Opinion filed October 9, 2008



### In The 

# Eleven th Court of Appeals

__________ 

### No. 1 1- 07 -0 00 45 -CR

____ ____ __ DON ALD BR

AD LEY FA RRIS, Ap pellant
V.
STA TE OF TEX AS , A ppellee

On App eal from the 238th Distric t Court
Midland County, Texas
Trial Court Cause No. CR 31745

M E M O R A N D U M O P I N I O N The jury convicted D onald B radle y Fa rris of a g g ravated assault with a deadly wea pon. The trial court a ssessed punishment at two y ear s confineme nt and a $1,000 f ine. We aff

irm the judg ment of convic tion, rever se the judg ment as to Fa rris’s punishment, and re m an d for a new he aringon punis hme nt. I n his first and sec ond issues on appea l, appellant ar g ues that h e rec eived inef fec tive assistance of counse l at the puni s h m ent and guilt/innocence phases of trial. To pre vail on an ineffe cti v e assist ance of counse l claim, the familiar Strickland test must be met. Strickland v.2

W ashington , 466 U.S. 6 6 8 , 6 9 3 -9 4 (1984). The test in Strickland is properly

applied to the punishment phase of a

non-ca pital case

. Se e He rn an de

z v . S tate , 988 S.W. 2d 77 0, 77 2 (T e x. Cr im. App. 1999). An a

ppellant must establish that his lawy er’ s perf ormance fe l l b elow an objective standard of

rea sonablene ss and that there is a “re asonable probability ” the r esult of the proc eeding would have been differ ent but f or counsel’s defic ient perf ormanc e. Strickland , 466 U.S. at 693-94; Ma lle tt v . S

tate , 6 5 S. W.3 d 5 9, 62 -6 3 ( Te x. Cr im. Ap p. 20 01 ). A reason a ble pr ob a bil ity is a probability

sufficie nt to undermine c onfidenc e in the outcome of the trial. He rn an de

z v . S tate , 726 S.W .2d 53, 55 (Tex. Crim. App. 1986). The purpose of t his two-prong ed test is to judge whether

coun s e l’ s c o n d

u c t s o c o mp r o mi s e d th e p r o p e r f u n c ti o n in g o f th e a dv e r s ar ia l p r o c e s s th a t th e trial cannot be said to ha

ve produc ed a r eliable r esult. Tho mp so n v . S tate , 9 S. W. 3 d

8 0 8 , 8 1 2

- 1 3 ( T e x. Crim. App. 1999). The re view of de fense counsel’s r epre sentation is highly defe rential a

nd presumes that counsel’s actions fe ll within a wide rang e of r easona ble profe ssional assistance. Ton g v. Sta te , 25 S.W .3d 7 0 7 , 712 (Tex. Crim. App. 2000). Appellant must overc ome the pre sumption t hat, under the circ umstances, the c halleng ed ac tion might be conside red sound tria l strateg y . J ac k so n v . S tate , 87 7 S. W.2 d 7 68 (T e x. Cr im. Ap p. 19 94 ); Ha y de n v . S

tate , 1 5 5 S.W.3d

6 4 0 , 6 4 8 ( T e x. App.—Eastland 2005, pe t. ref’ d). To over come the pr esumption of rea sonable prof es s i o nal assistance , “any

alleg ation of ineff

ectivene ss must be firmly founded in the re cord, a nd the re cord must affirmatively

demonstrate the alleg ed inef fec tiveness.” Thompson , 9 S.W .3d at 814. Appellant first a

rg ues that his trial counsel wa s ineffe cti v e i n t he punishment phase of the trial by failing to file an election for the jury to assess punishment and by failing to file an a

pplication for pr obation. I f a f

inding of g uilty is returne d, it is t he re spon s i b i l i t y o f t h e judge to asse ss the p u n is h me n t a

p p li c a b le to th e o f

f e n s e . T EX
. C ODE C R IM
. P R OC
. ANN . art. 37.07, § 2(b) (Ve rnon Supp. 2008). Howeve r, whe re the defe ndant elec ts to go to the jury for punishment, he must make

an e l e c t i o n i n w r i t i n g b e f

o r e t h e c o m m e n c e m e n t o f t h e v o i r d i r e e x a m i n a t i o no f t h e j u r y p an e l

