Alfred Weeks v. State

• Court: Court of Appeals of Texas
• Decided: January 28, 2009
• Docket: 04-08-00025-CR
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00025-CR

Alfred WEEKS, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law No. 7, Bexar County, Texas Trial Court No. 936582 Honorable Monica E. Guerrero, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Sandee Bryan Marion, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: January 28, 2009

AFFIRMED

Alfred Weeks was convicted of assault and bodily injury of a family or household member.

On appeal, Weeks contends: (1) his trial counsel provided ineffective assistance of counsel; (2) the

State failed to present sufficient evidence to support a finding that the offense occurred in Bexar

County; and (3) the trial court erred in assessing court costs against him. We affirm the judgment

of the trial court. 04-08-00025-CR

FACTUAL BACKGROUND

Alfred Weeks, Darlene Valdez, and their two-year old daughter were driving from Austin

to San Antonio. During their commute, Weeks and Valdez were arguing, and Weeks began

punching Valdez in her face and on her head. Valdez testified that on multiple occasions, Weeks

pulled off the highway and looked for a place to finish the beating. After exiting I-10 West past

Loop 1604, Weeks pulled over and parked the vehicle near the highway. Valdez testified that she

recognized that the area was near the Dominion subdivision. According to Valdez, Weeks dragged

her by her hair out of the passenger side of the vehicle to the back of a nearby shed, where he

continued to kick and punch her on her stomach, face, head, and hands. After Valdez begged Weeks

to stop, Weeks allowed Valdez to return to the car.

Eventually, Weeks drove to a parking lot near Valdez’s house where he had left his car the

previous night. Weeks got into his car and drove away, and Valdez drove to her mother’s house.

Valdez’s mother, Janie Botello, called the police and took Valdez to the hospital.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his first issue, Weeks contends his trial counsel was ineffective because he failed to file

any pre-trial motions, failed to challenge specific witness testimony, and failed to allow Weeks to

testify. Weeks argues trial counsel did not effectively communicate with him prior to trial and did

not file any motions to challenge jurisdiction or motions for discovery to obtain a copy of the police

report. According to Weeks, trial counsel’s inaction indicates a lack of overall preparation which

was prejudicial to the defense. At trial, Weeks instructed trial counsel to challenge the testimony

of the complainant and the complainant’s mother; however, trial counsel failed to comply with

Weeks’s request. Weeks claims that because counsel had failed to file pretrial motions, counsel did

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not obtain the necessary evidence to establish the two witnesses were lying at trial. As a result,

counsel did not have the evidence to establish perjury and consequently did not challenge the

testimony of the two witnesses at trial.

A defendant is entitled to effective assistance of counsel under both the United States and

Texas Constitutions. U.S. CONST . amend. VI; TEX . CONST . art. I, § 10; TEX . CODE CRIM . PROC.

ANN . art. 1.051 (Vernon Supp. 2008). The right to effective assistance of counsel does not guarantee

a defendant errorless representation but instead affords a defendant an attorney who is reasonably

likely to render effective assistance. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).

To establish ineffective assistance of trial counsel on appeal, an appellant must show that counsel’s

assistance fell below an objective professional standard of reasonableness and counsel’s actions

thereby prejudiced appellant’s defense. Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish prejudice, appellant

must prove, by a preponderance of the evidence, that but for counsel’s unprofessional error, the

outcome of his trial would have been different. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.

App. 1998); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

In reviewing an ineffective assistance of counsel claim, we consider the totality of counsel’s

representation in light of the particular circumstances of the case and presume that counsel acted

competently and made decisions based on a reasonable trial strategy. See Ex parte Welborn, 785

S.W.2d 391, 393 (Tex. Crim. App. 1990). To rebut this presumption, the basis for “any allegation

of ineffectiveness must be firmly founded in the record.” Thompson, 9 S.W.3d at 813. It is very

difficult for an appellant to establish ineffective assistance when the record does not specifically

mention counsel’s reasons for his actions, and appellant does not develop an evidentiary record

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through a hearing on a motion for new trial. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d).

