Kellis, Michael Jay v. State

• Court: Court of Appeals of Texas
• Decided: February 7, 2006
• Docket: 14-04-01044-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed February 7, 2006

Affirmed and Memorandum Opinion filed February 7, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-01044-CR

MICHAEL JAY KELLIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 45,280

M E M O R A N D U M   O P I N I O N

A jury convicted appellant, Michael Jay Kellis, of intoxication assault and assessed his punishment at three years= confinement and an $8,000 fine.  In a single point of error, appellant argues that his trial counsel was ineffective.  We affirm.

Factual and Procedural Background

On April 26, 2003, at approximately 11:45 p.m., appellant was driving on Highway 35.  He had been drinking and was intoxicated.  While driving, he veered into the lane of oncoming traffic and his pickup truck struck complainant=s car.  The complainant was air-lifted to a hospital; he suffered severe injuries.  At the close of the State=s case-in-chief, appellant=s counsel moved for a directed verdict on the ground that the State had not proved an element of the crime: namely, that complainant=s injuries were sufficiently serious.  The trial court overruled that motion.

On appeal, appellant claims only that his trial counsel was ineffective because trial counsel did not move for a directed verdict at the close of the State=s case-in-chief on the basis that the State did not prove appellant was the driver of the pickup truck.

Analysis

I.        Ineffective Assistance of Counsel

Appellant was charged with intoxication assault and it was the State=s burden to prove each element of the offense beyond a reasonable doubt.  Intoxication assault requires the State to prove the defendant: (1) by accident or mistake, (2) while operating . . . a motor vehicle, (3) in a public place, (4) while intoxicated, (5) [and] by reason of that intoxication; (6) cause[d] serious bodily injury to another.  See Tex. Penal Code ' 49.07(a)(1).  Appellant claims the State had not proven the second element by the close of its case-in-chief.^[1]  Relying on the rule of corpus delicti, appellant argues the State did no more than offer out-of-court statements from the defendant to prove he was driving the pickup truck and the State did not properly corroborate those statements.  According to appellant, without proper corroboration, the State had not presented adequate evidence at the close of its case-in-chief that appellant was the driver.  Thus, appellant believes the trial court would have had no choice but to grant a motion for a directed verdict on the basis that the State did not prove each element of its case.  Because trial counsel did not move for a directed verdict on that ground, appellant argues, trial counsel was ineffective and we must reverse and remand.  We disagree with appellant=s characterization of the rule of corpus delicti and of trial counsel=s effectiveness in this regard. 

A.      To be ineffective in not moving for a directed verdict, the evidence must have been legally insufficient

(i)      Standards for reviewing ineffective assistance of counsel claims

The Sixth Amendment to the United States Constitution guarantees the right to counsel, including the effective assistance of counsel in criminal cases.  The Supreme Court has developed standards to determine whether trial counsel was ineffective in her representation, which we apply to each ineffective assistance claim.  See Rylander v. State, 101 S.W.3d 107, 109B10 (Tex. Crim. App. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)).  When claiming ineffective assistance of counsel, appellant must show that: (1) trial counsel=s performance was deficient because it fell below an objective standard of reasonableness; and (2) a probability sufficient to undermine confidence in the outcome existed that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Id. at 110.  Stated differently, appellant must prove not only that his counsel=s performance was not objectively reasonable, but also that the result likely would have been different had counsel not made the error she made.

On direct appeal, appellate courts generally do not look favorably upon ineffective assistance claims.  See id. (stating that the record is generally insufficient to show whether or not trial counsel=s strategy was reasonable).  We have a strong presumption that trial counsel=s decisions were sound trial strategy.  Id.    The more appropriate vehicle for this claim is a writ of habeas corpusCa collateral attackCbecause in that proceeding trial counsel may explain her actions.  Id. at 110B11.  Otherwise, the record will not provide the proof necessary to show that trial counsel was so deficient to meet the first part of the Strickland test.  Id. at 110.  Thus, appellants face not just the presumption that trial counsel=s performance was based on sound trial strategy, but also the hurdle of an undeveloped record.

