### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00445- CR NO. 03-13-00446- CR

Stephen Hol lar, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NOS . CR-1 2-0 625 & CR-13 -01 00, H ONO RAB LE JACK RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n two differ en t i n d i ctm ents, Stephen Hollar was char g ed with assaulting his wife Patricia Davis, whom Hollar was living with at the time of his arr est. See Tex. Penal Code § 22.01 1 (setting out elements of assault). Specifica lly , the first indictment alleg ed that Hollar “intentionally , knowing ly , and re cklessly ” ca used bodily

injury to “Davis by g rabbing her ankle,” and the se cond indictment alleg ed that he “intentionally , knowing ly , and rec klessly ” cause d bodily injury to “Davis by pushing or throwing her.” Both indictments al s o al l eg ed that Hollar had previously been convicted of assaulting a member of his family

. See id. § 22.01(b) (ele vating offe nse of assault from misdemeanor to third-deg ree felony if defe ndant has previously been convicted of assaulting person

Although Patricia Davis is sometimes ref err ed to as Patricia Davis Hollar, the bri efing , 1 indictments, and jury char g es ref er to Hollar’s wife as Patricia Davis. For that rea son, we will also ref er to he r as Patric ia Davis or D avis.“whose rela tionship to or association with the defe ndant is descr ibed by ” Family Code). I n addition,

both indictments contained an enhanc ement para g raph alleg ing that Hollar had previously been convicted “of the felony offe nse of Assault Family Violence Repea t Offe nder.” Hollar pleade d true to the enhanc ement alleg ation in both indictments. At the conclusion of the trial, the jury deter mined that Hollar was g uilty of both char g es and sentenc ed Hollar to 20 y ear s’ imprisonment for eac h char g e. See id. § 12.42 (ele vating permissible punishment rang e for third-deg ree felony offe nse to that of second- deg ree felony when “it is shown

. . . that the defe ndant has” previously been convicted of felony offe nse) ; see also id. § 12.33 (setting out permissible punishment r a n g e s for second- deg ree 2 felony ). Hollar appea ls his conviction. We will aff irm the district court’s judgme nts of conviction.

DISCUSSIO N I n two issues on appea l, H ollar challeng es his c onvictions. First, he argues that his trial attorney was ineffe ctive. Next, he argues that the evidenc e is leg ally insufficient to support his conviction under the seco n d i n d i ct m ent, which alleg ed that he pushed or threw Davis. We will addre ss his sufficiency

challeng e first a

nd then addr ess his remaining issue.

We note that the provision of the Penal Code authorizing en h an ce d punishments for 2 repe at offender s has recently been a mended by

the l eg islature and that those amendments became eff ective af t er Hollar’s conviction in this case . See Act of May 9, 2013, 83d L eg ., R.S., ch. 161, §§ 16.001-.003, sec. 12.42, 2013 Tex

. Gen. L aws 622, 678; Act of May 23, 2013, 83d L eg ., R.S., ch. 663, §§ 7-9, sec. 12.42, 2013 Tex. Gen. L aws 1751, 1753; Act of May 24, 2013, 83d L eg ., R.S., ch. 1323, § 11, sec. 12.42, 2013 Tex. Gen. L aws 3506, 3512. Howeve r, beca use those amendments do not substantively alter the eff ect that a prior felony conviction has on the permissible punishment rang e for a third-deg ree felony offe nse, we ref er to the curr ent version of the statute. See Tex. Penal Code § 12.42. 2Legal Su ff iciency As mentioned above, Hollar c ontends that the evide nce w as i nsufficie nt to support his conviction for the assault char g e alleg ing that he pushed or threw Davi s . I n challeng ing the sufficie ncy

of the e vidence of this conviction, Hollar acknowledg es t hat re cording s of Davis fr om the day of the alleg ed assault wer e play ed for the jury and that on the rec ording s Davis informed lawenfor ceme nt pe rsonnel that Hollar had assa ulted her a

nd had thrown he r ac ross the room and onto the coff ee table; howeve r, Hollar insists that no evidenc e was ever introduced establishing that Davis

ever complained of any “pain or injury .” In fac t, Hollar contends that the only direc t evidenc e of pain cam e fr o m a portion of one of t he recording s in which Davis rec ounted t hat s he ex perie nced pain when Hollar twisted her leg behind her , but Hollar insists that thi s evidenc e of pa in was only rele vant to the other assault char g e. Moreove r, Hollar contends that, if any thing, the evidenc e shows that Davis did not experience pain beca use the coffee t able, which broke when she landed on it, “cushione d” her fall. Fur

