### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-03-00650- CR

M ic hae l Wa yne Ca r pe nt e r , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 22ND JUDICIAL DISTRI CT NO. CR-03- 327, HO NORAB LE GARY L. STEEL, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N Ap pe lla nt Mic ha e l Carp e nte r wa s c on vic te d of a g g ra vate d a ssa

ult wi th a de a dly
wea pon, enhanc ed to habitual off ender , and sente nced by

a jury to forty y ear s’ conf

inement. See Te x. Pe n. Cod e Ann. § 2 2. 02 (We st 2 00 3) ; se e als o id . § 1 2
. 42 (West 2003). I n three issues, he
c omp la ins that the weapon wa s im pr op e rl y c ha ra c te ri zed (a s a “ sle dg e hamme r” ), and

in a fo ur th i s s u e, ap p el lant asser

ts that he rec eived inef

fec tive assistance of counse l. We will affirm the jud g me nt.
BACK GR OUND

L onnie Doug hty

beg an dating appellant in J anuar y 2003. Subsequently , they decide d to liv e tog e the r. On Ap ri l 12, D ou g hty and a pp e lla nt h a d b e e n r

unnin g e rr and s a

nd vis iti ngfr ie nd s.2

Doug hty testified that she and appe llant had bee n in arguments previously , but they had not had a dispute that day . After

returningto the ir home, Doug hty was not f eelingwell, so she laid down a nd fell asleep. She was awake ned when appellant threw a box fan at he r, hitting he r. Doug hty “jumped up” an d g o t dr e s s e d w h il e a p p e ll an t w a s y e ll in g an d s c r e a mi n g , a c c u s in g D o u g h ty o f c heating on him. Although appe llant left the bedr oom, he l ater returne d, held her down on the bed, a nd “had the sledg ehammer

in his hand.” Appe llant asked her twice, “ Do y ou want me to do this? ” and swung the sledg ehammer

at her head, but did not hit her. At some point, appellant rele ased he r, and she fled to a n e ig hb o r ’ s h o u s e . A p p e ll an t f o ll o w e d h e r to th e n e ig hb o r ’ s h o u s e an d D o u g h ty c a ll e d 911, reporting that a

ppellant told her he was g oing to g et a gun. Appellant lef t the neig hbor’s house, returne d to his, and g ot into his vehicle. H e drove to the neig hbor’s house, then left. As appe llant was t u r n in g the corne r, Doug hty

saw police office rs appr oachingand wa s able to desc ribe a ppellant’s
ve hic le and

loc a tio n to the 91 1 o pe rator s. Hay s Co u n t y

deputy sheriff Ang elo Floira

n responde d to the 911 call at approximately

1:00 a.m. As Floira

n approa ched the are a, he saw a truck matc hing the descr iption of a pp e lla nt’ s tr uc k d ri vin g awa

y . F loi ra n in itiat ed a sto p a

nd arr e ste d a

pp e lla nt. Ap pe lla

nt t old Floira n there was a

g un in the t ruck, but no g un was found. I nstead, Floiran found a “sledg ehammer ”
a lon g wi th o the r t oo ls.

Appellant testified in his own defense, averr ing that he neve r assa ulted Doug hty , and identifying the wea

pon as a “ three -pound roc k hammer” rathe r than a sledg ehammer
. He state d that the hammer

was ne ver in the house , and wa s alway s in his truck for use in his occupation a s a mason. Appellant wa s convicted by the jury of ag g ravated assault with a deadly wea pon. See id . § 22.02.3

He plea ded true to the enhanc ement par ag raphs, whic h rec ite that he has be en pre viously convicted five times of burg lary

of a ha bitation, onc e of theft, and once of unauthorized use of a motor vehicle. See id . §§ 30.02, 31.03, 31.07 (West 2003 & Supp. 2005). This appe al followed.
DI SCU SSIO N I n his first three issues, appellant complains that the wea pon he alleg edly

swung at Doug hty was incor rec tly char acte rized as a “ sledg ehammer ,” and in his four th issue, he conte nds that he re c e ive d in e ff

e c tiv e a ssi sta

nc e of c ouns e l.
Charact eriz ation of

the deadly w eapon The indictment cha

rg ed that appe llant knowingly and intentionally

threatened Doug hty with immi nent bodily

injury , and during the commi ssion of the off ense, “ did then and ther e use and e x hibit a deadly wea pon, to-wit : a s ledg e hammer .” Appe llant contends that the ind ic tme nt’ s a lle g a tio n th a t he us e d a sle dg e hamme r wa s insu ff ic ie ntl y sp e c if

ic to pr ov ide him

wi th constitutional or statutory notice that the “thre e-pound rock hammer” introduced into evide nce w as the ac tual wea