. In that event, the punishment shall be a ssessed by the same jury . Article 37.07, section 2(b). The trial court wa s prohibited by

statute from plac ing a

ppellant on community

s u p er vision for ag g ravated assault wit h a deadly wea pon. T EX
. C ODE C R IM
. P R OC
. ANN . art. 42.12, § 3g (a) (2) ( Ver non Supp. 20 08 ). Th e re fo re , b e fo re he wo uld be e lig ibl e to re c e ive c omm un ity su pe rv isi on , a

pp e lla nt w ou ld3

have to f ile an ele ction for the jur

y to a ssess punishment a

nd would have to f

ile an application for probation. Appellant’s tria l counsel testified at the hear ing on a ppellant’s motion for new trial that she did not file an ele ction for the jur y to a ssess punishment or an application for probation and that she

wa s a wa re tha t the do c ume nts we re re qu ir e d to be fi le d in or de r f or a pp e lla nt t o r e c e ive c omm

un ity supervision. Trial c ounsel further testified that the failure to f ile the re quired doc uments was not trial strateg y . At the hea

ring , the trial cour

t found: Court f inds that the lack of an Application for Probation and th e l ac ko f t he De fe nd ant’ s w ri tte n e le c tio n f or jur y a sse ssm e nt o f p un ish me nt de pr ive d [a pp e lla nt] of his only chanc e of probation on conviction of this c harg e, a dead l y we apon finding , the Court Trial Judge is not per mitted to gra

nt probation. I rre spective of what the jury

might have assessed at the punishment phase, any chanc e of pr obation was forec losed by the absence of a S worn Motion for Probation and the elec tion of the jur y to a sse ss p un ish me nt. Trial Court conc ludes [appellant] ought t o be g rante d a new trial on punishment, but the Trial Court’s power less to do that. Appellant has shown that he re ceive d ineffe ctive assistanc e of c ounsel at the punishment phase of the trial. Appe llant’s first issue on appe al is sustained. I n his second issue on appe al, appe llant compl ai n s t h at trial counse l was ineff ective at the g uil t/i nn oc e nc e ph a se of tr ial b e c a us e tr ia l c ouns e l w a s n ot p re pa re d f or tr ia l, d id n ot c a ll c e rt a in witnesses, and did not meet the re quirements to pursue a motion to recuse the tr ial court judg e. The

rec ord shows that the trial judge reve aled to the parties that he owne d some share s of stock in TXU. The victim in this case wa s working under c ontrac t for TXUat the time of the offe nse. Appe llant’s trial counsel reque sted that the trial court r ecuse itself based upon that interest. An administrative judge assig ned anothe r judg e t o h ea r t h e mot ion to recuse , and that judg e hea rd and de nied appellant’ s motion. Any shortcoming s in the motion were of no ef fec t beca use appe llant rec eived a hea ring on his motion. Appe llant has not shown that his trial counsel wa s ineffe ctive in pursuing a motion to recuse

. Appellant arg

ues that his tria l c ounsel was not pr epar ed for trial and that trial c ounsel failed to call ce rtain witnesses. Appe llant’s trial counsel r equeste d a continuanc e bec ause a petition for discre t ionary

revie w of the de nial of a w rit of mandamus de aling with the disqualification of the4

district attorney ’s offic e was pending in the Tex as C ourt of C riminal Appea ls. The trial court denied the motion f

or continuance and informe d appellant that the c ase w ould proce ed to trial. Appe llant’s trial counsel state d that she was not prepa red to go to trial. Tria l counsel stated that she had not issued subpoenas a

nd that she had not a dequate ly prepa red he r witnesses. The re cord shows that the State called the victim, two police office rs, and the ma nag er of 9-1-1

c a lls fo r t he City of Midla

nd to t e sti fy a t tr ia l. A

pp e lla nt’ s tr ia l c ouns e l c on du c te d th or ou g h c ro sse xami na tio n o f t he State ’s wi tne sse s. Tr ia l c ouns e l c a lled app ell ant, hi s mo the r, and his sis te r t o testify . All of the i ntere sted parties in the a ltercation testified at trial. Trial c ounsel stated that she w as unprepa red f or trial; howeve r, the re cord shows that she made numerous re levant objec tions, arg ued

a mot ion to s up pr e ss s tate me nts ma de by a pp e lla nt, and c on du c te d a

thor ou g h e xami natio n o f a ll wi tn e s s e s
. A p p e ll an t h a s n o t s h o w n th a t h e r e c e iv e d in e f f e c ti v e a s s is ta

n c e o f c o u n s e l a t the g uilt/i nnocenc e phase of the trial. Appe llant’s second issue on a ppeal is over

ruled. I n his fourth issue , a

p p e lla nt contends that the e vidence is both lega lly and fa ctually

insufficient to support his conviction. I n order to deter mine if the evide nce is leg ally sufficie nt, we must review all of the e vidence in the light most favor able to the ve rdict and de termine whe ther any rational trier of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt. Jack son v. Vi rg ini a , 4 43 U. S. 3 07 (1 97 9) ; J ac k so n v . S tate , 17 S.W .3d 664 (Tex. Crim. Ap p
. 2 0 0 0 ). To deter mine if the evide nce is fa ctually sufficie nt, the appellate court re views all o f t h e ev i d ence in a neutra l light. W

ats on v . S tate , 204 S.W .3d 404 (Tex. Crim. App. 2006) (ove rruling in part Zuniga v. Sta te , 1 44 S.W. 3d