thermore , althoug h Hollar mentions Davis’s statements on the rec ording s, he emphasiz es t hat during her actua l testimony , Davis t est i fi ed that she had no rec ollection of t he
events in que stion a

nd that she did not believe that Hollar was responsible for her falling

. Finally , Hollar contends that the testimony from other witnesses corr oborate s Hollar’s testimony that he did
not cause Davis to fall. F or these r easons, Hollar urg es that the e vidence was insuffic ient. An assault is define d under the Penal Code as “intentional l y , k n o wi ng ly , or

rec klessly caus[ing] bodily injury to another .” T ex . Penal C ode § 22.01(a) (1). Fur ther, the Penal Code broadly explains that “‘[b]odi ly injury ’ means phy sical pain, illnes s , or any impairment of phy sical condition.” Id. § 1.07(a) (8). “This definition encompa sses even rela tively minor phy sical

3contac t if it constitutes more than offe nsive touching .” Laster v. State , 275 S.W .3d 512, 524 (Tex.

Crim. App. 2009). Moreove r, in or der to prove that bodily injury occur red, the re doe s not ne ed to be any testimony that the victim experience d pain; on t h e contra ry , “the jury is permitted to draw

rea sonable infere nces from the evidenc e, including an infere nce that the victim suffe red pain.” Arzaga v. Stat e , 86 S.W .3d 767, 778 (Tex. App.—El Paso 2002, no pet.). Stated differen t l y , “[a] fac t finder may infer that a victim actua lly felt or suffe red phy sical pain beca use people of common intelligenc e understand pain and some of the natura l c auses of it.” Randolph v. State , 152 S.W .3d 764, 774 (Tex. App.—Dallas 2004, no pet.); see also W awrykow v. State , 866 S.W .2d 96, 99 (Tex. App.—B eaumont 1993, pet. ref ’d) (explaining that “juries a re f ree to use their common sense and apply common knowledg e, obser vation, and experienc e g ained in the ordinary aff airs of life when g iving e ffe ct to the infer ence s that may rea sonably

be dra wn from the e vidence ”). Under a leg al-suff

iciency revie w, appellate courts view the evidenc e in t h e light
most favor able to the verdic t and deter mine whether “ any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). When perf

orming this revie w, an appellate court must keep in mind that it is the fac tfinder’ s responsibility to w eig h the evidenc e, to resolve c onflicts in the testimony , and to make r easona ble infere nces “fr om basic fa cts to ultim ate f acts.” Id. Moreove r, an a ppellate c ourt must “deter mine whether the n e c e s s a

r y in fer ence s are rea sonable based upon the combined and cumulative forc e of all th e e v id e n c e w h e n v ie w e d in th e li g h t mo s t f a v o r a b le to th e v e r d ic t. ” H

o o p e r v . S ta te , 2 1 4 S. W. 3 d 9 , 16-17 (Tex. Crim. App. 2007). I n addition, appellate courts should presume that any conflict among the infere nces was resolved in favor of the conviction and should defe r to that r esolution. Clayton

4v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). Under a sufficie ncy revie w, appellate courts

consider all the evidence that the j ury was allowed to consider reg ardle ss of whethe r the e vidence

was rig htfully or wrong ly admitted. Mof f v. State , 131 S.W .3d 485, 488 (Tex. Crim App. 2004). I n his brief, Hollar corr ectly points out that during her testimony at trial, Davis related that she did n o t wa n t to testify in the proce eding s and that she had filed an aff idavit of nonprosec ution afte r Hollar wa s ar re sted. The aff idavit was admitted as an exhibi t. In the aff idavit, Davis aver

red that she has “diff

iculty with coordination” a

nd that on the day of the alleg ed assault she had “take n medication, been drinking alcohol and been up fo r 3 0 hours or more” and “fe ll backw ards over the coff

ee table and knocked” herse lf out. Fur ther, Davis explained in her testimony that she could not rec all the events in question and repe ated the asser tions from her aff

