Michael Joseph Smyth v. State

• Court: Court of Appeals of Texas
• Decided: June 19, 2008
• Docket: 01-07-00744-CR
• Status: Published

Opinion

Opinion issued June 19, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00744-CR

MICHAEL JOSEPH SMYTH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 51,743

MEMORANDUM OPINION

A jury convicted appellant, Michael Joseph Smyth, of aggravated assault and assessed punishment at 10 years' confinement. In three points of error, appellant contends (1) that the trial court erred in refusing to allow him to impeach the complaining witness; (2) that the trial court erred in limiting cross-examination of the complaining witness, and (3) that he received ineffective assistance of counsel. We affirm.

BACKGROUND

Appellant and Michelle Martinez were husband and wife. They lived with their two children in an apartment in Clute, Texas. The marriage was not going well, and Martinez wished to end it. Appellant had agreed to move out, but, on February 6, 2006, he was still living in their apartment.

On that date, appellant came home from work between 1:00 and 1:30 a.m. He and Martinez argued about their relationship until she went to sleep between 2:30 and 3:00 a.m. Martinez awoke at 4:30 a.m. when she felt a cold fluid being poured on her. When she looked up, appellant was standing at the foot of the bed and had a bottle of rubbing alcohol in his hand. Appellant then walked to the side of the bed, pulled out a lighter, and said, "I should burn you. You're not going to throw away six years of our lives together. If you're not going to be with me, then you're not going to be with anybody else." Martinez yelled back, and the two resumed their argument.

While Martinez was lying on her back, appellant got on her stomach and choked her with his hands. When Martinez managed to break free, appellant picked up a belt and hit her on her left leg. When Martinez threatened to call the police, appellant ripped the telephone out of the wall and put the cordless telephone in his pocket. Appellant then calmed down, apologized, and went into the front room.

At 6:30 a.m., Martinez got up, took her children to daycare, and went to work. At work, a co-worker, Larry Ellis, convinced Martinez to talk to the police. Ellis then contacted Officer S. Epperly of the Freeport Police Department and went with Martinez to talk to Epperly.

Martinez divorced appellant almost 6 months after the alleged offense. She later married her coworker, Ellis.

Appellant, however, testified that on the night in question , he attempted to call his wife many times, but the line was busy. When he got off work, he went home and questioned Martinez about whom she had been talking to on the telephone. He hit the redial button on the telephone and discovered that Martinez had been talking to Ellis. Appellant and Martinez argued, and appellant called his sister to come pick him up. Appellant and his sister went to a gambling room in Clute, and appellant returned home between 4:30 and 5:00 a.m. When he went inside, Martinez told him to get out. Appellant testified that, as he turned to walk out, he threw his hand up and knocked something over. He then went to bed. According to appellant, nothing further happened until the police arrived the next day.

DENIAL OF IMPEACHMENT EVIDENCE

In point of error one, appellant contends the trial court "abused its discretion by sustaining the State's objection to [his] attempt to impeach [Martinez] by showing her motive to lie through statements [Martinez] made to appellant's sister."

During cross-examination of Martinez, the following exchange took place:

[Defense counsel]: Now, Mr. Smyth could not come back the day after you filed the complaint to pick up his clothes; is that correct.

[Martinez]: That's correct.

[Defense counsel]: Now, so he had to send his sister to get his clothes?

[Defense counsel]: And that sister was Nikita.

[Martinez]: Yes.

[Defense counsel]: And do you remember when she came to pick up the clothes that she asked you, "Did he do anything to you?"

[Martinez]: No.

[Defense counsel]: And you don't remember telling her, "I'm going to do what ever it takes to get him out of the house."?

Later, during the testimony of his sister, Nikita Smyth, appellant attempted to impeach Martinez by having Smyth testify about the statement that Martinez could not remember making. The exchange took place as follows:

[Defense counsel]: Okay. Now, is the first time when you asked Mrs. -- Mrs. Martinez, "Did anything happen to you?"

[Smyth]: Yes.

[Defense counsel]: And what did she respond?

[Smyth]: She told me, "No. I was going to do anything it took to get him out of the house."

[Prosecutor]: I'm going to object, Your Honor. Hearsay. Improper impeachment.

[Trial court]: Sustained.

Appellant argues that the State's case hinged upon Martinez's credibility and that he should have been allowed to impeach Martinez by having Smyth testify about the statement that Martinez could not recall making. The State argues that error, if any, in sustaining the State's objection was harmless because the jury heard Smyth's answer about Martinez's statement and was never instructed to disregard it. We agree.

