NO. 07-99-0248 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C OCTOBER 5, 2001

______________________________ STEVEN DEW AYNE EVANS, Appellant
v. THE STATEOF TEXAS , Appellee

_________________________________ FROM THE 181 ST DISTRICT COURT OF POTTER COUN TY; NO. 38,589-B; HON. SAMUEL C. KISER , PRESIDING

_______________________________ Before QUINN, REAVIS AND JOHN SON, J.J. Steven Deway ne Evans (appellant) appeals his conviction for mu rde r. His three points of error concern a purported denial of his Six th Am endme nt right to confron t his
accus er, the legal and factual sufficiency of the evidence, and the effec tiveness of h is counsel. We affir m. Backgr ound On October 25, 1999, a pa rty was held at Independe nce Hall in Amarillo , Texas. Between 200 to 3 00 p eop le attended sam e. During the event, an argum ent erupted2

between Ke ith Aust in (Austin) and the m other of his two children, Shannon Hicks ( Hicks). The cause of t he argum ent was Hicks’ dancing w ith appellant’s brother, Bernard, w ith whomshe also had a child. In short, A ustin wasjealous. Thereafte r, appell ant’s sister, Brenda, approached an d e xc hanged words with Aust in. Following this, appellant and Au stin them selves “had w ords,” which w

ords escalated into a physical altercation between the two. Security personnel intervened and escorte d the com batants to the parking lot. A num ber of people were presen t in the parking lot at t he time. Furthermore, Austin’s fri end, Ed w ard , wanted to goove r an d co nfr ont app ellan t. Au stin adv ised him against it and went bac k inside the dance ha ll to retrieve his jacket. Mom ents passed beforemu ltiple gunshots were heard com ing fro m thepar king are a in f ron t of theHal l. The poli ce were notified. Upon their arrival, more gunfire was heard. Investigation then revealed that Edward had been shot. H e later died at the scene. The State indi cted app ellant for murder. A jury of his peers convicted him of the accusation. Issue One: Confrontation Clause Appellant initial ly argues that the trial court denied him his Six

th Am endme nt right to confront

his accuser. Thi s alleg edly occurr ed when he attempted to impeach the State’s soleeyew itne ss, Ar

tra il Tillmon, via a “prior conviction.” According to the record, Tillmon had been indicted for intentionally and know ingly threatening a fe m ale with bodily inj ury byuse of a deadly weapon. Upon h is plea of guil ty, the adjudication of his guilt was deferred. Moreover, the status of the prosecution rem ained the sam e at the time Tillmon1 Giv en that appellant was granted deferred adjudicati on, the supposed convict ion was not one. That

is, because he had been granted deferred adjudicati on, he had not been conv icted of the off ense. So, the cha rac ter iz ati on of the cha rge as a “priorconvicti on” wa s inaccurate. Ho wever, we us e that moniker here for the s ake to c larity.

2 The rule states

that “for p urposes o

f attacking th e cred ibility of a witn es s,” a liti gant may t ender ev idence that the witness had been “conv icted of a crime . . . if elici ted from the witness or established by public record but on ly if the crime was a felony or inv olv ed moral turpitude . . . .” T EX
. R. E VID
. 609(a ).
3 The ph rase “vuln era blerel atio ns hip ” was coin ed in Carroll v. State , 9 16S. W.2d 49 4 ( Te x. C rim

. App . 19 96) and d escr ib es a circum stance wherein the witness maybe prone to color testim ony in f av or of the State in return for leniency viz a pen di ng c ri m in al pro secu ti on. Mor eov er, if such a ci rcu m stan ce e xi sts, evi denceof s ame is

ad miss ib le ev en though it does not involve a final conviction. Maxwell v. State , 48 S.W .3d 196, 199-200 (Tex. Crim . App. 2001). Fi nally, as noted in Maxwell and Moren o v. State , 22 S.W .3d 482 (Tex. Crim . App. 1999), ev idence that would not be adm issi bl e und er R ul e 609 bec ause the conv icti on was neither final, a fel ony, nor one of moral turpitude could be admissible if it i llustra ted the re quis ite vulne rab le relationship. Giv en this, it i s incumbent upon one attem pting to gain t he admission of ev idence ina dmis sib le under Rule 609 to inv oke the v ulnerable rel ationship theory i n a manner reasonably inf ormi ng 3 was called to testi fy against appellant. 1 Appellant told the court below that he “want[ed] to use this