idavit that she had taken medication for vertig o and had been drinking

. She also communicated that she was “not confide nt that [Hollar] did this,” that she did not believe that Hollar “had any thing to do with” her falling , that she thought that she had fallen on her own, and that she had been to the emer g ency room for f alling sinc e Hollar

had bee n arr ested. As mentioned above, during his defe nse, Hollar called wi t n esses who testified that Davis had a his tory of falling down. First, Davis called Randall Rey nolds who s t at ed t hat he observe d Davis fall one time when she was outside and that on another occa sion, he found Davis ly ing on her drivewa

y . I n ad d i t ion, Hollar called his daug hter, Sarah Hollar, and her boy friend, Scott Sul livan, to testify . I n their testimonies, Sarah and Sulli van rela ted that Davis had diffic ulty walking beca

use she ha s poor balance. Fur thermore , Sarah testified that Davis wa s not a cre dible person, a nd Sulli van desc ribed Da vis as delusional.

5Moreove r, when testify ing in his own defense, Hollar denied that he h ad as s ault ed

Davis. I n fac t, he ex plained that Davis caused her own i njuries by knocking the coffee table over when she jumped up for the phone

.

Howeve r, althoug h Davis testified that she could n o t re call the events on the day in question, rec ording s in which Davis stated that Hollar had assaulted her and descr ibed the details of the assaults wer e play ed for the jury

. See Moore v. State , 169 S.W .3d 467, 469 n.3 (Tex. App.—Texa rk an a 2005, pet. ref ’d) (explaining that it is not uncommon for victims of domestic violence to ref

use to cooper ate with prosec ution or to rec ant their acc usations). The first rec ording

was of the 911 call that Davis made on the day in question, and the second rec ording was made by Deputy Shawn Booth when he responded t o the 911 call. In those rec ording s, Davis stated that Hollar drank very heavily befor e the assault and that he g ets ag g ressive when he drinks. Reg arding the events leading up to the assault at issue, she stated that he beg an verba lly and phy sically assaulting her in the morning , that he dumped the contents of an ashtray on her, and that he place d his g enitals near her fac e while uttering profa ne lang uag e. Moreove r, Davis told Booth that Hollar repe atedly pushed and shoved her for sever al hours, “knock[ed]” her around, twisted her leg behind her, twisted her ankle, and threw her acr oss the room and onto a coff ee t ab l e, which cause d the cof fee table to bre ak into piec es. When discussing the c ontents of those re cording s during her testimony , Hollar stated that she would “[n] ot purposely ” lie to a police office r and that she did not sound intox icated on the rec ording s.

I n addition to the rec ording s, Booth testified reg arding his own observations on that day

. I n his testimony , Booth testified that when he arr ived, Davis was upset and that her ankle was

6swollen. Fur ther, Booth related that when he went in the house, he noticed a broken coff ee table on the floor. Moreove r, Booth explained that someone falling on a coff ee table would suffe r injury as well as pain. During Booth’s testimony , the State introduced photos of the scene , including photos of the broke n table.

Finally , Hollar’s previous wife, Ba rbar a Hollar, testified reg ardi n g abuse that she suffe red w hile marrie d to him. S pecif ically , Ba rbar a st ated that during their m arr iag e, Hollar was phy sically and emotionally abusive, that he knocked her down some stairs while she was preg nant, that he broke her nose twice, that he kicked he r in the bac k, that he pulled her hair, that he burned her with a fr y i n g p an , and that he tried to smother her. Fur ther, she reve aled that Hollar had previously

been c onvicted of a ssaulting he r. I n light of the evidenc e summari z ed above and g iven the infere nces that could

rea sonably be made from the evidenc e, including that Davis experience d pain, we cannot conclude that the evidenc e was leg ally insufficient to support Hol lar’s conviction under the terms of the indic t m en t al l eg ing that Hollar assaulted Davis by pushing or throwing her. Acc ording ly , we

overr ule Hollar’ s second issue on a ppeal.

