Sims v. State, s. 05-89-00597-C

• Decision Date: 13 March 1991
• Docket Number: 05-89-00598-CR,Nos. 05-89-00597-C,s. 05-89-00597-C
• Citation: 807 S.W.2d 618
• Parties: Billy Ross SIMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 618

807 S.W.2d 618

Billy Ross SIMS, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-89-00597-CR, 05-89-00598-CR.

Court of Appeals of Texas,

Dallas.

March 13, 1991.

Rehearing Denied April 26, 1991.

John H. Hagler, Dallas, for appellant.

Teresa Tolle, Asst. Dist. Atty., Dallas, for appellee.

Before ENOCH, C.J., and ONION ¹ and CARVER ², JJ.

OPINION

ENOCH, Chief Justice.

Billy Ross Sims appeals his two convictions for murder. Sims pleaded guilty to both offenses, and the court assessed punishment at two life sentences pursuant to a plea bargain. In his pro se appeal, Sims claims his guilty pleas were not entered voluntarily and knowingly because he was denied the effective assistance of counsel. In addition, Sims claims the evidence is insufficient to support his convictions and raises other procedural and constitutional challenges. After a thorough review of the record, including all pre-trial and post-trial hearings, as well as all of Sims's submissions to this Court, the trial court, and the Court of Criminal Appeals, we affirm the convictions.

FACTS

On December 1, 1988, Sims went to the day-care center his ex-wife utilized. Sims's daughter was in the custody of his ex-wife, and he had been denied visitation rights. After waiting for his ex-wife to arrive, Sims approached the car in which his ex-wife arrived and shot her and a male companion multiple times. In exchange for the State's agreement to dismiss a capital murder charge and thus avoid the possibility of a death sentence, Sims waived his right to a jury trial and pleaded guilty to each offense.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his pro se brief, and his amendment to that brief, Sims raises ten separate points of error alleging he was denied the effective assistance of counsel. Each point separately raises specific instances in which Sims claims his attorney's representation was deficient. Under this claim, Sims must first show that counsel's representation fell below an objective standard of reasonableness and, secondly, that there is a reasonable probability, a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would be different had counsel's assistance at trial been effective. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App.1986).

A. Change of Venue/Motion for Recusal

Sims claims that trial counsel failed to file a motion for a change of venue and a motion to recuse the trial judge, as Sims requested. This was required, Sims asserts, because: (1) the adverse publicity regarding his case prevented him from receiving a fair trial; (2) a combination of influential persons in the community was aligned against him which denied him due process; and (3) the judge supposedly made comments to the press which demonstrated bias against Sims.

Due process provides for a change of venue when a defendant demonstrates that he cannot obtain an impartial jury or a fair trial where venue lies. Henley v. State, 576 S.W.2d 66, 69 (Tex.Crim.App.1978). Simply because a criminal case is publicized in the media does not give rise to a prima facie claim of prejudice which entitles a defendant to a change of venue. Beets v. State, 767 S.W.2d 711, 743 (Tex.Crim.App.1987), cert. denied, 492 U.S. 912, 109 S.Ct. 3272, 106 L.Ed.2d 579 (1989). An appellate court has the duty to make an independent evaluation of the circumstances surrounding the trial. Henley, 576 S.W.2d at 75. Sims had waived his right to a jury trial, and presents no evidence to support his claim of prejudice or conspiracy. Nor did he present any evidence at trial despite the trial judge's direct questions to Sims, asking Sims if he had any objection to the trial taking place. There is no support in the record that counsel's failure to present a motion for change of venue rendered his assistance ineffective.

Likewise, the record does not support Sims's claim of bias on the part of the judge. The record shows that at a pretrial hearing, Sims claimed to have read a newspaper article in which the judge allegedly made comments to the media regarding his case. Based upon questioning by the judge, Sims was unable to produce the article, or information regarding its publication. Other than Sims's bare assertions concerning the alleged article, the record does not show that any such article existed. Failure to present these motions, therefore, would not be an omission which supports a claim that Sims's trial counsel was ineffective.