47 7 ( Te x. Cr im. Ap p. 20 04 )) ; J oh ns on v . S

tate , 2 3 S. W.3 d 1 , 1 0- 11 (T e x. Cr im. App. 2000); Cai n v . S

tate , 9 58 S.W. 2d

40 4, 40 7- 08 (T e x. Cr im. Ap p. 19 97 ); Cle wis v . S tate , 922 S.W .2d 126, 129 (Tex. Crim. App. 1996). Then, the revie wing court deter mines whether

the evidenc e supporting the verdic t is so wea k that the verdic t is clea

rly wrong and manifestly unjust or whether the verdic t is ag ainst the gre at weight and preponde ranc e of the conflicting e vidence

. W atson , 204 S.W .3d

a t 41 4- 15 ; Johnson , 23 S.W .3d at 10-11. We reviewthe fa ctfinder ’s weig hing of the evidenc e and c annot substitut e our judgme nt for that of the fa ctfinder

. Cai n , 958 S.W. 2d a t 40 7; Cle wis , 922 S.W .2d at 135. Due de fer ence must be g iven to the jury ’s deter

mination, pa

rticularly conce rning the weig ht a nd cre dibilit y of the e vidence

. Johnson , 23 S .W .3 d 1 ; J on es v . S tate , 944 S.W .2d 642 (Tex. Crim. App. 1996). This court has the5

authority to disag ree with the factfinder ’s determination “only when the r ecor d clea

rly indicates such a step is nec essar

y to arre st the occur

renc e of a manifest injustice.” Johnson , 23 S.W .3d at 9. Rich ar d Ca r p e n te r te s ti f ie d a t t r ia l t h a t h e p r e v io u s ly

w o r k e d f o r a c o mp an y th a t c o ntrac ted wi th T XUto d isc on ne c t e le c tr ic a l se rv ic e . O n Jan ua ry 10 , 2 00 6, Carp e nte r r e c e ive d a wo rk or de r t o disconnec t e lectric al service at the residenc e wher e appellant lived with his mother. When Carpe nter

arri ved a t th e re sid e nc e , h e tol d a pp e lla nt h e wa s th e re to d isc onne c t th e se rv ic e . App e lla nt t old Carpente r that he w as not g oing to disconne ct the ser vice. Appe llant then walked a way . Carpente r g ot in the “bucke t” on his truck to lift him to the pol e to di sconnec t the elec trical ser vice. As he was g oing up, Carpenter hear d appellant at the door of the residenc e. Carpe nter looked at appellant, and appellant wa s pointing a pistol at Carpe nter. Appellant fired a shot at Carpente r that hit Carpente r’s bucket truc k. Carpente r eve ntually lowere d the bucke t, got in his truck, a nd called 9- 1-1. Offic er G ary

Kenne dy testified that he r esponded to the call. Off icer Kenne dy asked a ppellant wh a t had h a

p p e n e d , an d

a p p e l l an tr e p l i e d

t h a th e s h o ta ts o m e o n e w h o w a s t r yi n g t o tu r

no f f h is

e le c tr ic ity . App e lla

nt t old Of fi c e r K e nn e dy

that he wa s d e fe nd ing his pr op e rt y . O ff ic e r K e nn e dy

tol d appellant that Car

penter was not on hi s proper

ty . Carpente r also told Offic er K ennedy that someone sh ot at hi m. O ff

ic e r K e nn e dy

we nt i nto the re sid e nc e to ret ri eve the pis tol us e d b y a pp e lla nt. Appellant informe d Offic er K ennedy that his mother was inside the r esidenc e. Ella Christine Far

ris, appellant’ s mother, testified at trial that appellant lives with he r and take s
car e of he r. Kimberly

Ann Hutchins, appe llant’s sister, testified that she pa id the bills for her mother , Ella. Hutchins stated that she timely paid the elec tric bill for her mother but that there was a rec ording

err or with the compa

ny . Hutchins was a

ble to g et Ella’s elec tricity restore d on the same day that it was disconnec ted. Ap pe lla nt t e sti fi e d that he d id n ot t hr e a te n a nyon e on Janu ary 10 and tha t he did no t in te nd

to hurt anyon e . Ca

rp e nte r t old

a pp e lla nt he wa s g oin g to dis c onne c t the e le c tr ic ity , a nd a pp e lla nt t old him that he wa s not and that the bi ll had been paid. Appellant then went into the house a nd called 9- 1-1. Appellant testified t h at he did not wait until police office rs ar rived be fore confr onting Car penter