Here, no evidentiary record was developed through a hearing on a motion for new trial. See

Thompson, 9 S.W.3d at 813; Gibbs, 7 S.W.3d at 179. The record is silent and does not reveal trial

counsel’s reasons for not filing pre-trial motions, not challenging the two witnesses’ testimony, and

not allowing Weeks to testify at trial. The record does reveal, however, that trial counsel challenged

the State’s evidence concerning the location of the offense in his opening statement and cross-

examination of each witness. Throughout Valdez’s cross-examination, trial counsel asked Valdez

specific details concerning nearby landmarks and the timing of the trip. In addition, trial counsel

questioned Officer Robert Urdiales, the officer who filed the police report, and Rocky Escabedo, the

officer who was dispatched to Botello’s house, about the location of the offense as well as Valdez’s

uncertainty concerning the location. Finally, trial counsel’s closing statement was heavily focused

on calling the location of the offense into question.

Based on the record, we cannot say that Weeks’s trial counsel failed to render effective

assistance of counsel. Because the reporter’s record does not specifically mention counsel’s reasons

for his actions and Weeks did not develop an evidentiary record through a hearing on a motion for

new trial, Weeks fails to rebut the strong presumption of reasonable counsel. See Gibbs, 7 S.W.3d

at 179. With a silent record, we must presume that trial counsel’s decision not to file any pre-trial

motions was based on trial strategy. See Saenz v. State, 103 S.W.3d 541, 545 (Tex. App.—San

Antonio 2003, pet. ref’d); Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001, pet.

ref’d) (“The failure to file pre-trial motions is not categorically deemed ineffective assistance of

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counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy.”).

Furthermore, the record is silent as to trial counsel’s strategy regarding the cross-examination of

Valdez and Botello, and we will not speculate as to trial counsel’s tactics. See Miniel v. State, 831

S.W.2d 310, 324 (Tex. Crim. App. 1992) (explaining that the decision of what to ask on cross

examination falls within the parameters of trial strategy); Hollis v. State, 219 S.W.3d 446, 472 (Tex.

App.—Austin 2007, no pet.). Lastly, although Weeks has the final decision regarding whether to

testify, the record is silent as to whether Weeks asked to testify and whether he and trial counsel

discussed his testifying. See Garza v. State, No. 11-02-00318-CR, 2003 WL 22211283, at *4 (Tex.

App.—Eastland Sept. 25, 2003, pet. ref’d) (not designated for publication).

Because the record is silent as to trial counsel’s strategy regarding the filing of pre-trial

motions, the cross-examination of Valdez and Botello, and Weeks’s decision to testify at trial,

Weeks fails to show that trial counsel performed below the objective standard of reasonableness.

See Strickland, 466 U.S. at 687-88, 692; Thompson, 9 S.W.3d at 812. Weeks’s first appellate issue

is overruled.

SUFFICIENCY OF THE EVIDENCE

In his second issue, Weeks contends the State failed to present sufficient evidence to support

a finding that the offense occurred in Bexar County. Weeks contends that while Valdez testified that

the assault occurred in Bexar County, she did not provide a specific address. Moreover, Weeks

asserts that Officer Urdiales testified that Valdez was uncertain of the location of the shed where the

beating took place, thereby refuting the State’s contention that the assault occurred in Bexar County.

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We review the factual sufficiency of the evidence by carefully considering all of the evidence

in a neutral light and asking whether the jury was rationally justified in finding guilt beyond a

reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Under a

factual sufficiency review, we only reverse if: (1) the evidence is so weak that it makes the verdict

clearly wrong or manifestly unjust; or (2) the verdict goes against the great weight and

preponderance of the evidence. See id. at 414-15 (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.

Crim. App. 2000)). Although we analyze all of the evidence presented at trial, the trier of fact is the

sole judge of the credibility of the witnesses and the weight given to their testimony, and we afford

“due deference” to the jury’s determinations. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.

Crim. App. 2006).

Weeks was charged with assault and bodily injury of a family or household member under

section 22.01 of the Texas Penal Code. TEX . PENAL CODE ANN . § 22.01 (Vernon Supp. 2008).

Under article 13.18 of the Texas Code of Criminal Procedure, prosecution for this offense is proper

in the county in which the offense was committed. TEX . CODE CRIM . PROC. ANN . art. 13.18 (Vernon

2005); see also Robertson v. State, 137 Tex. Crim. 535, 538, 132 S.W.2d 276, 278 (1939)

(instructing courts to look to article 13.18 of the Texas Code of Criminal Procedure when the statute

does not specifically provide venue for the prosecution of an offense). In criminal cases, venue must

be proven only by a preponderance of the evidence. TEX . CODE CRIM . PROC. ANN . art 13.17 (Vernon

2005). Because venue is a jurisdictional fact and not an element of the offense, “it need not be

established by evidence beyond a reasonable doubt, and may be proved by circumstantial as well as

direct evidence.” Edwards v. State, 427 S.W.2d 629, 636 (Tex. Crim. App. 1968); see also

Hernandez v. State, 198 S.W.3d 257, 268 (Tex. App.–San Antonio 2006, pet. ref’d).

