has chosen not to favor us with a brief and has, therefore, confessed error. We are required, however, to make an independent examination of the merits of the issues presented for review. We are limited in that examination to the arguments advanced in the trial court. Saldano v. State, 70 S.W.3d 873, 884 (Tex.Crim.App.2002); Isham v. State, 258 S.W.3d 244 (Tex.App.-Eastland 2008, pet. filed).

There is no attack on the legal or factual sufficiency of the evidence. However, we believe that a brief summary of the evidence is necessary.

The testimony shows that, within less than one hour after the twenty-year-old victim had opened her place of employment at 8:00 a.m. for the day's business, she was threatened and sexually assaulted, both orally and vaginally, and that police officers had Hawkins in custody for committing the crimes. The victim called 9-1-1 and reported the crime at 8:34 a.m.; Hawkins was arrested at 8:43 a.m. while the victim was still talking to the 9-1-1 officer. Hawkins was arrested in close proximity to the place where the assault took place and was wearing the same clothing that the victim said that he was wearing at the time of the attack. The police found a hammer and a black nylon stocking in close proximity to the place of the attack and the place where the police arrested Hawkins. The victim had reported that her assailant was wearing black hosiery over his face and had a hammer with which he threatened her as he made her go into a storage room, remove all of her clothing, and forced her on her knees as he penetrated her first orally and then vaginally. Hawkins threatened to kill her if she told. He also told her to act like she liked it. The victim testified that, when Hawkins heard the sound of an ice machine dumping ice, he must have thought that someone was coming in. The victim escaped to a bathroom, and Hawkins left.

The victim positively identified Hawkins as the man who threatened and sexually assaulted her. Various types of materials and substances for DNA testing were gathered from the victim as well as from Hawkins by police and by a sexual assault nurse examiner. This DNA testing positively connected Hawkins to the sexual assault.

After a lunch break, the trial court's bailiff informed the judge that one of the jurors had something that he needed to tell him. The trial court instructed the bailiff to tell the juror to put what he wanted to say in writing. The juror wrote a note to the trial court that read:

Dear Judge, I live at 201 North Hearon. I didn't know that Whitehouse police found a hammer and mask at my address until this morning in your courtroom. Nobody talked to me at any time this past year about it. Thanks.

Maintaining that, because the juror would have personal knowledge of the facts of the case, Hawkins's attorney moved for a mistrial. The trial court overruled the motion. On appeal, Hawkins argues that he was denied a fair and impartial jury as "guaranteed by the Sixth Amendment of the United States Constitution, as well as Article I, § 10 of the Texas Constitution," and that TEX.CODE CRIM. PROC. ANN. art. 35.16(a)(6) (Vernon 2006) provides that a person is subject to a challenge for cause if he is a witness in the case.

When a trial court denies a motion for mistrial, we review that denial for an abuse of discretion. See Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App.2004). Only highly prejudicial and incurable errors will necessitate a mistrial. Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim. App.2003).

While one is entitled to challenge a potential juror for cause if that person is a witness in a case, such a person is not disqualified to serve as a juror. See TEX. GOV'T CODE ANN. § 62.102 (Vernon Supp. 2007). One of the cases upon which Hawkins relies is Petrey v. State, 158 Tex.Crim. 658, 258 S.W.2d 808 (1953). There, Lemke was a compurgator on a change of venue affidavit. He was also a witness at the hearing on the motion for change of venue. He had talked to the defendant after the charges of rape had been filed against the defendant. Lemke had also contributed money to help pay for the defendant's attorney's fees. The trial court granted the state's challenge for cause against Lemke. The Court of Criminal Appeals found no error. Petrey, 258 S.W.2d at 809.

Another case upon which Hawkins relies is Rubenstein v. State, 407 S.W.2d 793 (Tex.Crim.App.1966). Rubenstein is the "Jack Ruby" case (shooting of Lee Harvey Oswald). There, service of witnesses as jurors is discussed in a concurring opinion where it was recognized that ten persons on the jury had actually seen the shooting on television.

Wyle v. State, 777 S.W.2d 709 (Tex. Crim.App.1989), is another case upon which Hawkins relies. In Wyle, the defendant was charged with capital murder. Potential Juror Shotwell had been called to the scene of the crime by someone in the sheriff's office. As the director of the only funeral home in the county, Shotwell was obliged to remove the body. He was at the scene for a couple of hours and saw the body of the victim as well as the blood at the scene. Shotwell visited with the officers while at the scene of the crime because he knew all of those who were investigating the crime. He also transported the body to the medical examiner's office. Shotwell had also directed the funeral services for the victim. He was a witness at a hearing to transfer venue of the case. The trial court overruled appellant's challenge for cause. Wyle, 777 S.W.2d at 711-12. The Court of Criminal Appeals held that the trial court erred when it overruled the challenge because it should have been apparent that Shotwell was a witness in the case.

The case before us is distinguishable from those relied upon by Hawkins. In those cases, the record contained evidence that clearly showed that the potential jurors were witnesses. Here, the juror did not even know that the hammer and the black hosiery had been found behind his house until the officer testified that the items had been found there. Further, there is nothing in the record beyond mere conjecture as to what the juror knew about the case, if anything.

The final case upon which Hawkins relies in support of this issue is Reyes v. State, 30 S.W.3d 409 (Tex.Crim.App.2000). Reyes dealt with the issue of completion of a trial with eleven jurors when one juror became disabled after the trial had started. See TEX.CODE CRIM. PROC. ANN. art. 36.29(a) (Vernon Supp.2007). The case involved a juror's mental condition or emotional state. No such evidence is presented here.

Hawkins has not shown that the trial court abused its discretion when it denied the motion for mistrial. We overrule the first issue on appeal.

Hawkins asserts in some fourteen instances that he received ineffective assistance from his trial counsel. In order to prevail on a claim of ineffective assistance of counsel, an appellant must establish that his lawyer's performance fell below an objective standard of reasonableness and that there is a "reasonable probability" the result of the proceeding would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App.1986). The purpose of this two-pronged test is to judge whether counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App.1999).

The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). An appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768 (Tex.Crim.App.1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex.App.-Eastland 2005, pet. ref'd). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)).

Generally, the record on appeal will not be sufficient to show that trial counsel's representation was so lacking as to overcome the presumption of reasonable conduct. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). We do not inquire into trial strategy unless no plausible basis exists for trial counsel's actions. Johnson v. State,...