prio r co nvic

tion to i m pea ch [Tillm on] , es pec ially since he’s got [sic] on t he stand
now and portrayed him self as a pr ison off icer , an d an off

icer .” S o to o did appellant allege thathe had “a right to use this, since [Tillmon] got a criminal offense toim pea ch h im with.” The trial court

disagreed and prevented him from using the “conviction” because it neither involved a felony nor a crime of moral turpitude. We overrule the issue. As evinced by thecircums tances described above, appellant sought to utilize the “priorconviction” to generally impeach Tillmon’s c redibili ty via Texas R ule of Evidence 609. 2 Furtherm ore, the tr ial cou rt u ndo ubtedly con str ued theeff

ort as suc h be cau se it concluded that the evidence did not com ply with Rule 609. Nowhere did appellant mention his constitutional right to confront his accusers . Nor did he endea vor to gain a dmittance of the evidence (despite Rule 609) by arguing that it purported ly ev ince d a v ulne rab le rela tion shipbetween Tillmon and the State an d, therefore, constituted evidence of bias of interest. 3the trial co urt of his reliance upon that the ory. 4 Instead, his ground was limited to adm ission via Rule 609 and for the purposes contem plated by that rule. Yet, on appeal, appellant argues thatthe trial court erred because the evidence w as adm iss ible to show

bias or interest despite Rule 609. In other w ords, appellant attem pts to invo ke t he v ulne rab le re latio nsh ip the ory bef oreus w itho ut h avin g m ent ione d it be lo w. Having failed to mention it below a s a ground supporting adm ission of the evidence, he waived it for appellate purposes. T EX . R. A PP . P. 33.1(a); Broxton v. State , 909 S.W. 2d 912, 918 (Tex. C rim. Ap p. 1995) (holding that the grounds supporting an obj ection uttered below m ust co m port w ith the gro unds as serted on appea l).

Issue Two: I

nsufficiency of the Evidence In his second point of error, appellant alleges thatthej ury ’sver dict lacked le gally and factually sufficient evidentiary support. We di sagree and overrule the point. Standard of Review Rather than reite rate thewell-se ttled sta ndards of re vie w applicable to claims of legal and factual i nsuffici ency, we cite the litigants to Jacksonv. V irg inia , 443 U.S. 30 7, 99 S. Ct. 2781, 61 L. E d.2d 560 (1979); King v. State , 29 S.W.3d 556 (Tex . Crim . App. 2000); Cle wisv. State , 92 2 S. W .2 d 1 26 (T ex. Crim. A pp.1996); and Moreno v. State , 755 S.W.2d 866, 867 (Tex. C rim. Ap p.1988) for explanations of s ame. Applica tion ofStandard Bel ow, Tillmon testified thathe saw appellant ho l d a re vo l ve r s i de wa ys , p oi nt sa me at Edward, and shoot. Furtherm ore, Edward died of gun shot w ounds. This con stitute s5

so me evidence upon w hich a rational j ury cou ld co nclu de b eyo nd area son abledoubt that appellant intentionally a nd knowingly cause d the de ath of E dwa rd by shooting him with a dea dly weapon, a s charged in the indictmen t. Thus, legally sufficient evidence existed to support the j ury’s verdict of guilty. Thatthe evidence of guilt was n ot free of contradiction and that the credibili ty of witnessesma y have been subj ect to question does not requ ire u s to conclude that the verdict was f

actually insupportable. Those circumstances me rely resurrected issues for the j ury to r

esolve. And, b ased up on our re view of the e ntire record, we cann ot say that the verdict was

