Thompson v. State

Decision Date13 October 1999
Docket NumberNo. 1532-98,1532-98
Parties(Tex.Crim.App. 1999) MARCUS BERNARD THOMPSON, Appellant v. THE STATE OF TEXAS
CourtTexas Court of Criminal Appeals
OPINION

MANSFIELD, J., delivered the opinion of the Court in which MCCORMICK, P.J., and KELLER, HOLLAND, WOMACK, and KEASLER, J.J., joined.

Appellant, Marcus Bernard Thompson, was charged by indictment with the murder of Michael Wagner. A jury determined appellant was guilty, and he was sentenced to twenty years imprisonment.1 An appeal was filed with the Fourteenth Court of Appeals claiming, among other alleged errors, that trial counsel provided ineffective assistance and thus violated appellant's Sixth Amendment right to counsel. Specifically, appellant argued his trial counsel was ineffective for the single error of failing to object and request a mistrial after the introduction of testimony already declared inadmissible hearsay. The Court of Appeals agreed with appellant, reversed the trial court's judgment, and remanded the cause for a new trial. This Court granted the State's petition for discretionary review to determine whether the Court of Appeals erred by addressing appellant's claim of ineffective counsel, and also whether the Court of Appeals erred in determining that appellant successfully proved his trial counsel's perfomance was deficient, and that, but for this deficient performance, the result of the proceeding would have been different.

The Relevant Facts

The evidence introduced at trial established the following events, which occurred in Harris County, on the evening of June 8, 1994. Stacy Pierre and his girlfriend, Amanda Williams, encountered a group of individuals, appellant included, engaged in an illegal dice game. Pierre opted to participate while Williams waited inside the couple's car. As the betting progressed, members of the crowd grew agitated, and Pierre began to fear for his own well-being. He was contemplating the safest way to leave when he saw Michael Wagner, a friend, driving by the game. Pierre flagged Wagner down and asked if he would remain in the area. Wagner agreed and joined Williams in Pierre's car. Pierre's worries were realized when appellant grew angry over the amount of Pierre's final bet, and the game turned into a physical confrontation involving appellant and several individuals. One assailant struck Pierre at least once in the head, but Pierre made his way to the car where Williams and Wagner waited. Wagner, who was in the front passenger's seat, exited the vehicle to provide Pierre the opportunity to climb into the back seat. With Pierre finally in the car, Wagner had resumed his seat just before a bullet was fired through the car's windshield and struck Wagner in the chest. Pierre testified at trial that it was appellant who stood in front of the car and fired one shot from what "looked sort of like a nine millimeter or an Uzi." As Wagner collapsed forward, Pierre ordered Williams to drive off, and she complied. Not before several hours had passed did Pierre and Williams obtain emergency medical intervention. By that time, however, Wagner was already dead.

Successful prosecution of the case against appellant was wholly dependent upon the testimony of Stacy Pierre. Only he could place appellant at the crime scene, firing a gun at the victim. Physical evidence was scarce, and what did exist did not directly implicate appellant as the shooter. In fact, the available physical evidence tended to impeach portions of Pierre's version of the events that night. In the street, where appellant was alleged to have been standing when he fired the gun, crime scene technicians recovered five unspent rounds from a nine millimeter weapon, the same caliber bullet recovered from the victim's body. Also discovered in the same general area was one unspent .25 caliber round, consistent with the caliber gun Pierre admitted he possessed that night. Additionally, inside Pierre's car, behind the driver's seat, was found the spent casing of the same type of .25 caliber bullet. On cross-examination, Pierre admitted that his girlfriend, Amanda Williams, was holding his gun at some point before or during the altercation, but Pierre consistently testified that he heard only a single shot fired that night, and it was fired by appellant.2

During its direct examination of Sergeant Eugene Yanchak, the lead investigator in this homicide, the State attempted to establish that appellant was identified as the shooter by two non-testifying eyewitnesses. At this stage of trial is when defense counsel's alleged error occurred:

PROSECUTOR: And did you show that photo spread to a witness by the name of Lenora Choice?

WITNESS: Yes, ma'am.

PROSECUTOR: Was she able to - -

DEFENSE COUNSEL: I'm gonna object, Your Honor, it calls for hearsay.

PROSECUTOR: I haven't asked the question yet. And he's allowed to say what it is, in fact, the witness did. We're not asking him to say what she said. It's not hearsay, whether or not she was able to make a positive identification.

