Batiste, Mark Steven v. State

• Court: Court of Appeals of Texas
• Decided: April 28, 2005
• Docket: 14-04-00043-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 28, 2005

Affirmed and Memorandum Opinion filed April 28, 2005.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00043-CR

MARK STEVEN BATISTE, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 904,282

M E M O R A N D U M   O P I N I O N

Appellant, Mark Steven Batiste, appeals his conviction for aggravated assault on the ground that he received ineffective assistance of counsel.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Background

On March 3, 2002, the complainant, Bobbie Allen, was appellant=s girlfriend.  Allen testified that she was visiting a neighbor when appellant kicked in the door and began beating her.  As Allen tried to return to her home, appellant attempted to beat her again.  When Allen arrived at her front porch, appellant hit her with a chair.  Appellant=s brother, Anthony Batiste, intervened, and Anthony and Allen sat in Anthony=s car to talk.  Later, appellant appeared and opened the passenger door.  He accused Allen of calling the police and hit her with a brick.  As Allen tried to defend herself, appellant stabbed her in the stomach.  Anthony drove a block away where he flagged down Houston Police Officer Valentin Villanueva.

At trial, Anthony claimed he had no recollection of the incident because he was intoxicated at the time of the incident and on medication at the time of trial.  However, Officer Villanueva testified that when Anthony flagged him down, Anthony said that his brother had stabbed Allen.  After speaking with Anthony, Officer Villanueva tended to Allen who confirmed that appellant stabbed her.  A jury convicted appellant of aggravated assault and sentenced him to fifty years= confinement.

Ineffective Assistance of Counsel

In his sole issue, appellant contends that he received ineffective assistance of counsel because his counsel failed to request a mistrial in response to allegedly improper jury arguments by the State.

The United States Supreme Court has established a two‑prong test to determine whether counsel was ineffective.  Strickland v. Washington, 466 U.S. 668, 687, (1984); see  Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  Appellant must prove (1) counsel=s representation fell below the objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different.  Strickland, 466 U.S. at 687; see Mitchell, 68 S.W.3d at 642.  In considering the first prong, we indulge a strong presumption that counsel=s actions fell within the range of reasonable professional behavior.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  To overcome this presumption, an allegation of ineffectiveness must be firmly demonstrated in the record.  Id.  We assume counsel=s actions and decisions were reasonably professional and motivated by sound trial strategy.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Appellant first complains of a statement at the beginning of the State=s rebuttal argument.  During appellant=s closing argument, his counsel had noted several facts to challenge Allen=s and Officer Villanueva=s credibility.^[1]  At the beginning of its rebuttal argument, the State responded, AMinor insignificant points from what has become or what has turned out to be the biggest lay-down case I=ve ever seen.@  Appellant=s counsel immediately objected.  The trial court did not specifically sustain the objection, but it instructed the jury to disregard the argument.

Appellant also complains that the State argued:

I don=t know what else to say.  It does not get any more simple.  It doesn=t get any more straightforward that this.  [Allen] has been living for the last 22 months basically wondering to herself, when am I going to be done with this?  When is this case going to be over?

Appellant immediately objected, and the trial court sustained the objection and instructed the jury to disregard.

Although appellant=s counsel objected to these arguments, appellant contends that counsel=s representation, nonetheless, fell below an objective standard of reasonableness because he failed to request a mistrial.^[2]  However, appellant has not rebutted the presumption that his counsel was effective.  See Thompson, 9 S.W.3d at 813.  Generally, the record on direct appeal is not sufficient to establish a claim of ineffective assistance of counsel because a silent record cannot rebut the presumption that counsel=s performance was based on sound or reasonable trial strategy.  Mitchell, 68 S.W.3d at 642; Kesaria v. State, 148 S.W.3d 634, 638 (Tex. App.CHouston [14th Dist.] 2004, pet. filed).  In the absence of a record explaining trial counsel=s actions, a reviewing court most likely cannot conclude trial counsel=s performance fell below an objective standard of reasonableness unless the conduct was so outrageous that no competent attorney would have engaged in it.  Kesaria, 148 S.W.3d at 639 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

Here, the record is silent as to counsel=s trial strategy.  Moreover, counsel=s conduct was not so outrageous that no competent attorney would have engaged in it because appellant would not have been entitled to a mistrial.  Mistrials should be granted only when an objectionable event is Aso emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against the defendant.@  Sanders v. State, 25 S.W.3d 854, 858 (Tex. App.CHouston [14th Dist.] 2000, pet. dism=d) (citing Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996)).  Because curative instructions are presumed effective to withdraw from jury consideration almost any objectionable argument, trial conditions must be extreme before a mistrial is warranted.  See id. (citing Bauder, 921 S.W.2d at 698); see also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000).

Here, the State=s arguments were not so inflammatory, prejudicial, or extreme that they were not cured by the instructions to disregard.  To the contrary, considering the evidence establishing appellant=s guilt, the jurors could have determined for themselves that it was the Abiggest lay-down case.@  Further, considering the severity of the assault, the jurors could have determined for themselves that Allen had been wondering for twenty-two months when the entire episode would be over.  Therefore, the trial court=s instructions to disregard were presumed effective to cure the objectionable arguments, and a mistrial was not appropriate.

Because appellant was not entitled to a mistrial, counsel=s representation did not fall below the objective standard of reasonableness.  Consequently, appellant has failed to prove that he received ineffective assistance of counsel.

Accordingly, we overrule appellant=s sole issue and affirm his conviction.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed April 28, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Specifically, appellant’s counsel noted: (1) Allen was having a relationship with her neighbor although she was appellant=s girlfriend; (2) Officer Villanueva testified he saw Anthony and Allen sitting in the car before the stabbing, but the car had tinted windows; and (3) Allen=s medical records incorrectly reported she sustained a gunshot wound instead of a stab wound.

^[2]  Appellant also complains that his trial counsel was ineffective by failing to move for a mistrial when the State argued that appellant “likes to gut people with a knife” and “ought to be ashamed of himself.”  However, the trial court overruled counsel=s objection.  Therefore, appellant has failed to show what more counsel could have done than lodge an objection and obtain an adverse ruling.  Appellant asserts in the body of his brief that the trial court erred in overruling the objection.  However, he buries this assertion in his “ineffective assistance argument.”  He presents no separate issue to challenge the trial court’s overruling his objection and makes no argument to support this assertion.  Accordingly, we will not consider it.  See Tex. R. App. P. 38.1(e) (stating that appellant’s brief must state concisely all issues presented for review); Tex. R. App. P. 38.1(h) (stating that appellant’s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record); see also Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000); Smith v. State, 907 S.W.2d 522, 532 (Tex. Crim. App. 1995).