Owens v. State, 10-94-310-CR
| Decision Date | 21 February 1996 |
| Docket Number | No. 10-94-310-CR,10-94-310-CR |
| Citation | 916 S.W.2d 713 |
| Parties | Frederick OWENS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Frank Blazek, Smither, Martin, Henderson, Morgan, DeLong & Blazek, P.C., Huntsville, for appellant.
David S. Barron, District Attorney, Tuck Moody McLain, Asst. District Attorney, Bryan, for appellee.
Before CUMMINGS and VANCE, JJ.
Frederick Owens was charged by indictment with the felony offense of aggravated assault. TEX.PENAL CODE ANN. § 22.02(a) (Vernon 1994). He pled not guilty to the indictment, and a jury convicted him as charged. Owens pled "true" to an allegation of a prior felony conviction and the jury assessed punishment at the maximum of twenty years in prison. Owens appeals on the sole point that he was denied the effective assistance of counsel. We will reverse the judgment and remand for a new trial.
Owens' "girlfriend," Katashia Merchant, alleged in a complaint that on or about January 26, 1994, Owens assaulted her "by beating [her] with [a] wooden club." Merchant handwrote a three-page statement to police on January 30 describing in detail how she was "beaten by Frederick Owens." The next day, she signed the complaint charging him with aggravated assault with a deadly weapon. Because he was unable to post bond, Owens remained incarcerated for over seven months until his trial on September 13. He was, however, released on furlough during this time and maintained close contact with Merchant.
Despite her original allegations against Owens, Merchant refused to testify against him at trial. After accepting an offer of prosecutorial immunity from the State for her testimony, she claimed that she had fabricated her original allegations against Owens. When presented with photographs of her injuries taken by police, Merchant testified as follows:
After the trial judge instructed her twice to answer the question, she said her friend "Samuel Jones" from Houston was responsible. Merchant maintained that her written statement was accurate, "[b]ut the person in it is not, [and] the place is not."
According to Merchant's testimony, she allowed her "innocent" boyfriend, Owens, to be charged for the crime "[b]ecause he made me mad" by When asked why she waited seven months to tell someone in authority that she lied, she responded that she was unable to get the charges dropped because she didn't know who the "DA" was.
...
The prosecutor presented only two witnesses: 1) Officer James Muniz, the officer that heard Merchant's original story and took her written statement; and 2) Merchant. Because Officer Muniz had no direct knowledge of the incident, Merchant was the only witness presented that could provide direct evidence of Owens' guilt. Since Merchant refused to implicate Owens at trial, Owens contends that but for her original written allegations, there would have been no evidence of his guilt. Owens claims that he was denied the effective assistance of counsel when his court-appointed attorney failed to object to or request a limiting instruction for Merchant's "out-of-court allegation" that Owens assaulted her.
The first reference to Merchant's "out-of-court allegation" against Owens occurred immediately prior to trial when the State sought to offer statements that Merchant made to Officer Muniz when she reported the incident. The State argued that Merchant's prior statements were admissible as substantive evidence under the "statement against interest" exception to the hearsay rule because they included embarrassing details that tended to make her an object of "disgrace" at the time she made them. TEX.R.CRIM.EVID. 803(24). The court entertained extensive argument on the matter and heard testimony from Officer Muniz outside the presence and hearing of the jury. The court ultimately sustained defense counsel's objection that Rule 803(24) was inapplicable:
The next reference to Merchant's "out-of-court allegation" against Owens occurred when the prosecutor asked Merchant to acknowledge that she had, indeed, made such an allegation:
...
Although Merchant denied that her statement correctly portrayed the event, her affirmative reference to the fact that she made the specific allegation was admitted without objection or limitation.
The next reference to the written statement occurred when the prosecutor attempted to establish the identity of the actual document:
The prosecutor proceeded, without objection or request for limitation, to impeach Merchant with the statement by comparing her account of events on the stand implicating Samuel Jones with the events described in the statement implicating Owens. Finally, the prosecutor offered Merchant's written statement, as well as her original signed complaint against Owens, for admission. Both were admitted without objection or request for limitation.
...
The standard by which we review the effectiveness of counsel at the guilt-innocence stage of trial was articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986).
To prevail, Owens must first show that his trial counsel's performance was so deficient, because he made errors of such a serious nature, that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In other words, he must show that his trial counsel's performance failed to constitute "reasonably effective assistance," i.e., that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App.1993). Second, he must demonstrate that his counsel's deficient performance so prejudiced his defense that he was deprived of a fair trial, i.e., that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 694, 104 S.Ct. at 2068.
A claim of ineffective assistance of counsel must be determined upon the particular facts and circumstances of each individual case. Jimenez v. State, 804 S.W.2d 334, 338 (Tex.App.--San Antonio 1991, pet. ref'd). A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App.1991). Stated another way: Counsel's competence is presumed and the party asserting ineffective assistance must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound trial strategy. See id. Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded. Jimenez, 804 S.W.2d at 338. The fact that another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance of counsel. Id.
The contents of Merchant's prior written allegation and signed complaint were the only evidence of Owens' guilt presented at trial. Our determination of whether Owens received effective assistance of counsel will, therefore, necessarily depend upon the admissibility of that evidence. If the evidence was admissible for all purposes, defense counsel's failure to object or request a limiting instruction would not have prejudiced Owens' defense so as to deprive him of a fair trial. See Menchaca, 854 S.W.2d at 130-31....
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...court that out-of-court statements made by the complaining witness are not admissible against the State under Rule 801(e)(2). Owens v. State, 916 S.W.2d 713, 717-18 (Tex.App.-Waco 1996, no pet.); Halstead v. State, 891 S.W.2d 11, 12-13 n. 1 (Tex.App.-Austin 1994, no pet.); see 2A STEVEN GOO......
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...71 S.W.3d 865 (Tex.App.—Fort Worth 2002, pet. ref’d ); Ramirez v. State, 987 S.W.2d 938 (Tex.App.—Austin 1999, no pet. ); Owens v. State, 916 S.W.2d 713 (Tex.App.—Waco 1996, no pet. ). However, another case has held that the complainant is a “party opponent” for purposes of admission of a p......
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Evidence
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