Ineff ect iveness Claim As mentioned above, in his first issue, Hollar urg es that his trial counsel provided ineffe ctive assistance of counsel during both the g uilt and the punishment phases of th e t ri al. 3

After the conclusion of the trial, Hollar f iled a motion for new

trial in which he g ener ally 3 alleg ed that his attorney provided him ineffe ctive assistance of counsel; howeve r, no hear ing on the motion for new tria l was held. 7Although he mentions other alleg ed defic iencies in the background section of his brief, his argument

section limits hi s challeng es to the following 7 actions and ina ctions by his attorney :

• failure to object to the introduction of the rec ording made by Deputy Booth on the basis that it was testimonial in nature under Crawf ord v. W ashington , 541 U.S. 36 (2004);

• failure to object on hea rsay g rounds to the portions of B ooth’s testimony in which he de scribed the rec ording that he made of Davis;

• decision to ask Reg ina Bur roug hs, who was called to testify for Hollar, if she believed that Hollar was a violent person, which resulted in the introduction of evidenc e of Hollar’s ex tensive criminal history during her crossexamination;

• failure to ask for a h ea ri n g under Rule of Evidence 403 reg arding the prejudicia l value of B arba ra’ s testimony ;

• failure to obje ct to the State’s introduction of documents re lated to H ollar’s prior conviction for ass au l t i n g Ba rbar a that showed fac ts perta ining to the prior off enses, pr obation violations, and ext rane ous offe nses;

• failure to object during the punishment p hase to the State’s introduction of 22 booking sheets showing Ho l l ar’ s prior arr ests beca use those booking s h ee t s did not establish bey ond a rea sonable doubt that Hollar had been convicted of

the prior ba d acts; and

• failure to object to and to reque st a limit ing instruction reg arding the State’s repe ated and improper

ref ere nces dur ing the punishment pha se to the eff ect that parole will have on Hollar ’s sentenc e.

For ineffe ctiveness claims, t h e d efe ndant must overc ome the strong presumption that his trial “counse l’s conduct falls within the wide rang e of rea sonable profe ssional assistance .” Strickland v. W

ashington , 466 U.S. 668, 689 (1984). To preva il on an inef fe ct iveness claim, the defe ndant must show that the attorney ’s “re prese ntation fell below an objective standard of

8rea sonablene ss . . . under preva iling profe ssional norms” and that “ther e is a rea sonable probability

that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.” Id. at 688, 694. Dec isions reg arding eff ectivene ss must be based on the totality of the repr esenta tion. Frangias v. State , 392 S.W .3d 642, 653 (Tex. Crim. App. 2013); see also Davis v. State , 413 S.W .3d 816, 837 (Tex. A

pp.—Austin 2013, pet. ref ’d) ( explaining that assessment of perf ormanc e should consider cumulative eff

ect of counsel’s defic iencies)

. Moreove r, althoug h a defe ndant is not entitled
to repr esentation that is without err or, a single err or can rende r the repr esenta t i o n i n ef fe cti ve if it “wa s eg reg ious and had a seriously deleter ious impact on the b al ance of the repr esentation.” Frangias , 392 S.W .3d at 653.

Gene rally speak i n g, a direc t appea l does not provide a useful way to prese nt an ineffe ctiveness claim beca use the rec ord for that ty

pe of claim is usually undevelope d. Goodspee d

v. State , 1 8 7 S

. W

. 3 d 390, 392 (Tex. Crim. App. 2005). “This is true with reg ard to the question of def icient per formanc e . . . whe re c ounsel’s re asons for failing to do something do not appear in the re cord.” Id. (explaining that “counse l’s conduct is revie wed with g reat defe renc e, without the distorting eff

ects of hindsight”)

. Moreove r, befor e being deeme d ineffe ctive, trial attorney s should be g iven the opportunity to clar ify their actions. Id. When that opportunity has not been provided,

as in this case , an appellate court should not conclude that an attorney ’s perf ormanc e was ineffe ctive unless the challeng ed conduct is “so outrag eous that no competent attorney would have eng ag ed in it.” See G arcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001).

Six of the seven alleg ed instances of ineffe ctive repr esenta tion stem from purported failure s to act on the part of Hollar’s trial attorney , and the rec ord befor e this Court is not sufficie ntly

