Runnels v. State

• Decision Date: 30 June 1993
• Docket Number: No. 09-91-233,09-91-233
• Citation: 860 S.W.2d 545
• Parties: John Wayne RUNNELS, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 545

860 S.W.2d 545

John Wayne RUNNELS, Appellant, v. The STATE of Texas, Appellee.

No. 09-91-233 CR.

Court of Appeals of Texas Beaumont.

June 30, 1993.

Discretionary Review Refused Oct. 20, 1993.

Michael A. McDougal, Conroe, for appellant.

Daniel Rice, Dist. Atty., Michael R. Davis, Asst. Dist. Atty., Conroe, for state.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BURGESS, Justice.

A jury convicted John Wayne Runnels of murder. The court assessed punishment at forty years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant raises three points of error.

Point of error one asserts: "The appellant was denied the effective assistance of counsel guaranteed him through the Sixth and Fourteenth Amendments to the United States Constitution." Point of error two contends: "The appellant was denied the effective assistance of counsel guaranteed him through Article I, Section 10 and 19 of the Texas Constitution." Appellant concedes that the Texas Court of Criminal Appeals has held that the Texas constitutional and statutory provisions did not create a standard in ineffective assistance of counsel cases which is more protective of a defendant's rights than the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Vasquez v. State, 830 S.W.2d 948 (Tex.Crim.App.1992); Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986). The two points of error shall be addressed together.

In reviewing a claim of ineffective assistance of counsel, we must determine whether the trial attorney's representation fell below an objective standard of reasonableness under prevailing professional norms and thus failed to constitute reasonably effective assistance. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-2065, 80 L.Ed.2d at 693. If the attorney's performance did fall below the accepted standard, we must determine whether there is a reasonable probability that but for trial counsel's deficient performance the result of the trial would have been different. 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

Appellant directs his first complaint to his attorney's performance during jury selection. We find no support in the record for any of appellant's various assertions under this complaint. We have no record that any persons were challenged for cause without stated reason. If the trial court did excuse some jurors who were not challenged by either party during voir dire, it is certainly possible the court was acting within its authority to excuse jurors. TEX.CODE CRIM.PROC.ANN. art. 35.03 § 1 (Vernon 1989); see Narvaiz v. State, 840 S.W.2d 415 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993). Nor do we find trial counsel failed to challenge any juror whom we can affirmatively determine under the record should have been challenged for cause. Hathorn v. State, 848 S.W.2d 101, 119 (Tex.Crim.App.1992); compare Knight v. State, 839 S.W.2d 505, 510 (Tex.App.--Beaumont 1992, no pet.). We also have no record that trial counsel wasted peremptory challenges on unreachable venirepersons, or that an unacceptable juror served on the jury as a result of the injudicious exercise of peremptory strikes. Although appellant complains the prosecutor misstated the law during voir dire, he has failed to cite any authority suggesting the comments could constitute reversible error if preserved for review, or otherwise enlighten the Court how the result would have been different given an objection to any of the prosecutor's comments. See Miniel v. State, 831 S.W.2d 310, 324 (Tex.Crim.App.1992). Appellant has not even suggested that any misstatement of the law by the prosecutor could not be cured by the court's charge to the jury.

Appellant next complains counsel was deficient in failing to suppress appellant's written and videotaped confessions. We cannot evaluate appellant's complaints regarding the videotape because appellant did not cause the videotape to be filed with the record on appeal. As for appellant's written confession, appellant does not attack the validity of the confession other than to claim that appellant was not in a coherent, intelligible state when he was apprehended, and that appellant was not brought before a magistrate before being given an opportunity to confess. Appellant admitted he had been using "crystal" in the three days between the murder and his arrest, but we cannot conclude from the evidence at trial that appellant was incapable of making a voluntary statement. We cannot conclude that the confessions were inadmissible. There are any number of reasons why competent and effective counsel might have reached the same decision, not least of which could have been that he realized the effort would be futile. Hathorn, 848 S.W.2d at 119. Appellant testified on his own behalf during guilt/innocence, did not deny committing the homicide, but contended that the victim was his best friend and that the victim attacked appellant in a "Viet Nam flashback." It appears trial counsel employed a trial strategy which sought to use the confessions to support both appellant's self-defense theory and the "sudden passion" element of the lesser included offense. Appellant has not overcome the presumption that the challenged action might be acceptable trial strategy. See Delrio v. State, 840 S.W.2d 443, 447 (Tex.Crim.App.1992); Miniel, 831 S.W.2d at 323.

Appellant next complains that trial counsel failed to object to "utter hearsay concerning extraneous offenses involved in by the Appellant which ... must have affected the jury." The state's theory was that while in a drunken rage appellant beat, repeatedly stabbed the victim, then robbed the corpse for drug money. Appellant's record reference directs the Court to the State's direct examination of a Sheriff's Department detective who testified that he learned from Boo Barnhill that the radio had been removed from the victim's van, that they found a radio at the scene and appellant identified it as the one removed from the van. Appellant presents no case authority in support of the implication that the testimony was inadmissible hearsay, makes no attempt to distinguish TEX.R.CRIM.EVID. 801(e)(2), and does not suggest how the jury might conceivably been influenced by this testimony. This argument shall not be considered by the Court because it has not been adequately briefed. TEX.R.APP.P. 74(f); Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.), cert. denied, 506 U.S. 997, 113 S.Ct. 595, 121 L.Ed.2d 533 (1992).

Appellant next complains counsel was deficient because he failed to request an instruction on "reasonable doubt." Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), was applied prospectively only and therefore could not have supported error in a case tried in 1989. Of the arguments presented in appellant's brief which are directed at counsel's performance in the guilt phase of the trial, none meet both prongs of the Strickland test.

Finally appellant argues that trial counsel was deficient in failing to put on evidence in the punishment phase. The standard of review for the punishment phase of a non-capital trial is not that of Strickland v. Washington. We analyze effectiveness of counsel during the punishment phase of non-capital offenses under the standard of Ex parte Duffy, 607 S.W.2d 507, 514 (Tex.Crim.App.1980). We first determine whether counsel was reasonably likely to render effective assistance, then determine whether counsel reasonably rendered effective assistance. Craig v. State, 825 S.W.2d 128, 130 (Tex.Crim.App.1992). Appellant did develop a record in a motion for new trial hearing. There is no record of evidence which counsel had available to him which he failed to present to the court in punishment. Appellant suggests he could have testified in his own behalf to exhibit "some part of his sorrow and remorse." Appellant did testify on his own behalf during trial on guilt or innocence. Appellant did not testify on motion for new hearing that any part of the sorrow and remorse he might feel was not communicated to the court during the course of the trial. Appellant has failed to meet his burden under Duffy. Points of error one and two are overruled.

Point of error three urges...