pon used. See Te x. Cod e Cr im. Pr oc . a rt s. 21 .0 4, 21 .1 1 ( Wes t 19 89 ); see also U. S. Const. amend. VI ; Tex. C onst. art. I , § 10. He also contends that the tr ial court e rre d in overruling his obje ction to the State’s cha rac terization of the wea

pon as a sledg ehammer , and that the e vidence was leg all y an d f

a c tu a ll y in s u f

f ic ie n t to p r o v e th a t th e w e a p o n w a s a s le d g e h a mm e r b e y o nd a
re a so na ble do ub t a s a lle g e d in

the ind ic tme nt. I n assessing the leg al sufficie ncy of the evidenc e to suppor t a conviction, we c onsider all of the e vidence in the l ight most favor able to the jury ’s ver dict and dete rmine whe ther, ba sed on4

the evidenc e and r easona

ble i nfer ence s, a rational jury could have found the a ccuse d g uilty of all of the elements of the offe nse bey ond a rea sonable doubt. Se e Dr ic ha s v . S tate , 175 S.W .3d 795, 798 (T e x. Cr im. Ap p. 20 05 ); Gu e v ara v . S tate , 152 S.W .3d 45, 49 (Tex. Crim. App. 2004). I n a fa ctual-suf

ficienc y analy sis, the evidenc e is viewed in a neutra l light. Drichas , 1 7 5 S
. W
. 3 d

at 7 9 9 (c i t i n g Cle wis v . S tate , 9 22 S.W. 2d

12 6, 13 4 ( Te x. Cr im. Ap p. 19 96 ))
. Th e re is only one question to be a

nswere d in a fac tual-suffic iency revie w: Considering all of the evidenc e i na n e u t r a l l i g h t , w a s a

j u r y r a t i o n a l l y

j u s t i f i e d i nf i n d i n g g u i l tb e y o n d

a r e a s o n a b l e d o u b t ? Zuniga

v . S tat e , 144 S.W .3d 477, 48 4 -8 5 (T ex . Crim. App. 2004). Even if w e disag ree with the jury ’s conclusions, we must exercise appropr iate defe renc e in or der to avoid substit uting our judgme nt for that of the jury , particula

rly in matters of c redibility
. Drichas , 1 7 5 S
. W
. 3 d at 7 9 9 (c i t i n g Cle wis , 922 S.W .2d at 133). The re a

re two way s in which the evidenc e may be insufficient: either the evidenc e supporting the finding , considere d alone, is too wea k to support the jury ’s finding b ey o n d a
rea sonable doubt or the c ontrave ning evidence may be so strong that the State could not have met its burden of proof

. Id
. (c i t i n g Zuniga , 144 S.W .3d at 484-85). I f the de fenda

nt does not object to a de fec t, e rror , or irregularity of for m or substance in an indi ctment or infor mation before the date on which the trial on the me rits commence s, he waives a nd forf eits t h e ri gh t t o object to the def ect, e rror , or irre g ularity

and he ma

y not raise the objection on appe al or in any other postcon v i ction proce eding . Tex. Code Crim. P roc. a rt. 1.14 (West 2005). First, app el lant appea rs to be complainingthat there was a varia nce be tween the
wo rd ing o f t h e i n d i c t m e n t an d t h e e v i d e n c e p r e s e n t e d a t t r i a l
. V ar i an c e s ar e f a t a l o n l y if “ it i s5

materia l and prejudices the de fenda nt’s substantial rig hts.” Go lli ha r v . S tate , 46 S.W .3d 243, 257 (T e x. Cr im. Ap p. 20 01 ). Whe n r e vie wi nga va ri anc e , w e mus t de te rm ine wh e the r t he ind ic tme nt, as written, infor

med the def

endant of the charg e aga inst him sufficie ntly to allow him to prepar e an
a de qu a te de fe ns e a t tr ial , an d w he the r p ro se c uti on un de r t he de fi c ie ntl y

dr a ft e d in dic tme nt w ou ld subject the de fenda

nt to the risk of beingprosec uted later for the sa me cr ime. Se e id
. A p p e l l an tar g u e s t h a tt h e S t a t e “ c o u l d h a v e w o r d e d

t h e i n d i c t m e n tm o r e g e n e r a l l y, by sayingthat a

pp e lla nt u se d a ‘s le dg e hamme r o r h e a vy hamme r’ ” and that “ du e to t he sp e c if ic ity of the plea ding, a

ppellant could be pr osecute d ag ain, if the a lleg ed victim suddenly came forwa

rd with memory

rec overe d under hy

pnosis, a nd some other hammer, and said appe llant assaulted her twice that nig ht.” We disag ree .