. Appellant ac knowledg ed firinga shot but testified that he did not shoot di rec tly at Carpe nter a

nd that he wa s only

trying to stop Car

penter from turning off the elec tricity

. The re cord shows that appellant p l ac edan o t h er

ca l l t o 9 -1 -1 , an d

t h e r ec o rd i n g fr o m t h at ca l l wa s p l ay edfo r t h e j u ry
. On t h e r ec o rd i n g,6

app e lla nt st a t e s t h a th e s h o ta tC ar p e n t e r
. W e f

i n d t h a tt h e e v i d e n c e i s b o t h l e g a l l y an d f a c tua lly sufficie nt to support appellant’ s conviction for ag g ravated assault with a dea dly wea pon. Appellant’s fourth issue is overr

uled. I n h is thir d is su e on

a pp e a l, a pp e lla nt argue s that the tr ia l c ourt e rr e d in re fu sin g to su pp re ss h is statements to Offic er K ennedy . We reviewa trial c ourt’s ruling on a mot ion to suppress evidenc e for an abuse of discre tion. Ba le nti nev . S tate , 71 S.W .3d 763, 768 (Tex. Crim. App. 2002). We must give g re a t de fe re nc e to t

he tr ia l c ourt ’s fi nd ing s o f h ist or ic a l f a c ts a s lon g a s th e re c or d s up po rt s th e fi nd ing s. Gu zm an v . S

tate , 955 S.W .2d 85 (Tex. C ri m . App. 1997). B eca use the trial c ourt is the exclusive fa c tf ind e r, the a

pp e llate c ourt

re vie ws e vid e nc e a dd

uc e d at th e su

pp re ssi on he ari ngin th e li ght mo st favor able to the trial court’s ruling

. Car mo uc hev . S

tate , 10 S.W .3d 323, 327 (Tex. Crim. App. 2000). Ap pe lla nt argue s that his statem ent s to Of fi c e r Ke nn e dy we re take n in vio latio n of his F if th Amendment rights and without re ceivingthe prope r admonishments pursuant to Miranda v. Arizona , 38 4 U .S. 43 6 ( 19 66 ). Th e re c or d s ho ws that O ff ic e r Ke nn e dy re sp on de d to a ca ll of a dis tur ba nc e wi th

wea pons. Upon arr iving at the scene , Offic er K ennedy spoke with Carpente r, and Carpe nter stated that a man shot at him. When Offic er Kennedy asked appellant what happene d, appellant sa id that he had shot at C arpe nter. Acc ording to Offic er Kennedy , appellant wa s not in custody at the time he made the statement. Ap pellant told Office r Ke nnedy that the wea

pon was in the house. O ffice r Ke nnedy later pla c e d a pp e lla nt u nd e r a rr e st a nd re a d h im h is Miranda war nings. The prose cution ma

y not use statements stemming f rom custodial interrog ation of the de fenda nt unles s it d e mon str a te s th e us e of pr oc e dura l sa fe g ua

rd s e ff e c tiv e to s e c ur e the pr ivi le g e a g a ins t self-inc rimination. Miranda , 384 U.S. at 444. “Custodial interrog ation” is questioning that is ini tiated by law e nf or c e me nt o ff

ic e rs a ft e r a

pe rs on ha s b e e n ta

ke n in to cus to dy

or oth e rw ise de pr ive d o f h is fre edom of action in any

signific ant way

. Id

. I f an investigation is not at an ac cusatoria l or custodial sta g e , a pe rs on ’s F ifthAm e ndme nt r ig hts have no t y e t c ome int o p lay and the vo lun tari ne ss o f t

ho se rig hts is not implicated. Me lto n v . S tate , 790 S.W .2d 322, 326 (Tex. Crim. App. 1990). Appellant’s statement that he shot at Ca rpente r was not ma de as a result of custodial interr og ation. See id. at 325- 26. The tr ia l c o u rt d id n o t a b u s e it s d is c r e ti o n w h e n it d e n ie d a p p e ll an t’ s mo ti o n to s u

p p r e s s the statements made to Of

fice r Ke nnedy . Appellant’s third issue on a ppeal is over

ruled.7

We affir m the judgme nt as to appellant’s c onviction, reve rse th e judg ment at to punishment, and

rema nd for a new h ea ri n g o n p unishment pursuant to T EX
. C ODE C R IM
. P R OC
. ANN . art. 44.29(b) (Ve rnon Supp. 2008).

J I M R. W RI GHT CH I EF JUSTI CE

October 9, 2008 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.