Wilson v. State

• Decision Date: 02 December 1999
• Docket Number: No. 05-97-02195-CR,05-97-02195-CR
• Citation: 15 S.W.3d 544
• Parties: (Tex.App.-Dallas 1999) LUTHER D. WILSON, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 544

15 S.W.3d 544 (Tex.App.-Dallas 1999)

LUTHER D. WILSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-97-02195-CR

Court of Appeals of Texas Dallas.

Dec. 2, 1999

Order Published Feb. 24, 2000.

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F96-29667-M

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices LAGARDE, JAMES, and ROACH.

OPINION

LAGARDE, Justice.

Luther D. Wilson appeals his conviction for aggravated sexual assault. After the jury found appellant guilty, the trial court sentenced appellant to life imprisonment. Appellant brings six points of error contending: (a) the evidence was insufficient to support an unadjudicated extraneous offense offered at the punishment phase; (b) appellant was denied effective assistance of counsel at trial; and (c) appellant was deprived of his constitutional rights to due process and due course of law. We overrule the points of error and affirm the trial court's judgment.

FACTUAL BACKGROUND

On April 21, 1996, Cricket Cooper was washing her car when a man approached her. The man pushed Cooper into her car. The man hit her and told her to "shut up" or he would kill her. Cooper kept screaming and struggling and honking the horn as the man continued to hit her and remove her clothes. The man kissed Cooper's mouth and breast and then put his tongue in her vagina. He then pulled down his pants and was trying to insert his penis in Cooper's vagina when he stopped, pulled up his pants, walked back to his car, and drove away. Cooper tried to memorize the license number of the car driven by her assailant and tried to write it down when she found pencil and paper, but the number she wrote down was to a car registered to a man in Detroit, Texas. However, that number was similar to the license number of appellant's car.¹ Cooper found a towel in her car, which appellant's wife identified as belonging to her and appellant. Cooper identified appellant as her assailant.

During the punishment phase, Sheila Trujillo testified that on the night of June 10, 1995 she had returned home from an evening with friends. She was removing her makeup when a man grabbed her from behind and threw a sweater over her head. The man said, "Don't make a sound or I'll kill you." Trujillo told the man she could not have sex with him; Trujillo testified that she was recovering from surgery for "female cancer." The man forced her onto the bed and was removing her clothes when Trujillo's roommate arrived, knocked on the door, and asked Trujillo if she was "okay." Trujillo screamed, "he's trying to rape me, make him stop, he's trying to rape me." The man ran out of the apartment past Trujillo's roommate and her boyfriend, Alex Orozco. Orozco chased the assailant and tackled him, but the man got up and continued running. When they reached the corner, the man stopped, turned around, pulled up his shirt, and told Orozco he was going to shoot him. Orozco got a "good look" at the man and, not wanting to get shot, stopped chasing him. Orozco identified appellant as the man whom he chased out of the apartment and down the street.

PUNISHMENT EVIDENCE

In his first point of error, appellant contends the trial court erred in denying appellant's motion to disregard the evidence of the unadjudicated extraneous offense because the evidence was factually insufficient. After the State rested in the punishment phase, appellant asked "the Court not to consider the testimony heard in regards [sic] to the Trujillo incident in that we feel the State has failed to meet its burden . . . ." The trial court denied this request.²

Under article 37.07, section 3(a) of the code of criminal procedure, the trial court may admit evidence of an extraneous crime or bad act that the trial court determines has been shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2000).

In Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996), the court of criminal appeals clarified the roles of the trial court and the factfinder in the admission and consideration of unadjudicated extraneous offense evidence at the punishment phase. The trial court determines the admissibility of the unadjudicated extraneous offense evidence, and the factfinder (the jury, if requested, or the trial court) determines whether the unadjudicated extraneous offense was proven beyond a reasonable doubt. See id. at 953.

Appellant cites no case where an appellate court has reviewed the sufficiency of the evidence of an unadjudicated extraneous offense admitted under article 37.07, section 3(a). Nor are we aware of any cases holding that the sufficiency of such evidence is unreviewable. However, in the posture in which appellant presents the issue, our determination is limited to whether the evidence is reviewable for factual sufficiency under the standard set out in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).³

The effect of a factual sufficiency review in a criminal case is to permit a defendant to receive a new trial when the finding of guilt, although supported by legally sufficient evidence, is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis, 922 S.W.2d at 134-36. Thus, the factual sufficiency review insures that a person does not suffer the stigma and hardship caused by a criminal conviction when the conviction is clearly wrong and unjust. No such considerations apply to the punishment phase of a trial. There, the defendant has already been convicted, and the only issue is what punishment, within a set range, should be assessed against the defendant.⁴ The defendant is not found "guilty" of the unadjudicated extraneous offense, and he is punished only for the charged offense, although the factfinder may consider the unadjudicated, extraneous offense in determining what punishment to assess. Unlike review of the defendant's guilt of the charged offense,where the issue before the appellate court is the ultimate issue of the fairness of the defendant's guilt, review of extraneous offenses at punishment concerns only an evidentiary issue and not an ultimate issue concerning the appellant's punishment.⁵ None of the considerations supporting the application of a factual sufficiency review to a finding of guilt applies to the finding at the punishment phase that a defendant committed an unadjudicated extraneous offense.

We hold that the factual sufficiency review, as set out in Clewis v. State, does not apply to a factfinder's determination at the punishment phase that the evidence proves beyond a reasonable doubt that the defendant committed an unadjudicated extraneous offense. We overrule appellant's first point of error.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second through fifth points of error, appellant contends he was denied effective assistance of counsel at trial. The right to effective assistance of counsel is guaranteed under both the federal and state constitutions. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established an authoritative federal constitutional standard for determining ineffectiveness of counsel and for ascertaining when such ineffectiveness is prejudicial. The Texas Court of Criminal Appeals has adopted the Strickland standard for judging claims under the Texas Constitution. See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

The Strickland-Hernandez standard establishes a two-part test to be used in considering ineffectiveness claims. First, an appellant must show that trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions. Second, an appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. See Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. The alleged deficiencies of counsel must be supported by the record. Johnson v. State, 691 S.W.2d 619, 626-27 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985).

We are given further aid in judging the first prong of the Strickland-Hernandez test:

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.

Strickland, 466 U.S. at 690; Hernandez, 726 S.W.2d at 55. Judicial scrutiny of counsel's performance must be highly deferential; a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Thus, an appellant faces the onerous burden of overcoming a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689-90; see also Small v. State, 692 S.W.2d 536, 538 (Tex. App.-Dallas 1985, pet. ref'd).

We do not inquire into defense counsel's trial strategy unless no possible basis exists in strategy or tactics for trial counsel's actions. See Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981). When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. See Jackson...