The indictment a lleg es that a sledg ehammer was used, and, assuming that there was
a var iance , the State’s fa ilure to identify the wea pon more g ener al ly

does not constitute a fatal
va ri a nc e un d e r

t h e f a c t s i nt h i s c a s e . A l t h o u g h a p p e l l an ta s s e rt s t h a tt h e S t a t e i n c o r r e c t ly char acte rized the actua l phy sical objec t, we find that a s written, the indictment informed a ppellant of the c harg e ag ainst him sufficiently to allow him to prepare an ade quate de fense at trial. Appe llant does not asser

t that he was sur

prised by the ac tual phy sical objec t introduced by the S t ate as the deadly wea pon, and identified by the victim a s a “sledg ehammer .” Instead, he asser ts that the “roc k hammer” was not re ally

a “sle dg ehammer .” Appe llant’s defe nse wa s that he did not assault the victim—not that he assaulted the victim with a diffe rent we apon. Unde r these c ircumstanc es , we
c ann ot d e te rm ine ho w— a ssumin g the re wa s a va ri anc e —s uc h v ari anc e a ff e c te d a pp e lla nt’ s a bil ity to prepa re f or an adequa

te defense at trial. Moreove r, prosecution under the indictment as dra fted6

will not subj ect a

ppellant to the risk of beingprosec uted later for the sa me cr ime. The we apon that the State alleg ed wa s used by appellant was introduced into evidenc e and viewed by the jury . There is no dispute reg ardingwhat objec t the State alleg ed was used by appellant—he mere ly challeng es its chara cter ization. Under the record in this case , we f ind that to the ext ent a va

rianc e existed, it was not material, a

nd did not prejudice a

ppellant’s substantial rig hts. See G ollihar , 46 S.W .3d at 257. Fur thermore , the re cord doe s not ref lect that appellant ever

objected to use of the ter

m

“ sle dg e hamme r” in t

he ind ic tme nt p ri or

to tr ial on the me ri ts. Th e re fo re , to the e xten t he is complaining of a de fec t, error , or irre g ularity of form or substance in the indictment, a ny err or wa s waived. See Tex. Code Crim. P roc. a rt. 1.14. Ad dit ion a lly , th e we a

po n at is su e in t

his case was sp e c if

ic a lly c ha ra c te ri zed a s a “sledg ehammer ” by

Doug hty at trial and ide ntified as the we apon used by appellant a g ainst her on April 12 t h at re s u l t ed in the cha rg es for which he w as convic ted. Appellant did not object whe n Doug hty identified the we apon as a sledg ehammer , or whe n office r F loiran initially stated that they
rec overe d a “sledg ehammer ” from appellant’ s truck. Thus, appellant failed to pr eser ve err or re lated to the char acte rization of the evidenc e at tria l as a “ sledg ehammer .” See Tex. R. App. P . 33.1.

Appellant conte nds that he did not a ssault Doug hty with any wea pon—including the
wea pon introduced into evide nce a s a sledg ehammer
. T h e jury was e ntitled to believe Doug hty ’s te sti mony that the we a

po n intr od

uc e d wa s a sle dg e hamme r, and in any e ve nt, the jur y wa s a ble to observe the evidenc e and w eapon itself a nd was in the be st positi on to determine w hether the ph y sic al ob

jec t in tr od

uc e d w a s a

sle dg e hamme r t

hat w a s u se d in

the a ssa ult be y on d a re a so na ble doubt. See D richas , 1 75 S.W. 3d a t 79 9; Cle wis , 922 S.W .2d at 133.7 Considering all of t he evide nce in the lig ht most favorable to the jury ’s ver dict, we ho ld t hat th e e vid e nc e su

pp ort in g t he fi nd ingthat th e we a po n u se d in

the a ssa ult wa s a sle dg e hamme r, c on sid e re d a lon e , is no t to o w e a k to su pp or t th e jur y ’s fi nd ing be y on d a

re a so na ble do ub t and that th e c on tr a ve nin g e vid e nc e was no t so stro ngthat th e State c ou ld n ot h a ve me t it s burden of proof. See D richas , 175 S.W .3d at 799. Additionally , viewing the evidenc e in a ne utral light, we hold that the jury was rationally

justified in finding that a

sledg ehammer

was used be y ond
a re asonable doubt. Se e id
.