(ii)      Evidence must be legally insufficient to receive directed verdict

In this case, we must consider whether appellant=s trial counsel was deficient in not moving for a directed verdict due to the State=s alleged failure to prove an essential element of the crime: that appellant was driving the pickup truck.  A claim that a directed verdict would be required is a challenge to the legal sufficiency of the evidence.  See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).  Evidence is legally sufficient if, viewed in the light most favorable to the verdict, a rational jury could find the elements of the offense beyond a reasonable doubt.  Williams, 937 S.W.2d at 482 (citing Jackson v. Virginia, 443 U.S. 307 (1979)).  If the evidence was legally sufficient, then a directed verdict would not have issued, as appellant claims, and his trial counsel was not ineffective.

B.      Corpus Delicti does not mandate reversal in this case

Appellant=s argument revolves around his application of the rule of corpus delicti.  According to appellant, the rule requires the State to corroborate appellant=s out-of-court statements that he drove the pickup truck that struck complainant=s car.  His argument is flawed in two respects: (1) corpus delicti does not apply in the way appellant claims; and (2)  viewed in the light most favorable to the verdict, there was sufficient corroboration of the evidence.  We will address each of these flaws below.

(i)      Corpus Delicti

Appellant=s view of corpus delicti in this case is that it requires the State to corroborate any out-of-court confession or statement by a defendant.  However, appellant misunderstands the law of corpus delicti.  It is not a rule governing the corroboration of statements.  Rather, the corpus delicti of any crime concerns simply whether the crime was committed by someone.  Fisher v. Texas, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993).  The rule requires that, in addition to an out-of-court confession that a crime occurredCtypically murder in the corpus delicti line of casesCthere be some independent evidence tending to prove the corpus delicti.  Id.; see also Salazar v. State, 86 S.W.3d 640, 641 (Tex. Crim. App. 2002) (stating that the evidence need only corroborate that the offense in question actually occurred).  That independent evidence can be considered in connection with the confession.  Salazar at 645.  The rule does not require independent corroboration of every detail of a confession if there is corroboration that the crime occurred.  Id. at 644B45.

(ii)      The evidence was legally sufficient

Here, viewing the State=s evidence in the light most favorable to the verdict, corpus delicti does not require reversal.  There is no serious question whether the crime of intoxication assault actually occurred.  The State presented expert testimony regarding accident reconstruction, the condition of the vehicles, the medical condition of complainant, and appellant=s intoxication levels, which provided more than Asome independent evidence@ to prove that the crime actually occurred.  That evidence all showed that an automobile accident occurred, on a public road, appellant was intoxicated, and that intoxication resulted in appellant=s driving error that caused the accident.  Additionally, the State=s witnesses testified they saw appellant walking from the pickup truck, there was no one else in or around the pickup truck, and appellant made statements indicating he drove the pickup truck and hit complainant=s car.  There is both evidence that the crime occurred and that appellant drove the pickup truck that struck complainant=s car.

We see no merit in appellant=s claim that the State failed to prove a crime actually occurred.  Moreover, the evidence was legally sufficient to prove appellant was driving the pickup truck that struck complainant=s car, along with every other element of the crime.  There is nothing in the record to support appellant=s claim of ineffective assistance of counsel on the ground he raises for this appeal.  Accordingly, we overrule appellant=s sole point of error. 

Conclusion

We overrule appellant=s sole point of error and affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed February 7, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

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

---

^[1]  Appellant contends that we may consider only the evidence before the trial court at the point in time when trial counsel would have moved for the directed verdict because that is the only evidence the trial court would have considered in ruling on that motion.  We need not pass upon this argument because the evidence, as outlined below, was sufficient at the close of the State=s case-in-chief on the question of operating a motor vehicle.