clearly wrong or m anifestly unjust. Issue Three: I

neffective Assistance of Counsel Final ly, appellant alleges that his trial coun sel was ineffective because counsel failed to 1) m ake an offer of proof s ufficient to satisfythe predicate for adm itting the “prior conviction” discussed under the first issue and 2) obj ect to th e Stat e’s final argument during the guilt-innocence phase. Standard of Review The standard of review applicable to claims of ineffective counsel is well-settled and adeq uately

explained in Tong v. State , 25 S.W.3d 707 (Tex. Crim . App. 2000), cer t

. denied, __U.S.__, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001), Thompson v. State , 9 S.W.3d 808 (Tex. Crim . App. 1999), Beck v. State , 976 S.W.2d 265, 266 (Tex.A pp.--Am arillo 1998, pet. ref'd), and Rodriguez v. State , 955 S.W.2d 171, 176-77 (Tex. App. –Am arillo 1997, no pet.). We need not reiterate it.6

Applica tion ofStandard Proper Predi

cate Atthe time of trial, precedent existed holding that evidence o f a defe rre d adjudication was not

adm issible to show

vuln era bility

to S tate inf

luen ce a s a pos siblebias
or mo t ive to l ie. Hoyos v. State , 951 S.W.2d 503, 508 (Tex. App. –Houston [14 th Dist.] 1997), aff’d 982 S. W .2d 419 (Tex. Crim . App. 1998) quoti ng, Jones

v. State , 843 S.W.2d 487 (Tex. Crim . App. 1992), cert. deni ed , 507 U .S. 1 035 (199 3). This precedent wasnot nullifi ed until the rendition of Maxwell v. State , 48 S.W .3 d 1 96 (T ex. Crim . A pp. 200 1) in June of 20 01 , s ome two y ea rs afte r t ri al be lo w. Gi ve n t hi s, we cannot fault trial counsel for om itting to assert a legal argum entwhich contradicted aut hority existing at the tim e of trial

. See Vaughn v

. State , 931 S.W.2d 564 (Tex. Crim . App. 1996). A t the very least,
cou nsel’s om ission may have been based on reasonable trial tactic, i.e. the desi re t o eschew invoking untenable legal argument and the reby alienat ing both t he court and jury. No Objecti

on to Closi

ng Argument During its closing argum ent in the guilt / innocence phase of the trial, the prosecution stated:

I will tell you the truth. W ithout anyequivocation, without even on e ounce of w

aitin g, I w ill te ll yo u, you b elieve A rtr ail Till mon. If you don’t you vote not guilty and you can set this m urderer back on the streets. Thiscom m ent purp ortedly ev inced an a ttem pt by t he prose cutor (t hrough h is ow n unsw orn testimony) to bolster the credibility of Tillmon. As su ch it was allegedly obje ctionable, and7

because trial counsel did not object, he w as ineffective, according to appellant. We disagree. First, assum ing the com ment was obj ectionable, we note that the decisi on to object to particular statement

s uttered during closing argumen tis frequently a m atter of legitimate trial strategy. Hubbard v. Stat e , 770 S.W.2d 31, 45 (Tex . App. –Dallas 198 9, w rit ref’d)

. Thus, evidence of counsel’s strate gy, if any, is crucial to determining wh ether he was ineffective. Furtherm ore, not hing of record indicat es why c oun sel a t ba r w ithh eld objection. W ithout such an ex plan atio n, we cannot say that the record before us suf fici ent lyrebuts the strong presum ption that counsel exercised rea son ableprofessional judgm ent. Thompson v. State , 9 S.W.3d at 808; Beck v. State , supra . Second, and a gain assum ing the com ment was obj ectionable, nowhere does appellant attem pt to illus tra te “ the re [ w as] a re aso nab le probabi lity tha t, but for counsel ’s [one supposed] unprofessional error[], the resu lt of the proceeding woul d h ave been different.” Tong v. State , 25 S.W.3d at 712. Nor, afte r reviewing th e e nt ir e r ec or d, can we say that such a probability existed. Accordingly, we af

firm the j udgme nt of the trial court.

Per Curiam

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