We o ve rr ule a pp e lla nt’ s f ir st, se c on d, and

thi rd iss ue s.
Ineff ect ive assistance of counsel I n his fourth issue, appe llant argues that h i s trial counsel r ender ed inef fec tive
a ssi st ance be c a

us e : ( 1) he int

ro du c e d in to e vid e nc e a

le tte r t hat D ou g hty

wr ote to a

pp e lla nt w hil e he wa s in jail, which was the only other “ substantive evidenc e the jury had bef ore the m” except for conflictingtestimony

by Do u gh t y

and appe llant; (2) he f ailed to re quest a mistrial afte r the prosec utor commented that appellant wa s a “liar ” and the judge instructed the jury to disreg ard the statement; (3) a fter tr ial counsel objected t o the charac terization of the wea pon as a “ sledg ehammer ,” h e f a il e d to o b je c t t o th e c o u rt’ s a ll e g e d “ c o mm e n t o nth e w e ig h t o f th e e v id e n c e in

v io lati o no f

T e x. Code Crim. Proc. 38.05” whe n the cour t responded to the objection by stating “ Well, I believe [the objection] is s emantics a

nd not a matter of law. We have it in front of us. We can c all it a hammer, a sledg ehammer , whateve r. So Ig uess y our objec tion is overruled. I t is what it is.”

Un d e r the Strickland

s t an d ar d , ap p el l an tm u s tfi rs td em o n s t ra t e that his trial counse l’s perf ormanc e wa s deficie nt. Sc he an e ttev . S tate , 144 S.W. 3d 50 3, 50 9 (T e x. Cr im. Ap p. 20 04 ); see8

Strickland v. W

ashington , 466 U.S. 668, 687 (1984). Next, he must show that his counsel’s def icient perf ormanc e was so serious that it pr ejudiced his de fense , rende ring the trial unfa ir and the ve rdict suspect. Id
. Appellate review of defense counsel’s represe ntation is highly defe rential a nd presumes that counsel’s c onduct fe ll within t h e wide ra ng e of r easona

ble and pr ofessional a ssistance. Sc he an e tte , 1 4 4 S
. W
. 3 d

at 5 0 9 (c i t i n g Bo nev . S

tate , 77 S.W .3d 828, 833 (Tex. Crim. App. 2002)). To ove r c o me th is p r e s u mp ti o n , th e a ll e g a ti o n s o f in e f f e c ti v e n e s s mu s t b e f

ir ml y f o u n d e d in the
rec ord, and the r ecor d must affirmatively demonstrate the alleg ed inef fec tiveness. Ma lle tt v . S

tate , 65 S .W.3d 59, 63 (Tex. C rim. App. 2001). The fac t that another attorney may have pur sued a dif fe re nt t a c tic a t tr ia l is ins uf fi c ie nt t o p ro ve a

c la im o f i ne ff

e cti ve assista

nc e of c ouns e l. Sc he an e tte , 1 4 4 S
. W
. 3 d

at 5 0 9 -1 0 (c i t i n g Mc

Fa rla nd v . S tate , 8 45 S.W. 2d

824, 84 4 ( Te x. Cr im. App. 1992)). Under

most circumstance s, the rec ord on direc t appea l will not be suff icient to show that counsel’s r epre sentation was so de ficient a nd so lacking in tactica l or st rate g ic dec ision-making as to overc ome the strong presumption that counsel’s conduct was rea sonable and profe ssional. Id
. (c i t i n g Bone , 77 S.W .3d at 833). Ineff ective a ss i s t ance claims are not built on retrospective speculation; rather, they

must “ be firmly

founded in the r ecor d.” Id . Appellant is requir ed to prove by a pr e po nd e ra

nc e of the e vid e nc e that th e re is, in f a c t, n o p la

us ibl e pro fes si on al reas on fo r h is counsel’s omission. Bone , 77 S.W .3d at 836.

A motion for new tr ial was not filed i n this case , and the rec ord does not contain any evidenc e reg arding the professional choice s made by appellant’ s trial counsel. We ar e not per mitted to speculate about trial counse l’s rea sons for introducingevidenc e, not re questing a mistrial, or notWe a lso no te a pp e lla nt’ s a dmi ssi on

in h is b ri e f t

hat, al tho ug h tr ia l c ouns e l di d n ot r e qu e st 1 a mistrial, “this alone would not wa rra nt reve rsal, as the court’s pr ompt curative instruc tion and criticism of the prose cutor wa s sufficient to re medy the situation.” 9 objecting to the cour

t’s statement. Se e Sc he an e tte , 1 44 S.W. 3d at 51 0. With ou t any

e vid e nc e to
overc ome the pre sumption, we must presume that appe llant’s trial counsel a cted pur suant to a
r e a s o n a b l e t r i a l s t r a t e g y. Se e id
. 1 We overrule appellant’ s second issue.
CO NC LU SION Havingoverr

uled appe llant’s issues, we a ffirm the judg ment.

__________________________________________ W. Kenneth L aw, Chief Justice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: June 9, 2006 Do No t Pu

bli sh