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Valdez testified that Weeks began hitting and punching her on the drive from Austin to San

Antonio. Valdez testified that Weeks pulled off the highway on multiple occasions and looked for

a place to finish the beating. Valdez further testified that a substantial portion of the beating took

place behind a shed that Weeks found after he had exited I-10 West past Loop 1604 but before the

Dominion subdivision. Additionally, Officer Urdiales testified that the Dominion and the area of

I-10 past Loop 1604 but before the Dominion subdivision are located in Bexar County.

Weeks attempts to challenge the location of the shed by focusing on Officer Urdiales’s police

report, which states the offense took place along I-35 South and conflicts with Valdez’s testimony

that the shed was located along I-10 West near the Dominion. Although Weeks contends the police

report proves Valdez’s confusion regarding the location of the shed, the State asserts that Officer

Urdiales testified that he had assumed the offense took place along I-35 South since I-35 South is

the route from Austin to San Antonio. In reviewing the factual sufficiency of the evidence, the trier

of fact is the exclusive judge of the credibility of the witnesses and may choose to believe any parts

of the witnesses’ testimonies or other evidence presented. Margraves v. State, 34 S.W.3d 912, 919

(Tex. Crim. App. 2000). In this case, the jury could have chosen to believe Valdez’s testimony that

the shed was located somewhere along I-10 West past Loop 1604 before the Dominion subdivision

instead of along I-35 South. See Marshall v. State, 210 S.W.3d at 625.

The evidence is factually sufficient to support the jury’s finding that the offense occurred in

Bexar County. Accordingly, we overrule Weeks’s second appellate issue.

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COURT COSTS

In his third issue, Weeks contends the trial court erred in assessing court costs against him.

Weeks contends he made a request for the jury to determine his punishment if the jury found him

guilty. After finding Weeks guilty, the jury assessed punishment at “confinement in Bexar County

Jail for one year” and “a fine of $4,000.00” According to Weeks, court costs were not part of the

jury verdict, and as a result, the trial court erred in ordering him to pay court costs.

A trial court is statutorily authorized to order the payment of court costs. TEX . CODE CRIM .

PROC. ANN art. 42.16 (Vernon 2006) (specifying that the judgment should adjudge the costs against

the defendant); TEX . GOV ’T CODE ANN . §§ 102.021-102.161 (Vernon Supp. 2008) (ordering a person

convicted of an offense to pay court costs). An award of court costs is part of the punishment

assessment and “must be orally pronounced in order to be properly included in the written

judgment.” Weir v. State, 252 S.W.3d 85, 89 (Tex. App.—Austin 2008, pet. granted). To preserve

a claim that the trial court erred in its assessment of court costs, a defendant must make an objection

to the assessment of court costs at trial. Modica v. State, 151 S.W.3d 716, 721-22 (Tex.

App.—Beaumont 2004, pet. ref’d).

Here, the trial court orally assessed court costs during the punishment hearing; however,

Weeks failed to object to the trial court’s assessment of court costs during the punishment stage of

trial. As a result, Weeks failed to preserve his claim regarding court costs for appeal. See Id. Even

if Weeks had properly preserved this error, the trial court did not err in assessing court costs against

Weeks pursuant to its statutory authority. See TEX . CODE CRIM . PROC. ANN art. 42.16 (Vernon

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2006); TEX . GOV ’T CODE ANN . §§ 102.021-102.161 (Vernon Supp. 2008). Weeks’s third appellate

issue is overruled.

CONCLUSION

Based on the appellate record, we cannot say that Week’s trial counsel rendered ineffective

assistance of counsel. Additionally, the evidence is legally and factually sufficient to support that

the offense in question occurred in Bexar County. Finally, the trial court was statutorily required to

assess court costs against appellant. Accordingly, the judgment of the trial court is affirmed.

Rebecca Simmons, Justice Do not publish

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