TRIAL COURT: Wouldn't that be back door hearsay?

DEFENSE COUNSEL: That's exactly what it is, Judge.

TRIAL COURT: I'll sustain the objection.

Despite the successful objection, the State persisted with its same line of questioning and prompted another reaction from defense counsel:

PROSECUTOR: Did you show the witness, Lenora Choice, a photo array?

WITNESS: Yes, ma'am.

PROSECUTOR: And what instructions did you give her when you showed her those photographs?

DEFENSE COUNSEL: Your Honor, may we approach the bench?

TRIAL COURT: Yes.

DEFENSE COUNSEL: Your Honor, unless I'm mistaken, I believe, you sustained my objection to her attempt to try to get in the fact that he showed the photo array to someone, and that person may have positively identified my client. She's trying to get the exact same thing. And she's just trying to back door by asking him those questions. And it's exactly the same thing that I'm objecting to.

This discussion at the bench continued with the trial court judge again sustaining defense counsel's objection that this was an attempt to elicit inadmissible hearsay. The prosecutor continued her direct examination of the witness:

PROSECUTOR: What instructions did you give - - what did you tell the witness, Lenora Choice, about the photographs that you were about to show her.

WITNESS: If she could positive - - if she could identify the defendant or the suspect.

PROSECUTOR: And did you additionally show these photographs to a witness, Amanda Williams?

WITNESS: Yes, ma'am.

PROSECUTOR: What instructions did you give her?

WITNESS: Same instructions.

PROSECUTOR: And did you continue after - - after that - - in your investigation?

WITNESS: Ma'am?

PROSECUTOR: Did you continue your investigation following that?

WITNESS: Yes, ma'am.

PROSECUTOR: Were there any other suspects that you investigated?

WITNESS: No, ma'am.

PROSECUTOR: Did any information come to you to make you believe that there were any other suspects in this case?

WITNESS: No, ma'am.

For reasons not apparent from the trial record or explained after trial, counsel for appellant lodged no objection at this point.

During closing arguments, appellant's trial counsel resumed his objections concerning this testimony after it appeared the State was going to broach the subject of what the non-testifying witnesses told investigators:

PROSECUTOR: . . . If you believe the testimony of Stacy Pierre, that was corroborated by the physical evidence and the other investigation - - you remember Sergeant Yanchak told you, I spoke to witnesses - -

DEFENSE COUNSEL: I'm gonna object, Your Honor. May we approach the bench?

TRIAL COURT: Yes.

DEFENSE COUNSEL: Judge, over and over again she is violating the rules of evidence.

TRIAL COURT: Wait a second. What's the objection? She's talking about what Sergeant Yanchak said.

DEFENSE COUNSEL: That he interviewed other witnesses. What else is she gonna talk about?

TRIAL COURT: That's right, that's inadmissible. What did Sergeant - - wait - -

PROSECUTOR: That evidence is before the jury. He's trying to anticipate what I'm gonna say.

TRIAL COURT: All right. I'll overrule it. Objection is overruled at this point.

Although defense counsel's objection prevented the prosecutor from reiterating the inadmissible hearsay testimony, the identification of appellant by the non-testifying witnesses was apparently on the jurors' minds. Roughly two hours into deliberations, jurors sent out a note asking for the testimony of Sergeant Yanchak "regarding pictures of the lineup. . . [in which] he gave the names of two other people other than Stacy Pierre that also picked out [appellant]." Defense counsel objected and requested a mistrial on the grounds the jury was attempting to consider inadmissible hearsay. In response, the trial court replied, "[A]t one point you did raise an objection, and that was granted. And then there was further testimony to which you did not raise an objection. Your request for a mistrial is denied." Turning its attention to the jury note, the trial court responded to the jury request for Sergeant Yanchak's testimony by replying that "the Court Reporter has reviewed the testimony and not found testimony that corresponds to your request." After ten hours of deliberation over a two day period, the jury returned its guilty verdict. Appellant filed an appeal.

In a published opinion, the Court of Appeals reversed the conviction on the ground appellant received ineffective assistance of counsel. Thompson v. State, 981 S.W.2d 319 (Tex.App. - Houston [14th Dist.] 1998). In its opinion the court specifically held that "[a] lawyer may well choose not to object to hearsay or other inadmissible evidence if it potentially enhances his client's defense or at least does not seriously prejudice it. Such is not the case here, however." Id....

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