B. Failure to Investigate

Sims next argues that trial counsel was ineffective because he failed to pursue and present evidence and testimony, thus depriving Sims of a substantial defense. See Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974). Sims claims that he was not given the opportunity to present his version of the facts at the scene of the crime, or of the background of his relationship with his ex-wife which led to the events of December 1st. In his supplemental brief, he further alleges that a newspaper article which the trial judge mentioned contained a defensive theory he was prevented from presenting at trial. He also contends that the trial court committed error by giving consideration to facts outside the record concerning this alleged defense.

Regarding the newspaper article, the record is devoid of any evidence that the article had any effect on the trial court or, in fact, contained any viable defense which could have affected the outcome of his trial. The newspaper article Sims refers to is mentioned in the same colloquy between Sims and the trial judge involving the article Sims claimed showed bias. As with the first article, Sims fails to support his allegation by demonstrating what information was presented in the article. This is fatal to this portion of his claim that trial counsel's assistance was ineffective or that the trial court considered facts outside the record. Further, we note that the standard in reviewing a claim of prejudicial publicity does not require total ignorance of the facts and issues. Beets, 767 S.W.2d at 743.

C. Failure to Present Testimony

Sims's principal complaint regarding the effectiveness of counsel hinges on the failure to call those witnesses whose testimony would provide background evidence concerning Sims's relationship with his ex-wife, or to provide him the opportunity to fully present his version of the events surrounding the day of the murders. In several duplicitous points, Sims claims that this evidence would constitute a defense to his actions.

Recognizing that Sims pleaded guilty to these offenses based upon a plea bargain, we are unable to glean whether these points are limited to failure to call witnesses at the punishment phase of the trial or if Sims is complaining that he was forced to plead guilty because of the refusal by his trial counsel to call these witnesses at the trial of the guilt/not guilty phase. Without resolving this question, we will address Sims's points as presented.

First, we conclude that Sims apparently confuses motive with defense. He seems to postulate that evidence as to why he shot and killed his ex-wife and her companion would somehow mitigate his offense. Motive is not a necessary element to sustain a conviction for murder. Garcia v. State, 495 S.W.2d 257, 259 (Tex.Crim.App.1973); Lerma v. State, 632 S.W.2d 893, 895 (Tex.App.--Corpus Christi 1982, pet. ref'd). Second, Sims seems to believe that evidence of his wife's infidelity and the details of his custody battle would create a defense to murder, or at least reduce the offense to voluntary manslaughter. See TEX.PENAL CODE ANN. § 19.04 (Vernon 1989). However, sudden passion that arises from previous provocation will not qualify to reduce murder to voluntary manslaughter. Jones v. State, 687 S.W.2d 425, 428 (Tex.App.--Dallas 1985, pet. ref'd). Finally, the record affirmatively shows that Sims was allowed to testify at trial before the court accepted his guilty pleas. He was questioned by defense counsel, who elicited the information regarding the ex-wife's infidelity and the details of the custody battle. In addition, Sims was questioned at length by the trial judge. At the punishment phase, a letter written by Sims outlining his background and his feelings about the case was read into the record. Many of Sims's requested witnesses testified at that time. The record does not lead us to the conclusion that counsel was ineffective in protecting Sims's interests by failing to make the court aware of Sims's "defenses."

In a related matter, Sims claims he was denied the opportunity to present what appears to be a self-defense argument based on the fact his ex-wife's companion was armed. However, Sims testified that he did not know the companion was even in the car until he got up to the car. He also testified that he was watching the companion while he was shooting his wife. Sims then shot the companion before his weapon was even exhibited. On these facts, no self-defense issue was raised. Therefore, failure to urge it is not ineffective assistance.

D. Improper Consolidation/Double Jeopardy

Sims complains that his trial counsel was ineffective because he allowed the two murder cases to be tried together. The trial judge extensively questioned Sims before accepting the guilty pleas. On this issue the record shows:

THE COURT: I don't know if I need to ask this or not, but I will: Do you have any objection to the Court hearing both of these cases today at the same time?

THE DEFENDANT: I thought that's what we were doing.

THE COURT: We are doing that, but do you have any objection to it?

THE DEFENDANT: No.

There is no provision in the law prohibiting the consolidation of prosecutions; consolidation may occur if the defendant consents, as Sims did here. Guia v. State, 723 S.W.2d 763, 767 (Tex.App.--Dallas 1986, pet. ref'd). Sims claims that he consented to...