9develope d to allow us to evaluate those supposed failure s to act beca use “[n] either [hi s] counsel nor the State have been g iven an opportunity to respond to” the claims of ineffe ctiveness. Mene field v. State , 363 S.W .3d 591, 593 (Tex. Crim. App. 2012). Moreove r, g iven the rec ord b efor e us, we do not believe that those alleg ed failure s wer e so outrag eous that no competent attorn ey would have committed them. Fur ther, we not e t h at al though Hollar’s trial attorney did not object to the admission of th e rec ording made by Deputy Booth on testimonial g rounds or to the testimony discussing portions of t he video, his counsel did object on t h e gro u n d t h at “it doesn’t qualify as a prese nt sense impression becau s e i t is a narr ative and it is audio of the victim of the crime responding to que stions asked by the police office rs.” We a lso note that althoug h Hollar contends that his counsel failed to object to the 22 booking sheets, the rec ord shows that his counsel did argue in a hear ing outside the prese nce of the jury that the sheets should not be admitted beca use they wer e simply arr est rec ords and did not show that Hollar was convicted of any crime. Reg arding Hollar’s

asser tion that his counsel failed to object to the State’s comm en t s ab o u t t h e eff ect of parole and fa i l ed to ask for a limit ing instruction, the rec ord shows when the State commented during its closing that the amount of time serve d by Hollar will be signific antly less than the sentenc e imposed by the jury , Hollar’s counsel objected and explained that the State’s comment was an improper argument. I n addition, the rec ord shows that althoug h the district court initia l l y overr uled the objection, i t rec onsidered Hollar’s counsel’s obj ection, sust ained the objection, and instructed the jury that it could “not consider how parole law and g ood conduct time could be applied.” Turning to Hollar’s rema ining contention that his tria l c ounsel provided ineffe ctive assistance throug h his decision to ask Bur roug hs if she believed that Hollar was a violent person, we

10ag ain note that the rec ord does not clea rly establish what Hollar’s counsel’s motivations wer e when he as k ed Bur

roug hs that question. Moreove r, althoug h Bur roug hs’s answe r resulted in the admission of evidenc e of Hollar’s prior criminal history , we note that Bur rough s an s wer ed by stating that Hollar wa s n o t violent, was car ing, and was the “best person [she] could ever ask to know,” and Hollar’s counsel might have conclude d that the potential benef it of having an individual who curr ently knows Hollar testify reg arding her belief that Hollar was a peac eful person might outweig h the potential neg ative conseque nces that could result. I n light of the rec ord befor e us, we cannot conclude that Hollar’s counsel’s action was “so outrageo u s that no competent attorney would have e ng ag ed in it.” See G arcia , 57 S.W .3d at 440.

Even though it is unnece ssary to addre ss the issu e fu rt h er, we do note that “the totality of the repr esentation” provided by an attorney must be considere d when assess i ng his eff ectivene ss. See Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). During voir dire, Hollar’s attorney

extensively

questioned the jury

panel reg arding their abili ty to serve on the jury ; asked the panel if they could think of rea sons why an alleg ed victim mig ht f alsely acc use someone

o f a cr ime, about their prior interac tions with law-e nforc ement personne l, and about the eff ect that a defe ndant’s prior convictions might have on their decision making ; and moved to strike

sever al panel members for cause . Fur ther, the r ecor d also shows that Hollar’ s counsel objec ted to the admission of the rec ording of the 911 ca l l o n various g rounds, objected to the admission of the rec ording made by Deputy Booth, cross-e x amined the State’s witnesses, and call ed v ar i o u s witnesses to testify on Hollar’s behalf

. Moreover, d uring his closing argument, Hollar’s attorney emphasized that Davis testified that Hollar did not ass au l t her and that she did not reme mber the

11events on the day in question, and his attorney also discussed how the State has the burden to prove

that Hol l ar was g uilty and how even though there was evidenc e of Hollar’s prior misdeeds, the jury should only find him g uilty if they conclude that he was g uilty of the offe nse actua lly char g ed.

I n light of the fore g oing, w e over rule Hollar ’s first issue on appe al. 4

CONCLUSION Having overr

u l ed Ho l l ar’ s two issues on appea l, we aff irm the district court’s judgme nts of conviction.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: August 14, 2014 Do Not Publish

I n g ener al, reje cted claims made in a direc t appea l are “not cog nizable on habea s corpus.” 4 E x parte Nailor, 149 S.W .3d 125, 131 (Tex. Crim. App. 2004). Howeve r, that prohibition does not apply when an app el l at e court “re jects a claim of ineffe ctive assistance of counsel beca use the rec ord on direc t appea l does not contain sufficie nt information to adequately addre ss and resolve a particula

r alleg ation of counsel’s defic ient perf ormanc e,” and the claim may be considere d “in a late r habe as cor

pus proce eding if he provide s additional evidenc e to prove his claim.” Id. 12