Barnett, James Henry v. State

• Court: Court of Appeals of Texas
• Decided: July 29, 2002
• Docket: 05-00-01636-CR
• Status: Published

Opinion

~~- AFFIRMED; Opinion issued July 29, 2002

In The

JAMES HENRY BARNETT, Appellant

v. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause No. F00-29503-NJ ·

OPINION Before Justices Kinkeade, Morris, and Bridges Opinion By Justice Bridges

James Henry Barnett appeals his indecency with a child conviction. A jury found appellant

guilty and sentenced him to fifteen years' confinement. In three points of error, appellant argues the

trial court erred in overruling his mo~ion to suppress his written statement, the trial court erred in

failing to enter findings of fact required by the code of criminal procedure, and he received ·'

ineffective assistance of counseL We affirm the trial court's judgment.

Because appellant does not challenge the sufficiency of the evidence to support his

conviction, only a brief recitation of the facts is necessary. R.E.R., eighteen at the time of trial,

testified that appellant put his mouth on her breast when she was about twelve years old. Following -- -~ .... _ ··~-~--·· ·-·-·- ··~·-·· --··~· ... -·~~----··~------

a hearing on appellant's motion to suppress his written statement, the trial court overruled appellant's

motion. The jury subsequently convicted appellant of indecency with a child younger than seventeen

years old, and this appeal followed.

Following the submission of this case, we abated this appeal and ordered the trial court to

file writ~en findings of fact as required by article 38.22 of the Texas code of criminal procedure. See

TEX. CODE CRIM. PROC. ANN. Art. 38.22 § 6 {Vernon 1979). On June 5, 2002, the trial court filed

a supplemental clerk's record containing its findings of fact that app~llant's written statement was

made voluntarily. Accordingly, we need not further address appellant's second point of error in

which he complains the trial court erred in failing to enter findings of fact.

In his first point of error, appellant argues his written statement was involuntarily given, and

the trial court erred in failing to suppress the statement. When a pretrial motion to suppress evidence

is overruled, the defendant need not subsequently object at trial to the same evidence in order to

preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 {Tex. Crim. App. 1986).

However, when the defendant affirmatively asserts during trial he has "no objection" to the

admission of the complained of evidence, he waives any error iJ the admission of the evidence

despite the pretrial ruling. Id.; see McCray v. State, 861 S.W.2d 405,409 {Tex. App.-Dallas 1993,

no pet.). In this case, when the State offered appellant's written statement into evidence at the guilt-

innocence stage oftrial, appellant's counsel stated, ''No objections." Accordingly, appellant has

waived any error in the admission of his written statement. See Moraguez, 701 S.W.2d at 904;

McCray, 861 S,W.2d at 409. We overrule appellant's first point of error.

In his third point of error, appellant argues his trial counsel was ineffective in stating "No

objections" and waiving any error in the admission of his written statement. The standards for

reviewing ineffective assistance of counsel claims are well established. In brief, it is an appellant's

-2- burden to show by a-preponderance ofthe evidence that (1) trial counsel's performance was deficient

in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant;

that is, but for the deficiency, there is a reasonable probability that the result ofthe proceeding would

have been different. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim~ App. 1996) (citing

Strickland v. Washington, 466 U.S. 668 (1980)).

We indulge a strong presumption the defense counsel's conduct falls within the wide range

ofreasonable, professional assistance, i.e., that the challenged action might be considered sound trial

strategy. See Jackson v. State, 877 S.W.2d 768, 770-01 (Tex. Crim. App. 1994). To defeat this

presumption, "any allegation of ineffectiveness must be firtnly founded in the record, and the record

mustaffirmativelydemonstrate the alleged ineffectiveness~" Thompson v. State, 9 S.W.3d 808,812

(Tex. Crim, App. 1999). In most cases, a silent record which provides no explanation for counsel's

actions will notovercome the strong presumption ofreasonable assistance. See id. at 813-14.

At the motion to suppress hearing in this case, Grand Prairie police detective Allen Frizzell

testified that he met with appellanton February 22, 2000. Frizzell read appellant his Miranda rights,

and appellant said he understood his rights, initialed next to each right, and signed the paper listing

his rights. , Appellant said he wanted to talk to Frizell and made no indication that he wanted to

terminate the interview or ask for a lawyer. Frizzell and appellant discussed appellant's statement

orally, and appellant then wrote out his statement that R.E.R. let him "touch her sex area's [sic.] and

she asked to touch·[appellant's] areas." The trial court ultimately denied appellant's motion to

suppress the written statement.

There isnothing in the record to suggest that the trial court, having overruled appellant's ' motion to suppress appellant's written statement, would: have granted appellant's objection to the

statement's admission at guilt-innocence. Moreover, ~tating there were "no objections" to the

-3- admission of the written statement may have been a strategic move to give the appearance that

appellant had nothing to hide. Although appellant filed a motion for new trial, he did not raise

ineffective assistance of counsel in the motion, nor does it appear from the record that a hearing was ·

ever held on the motion. Thus, as in Thompson, the record provides no discernible explanation of

the motivation behind counsel's statement he had "no objections," but clearly the actions could have

been of strategic design~ See Thompson, 9 S. W.3d at 812; Consequently, we conclude appellant has

not shown that there is a reasonable probability that the result of the proceeding would have been

different if appellant's counsel had not stated he had "no objections" to the admission of appellant's

written statement. See McFarland, 928 S.W.2d at 500. We overrule appellant's third point of error.

We affirm the trial court's judgment.

C)_j(~ DAVID L. BRIO~ JUSTICE

Do Not Publish TEX. R. APP. P. 47 001636F.U05

-4-

Based on the Court's opinion of this date, the judgment of the trial court isAFFIRMED.

Judgment entered July 29, 2002.

()~ (__ ~ DAVID L. BRIDGE JUSTICE