In Rodriguez v. State, 903 S.W.2d 405, 409-10 (Tex. App.--Texarkana 1995, pet. ref'd), the State objected to certain evidence on the basis of hearsay. The trial court sustained the State's objection, but the State did not request an instruction to disregard, and no such instruction was given. Id. at 409-10. On appeal, the defendant argued that the trial court erred by excluding the evidence. Id. The court of appeals held that when "an objection is made and sustained, but no motion is made to strike the answer or to instruct the jury not to consider, the testimony is before the jury for whatever it is worth." Id. at 410. "Because this portion of the evidence was not excluded from the jury's consideration, [the defendant] was not damaged by the court's ruling." Id.; see also Johnson v. State, 925 S.W.2d 745, 750 (Tex. App.--Fort Worth 1996, pet. ref'd) (holding same).

Both Rodriguez and Johnson were decided under a harm standard akin to the constitutional harm standard set forth in Texas Rule of Appellate Procedure 44.2(a). See Tex. R. App. P. 44.2(a). We need not decide whether to apply the constitutional harm standard of rule 44.2(a) or the nonconstitutional harm standard of rule 44.2(b) because, under either standard, the result is the same. See Bourda v. State, No. 01-05-00345-CR, 2007 WL 1300189 (Tex. App.--Houston [1st Dist.] May 3, 2007, no pet.) (not designated for publication) (holding that under constitutional standard set forth in rule 44.2(a), error in sustaining objection to improper argument was harmless because jury heard argument and was not instructed to disregard it).

Martinez's statement to Smyth--that Martinez was going to do whatever it took to get appellant out of the house--was before the jury and the jury was never instructed to disregard it. Therefore, the trial court's ruling sustaining the State's objection to the statement did not harm appellant.

Accordingly, we overrule point of error one.

LIMITATION OF CROSS-EXAMINATION

In point of error two, appellant contends the trial court abused its discretion by limiting his cross-examination of Martinez. Specifically, appellant wanted to show that Martinez was involved with Ellis at the time of the offense, thus giving her a motive to lie about appellant. During the cross-examination of Martinez, the following exchange took place:

[Defense counsel]: Now, it was you who insisted that you didn't want this relationship [with appellant] to continue anymore; is that true?

[Defense counsel]: Now, and isn't it true that you were having a relationship by phone or more than a casual relationship with Mr. Larry Ellis?

[Martinez]: No, sir.

[Defense counsel]: Isn't he the coworker that you talked to when you went to work and he encouraged you to call the police?

[Martinez]: Yes, but that he was a friend.

[Defense counsel]: Oh, a friend [to] whom you are now married?

[Defense counsel]: So, it's just a coincidence that you just knew him and he's the one that encouraged you to go to the police?

[Prosecutor]: Your Honor, I'm going to object to the relevance of this line of questioning.

[Trial court]: [Defense counsel]?

[Defense counsel]: I think it goes to motive of why she made this outcry, Judge. I mean, she's already indicated that she had--she was having plans, making plans to end this relationship. She's testified to that.

[Trial court]: I'll sustain the objection.

(Emphasis added.)

Appellant argues that the trial court erred by improperly limiting his cross-examination of Martinez about whether she and Ellis were romantically involved at the time of the alleged offense. We review a trial court's decision to limit cross-examination under an abuse of discretion standard. Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

The Confrontation Clause of the U.S. Constitution guarantees a defendant the right to cross-examine witnesses. See U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1435 (1986); Carroll v. State, 916 S.W.2d 494, 496-97 (Tex. Crim. App. 1996). A defendant may cross-examine a witness on any subject "reasonably calculated to expose a motive, bias or interest for the witness to testify." Carroll, 916 S.W.2d at 497. "However, the trial court has considerable discretion in determining how and when bias may be proved, and what collateral evidence is material for that purpose." Recer v. State, 821 S.W.2d 715, 717 (Tex. App.--Houston [14th Dist.] 1991, no pet.). The trial court has discretion to limit the scope of cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and injecting cumulative or collateral evidence. Van Arsdall, 475 U.S. at 679, 106 S. Ct. 1435; Stults v. State, 23 S.W.3d 198, 204 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). This limitation does not violate the defendant's "right to confront a witness as long as (1) the possible bias and motive of the State's witness is clear to the trier of fact and (2) the accused has otherwise been afforded an opportunity for a thorough and effective cross-examination." Stults, 23 S.W.3d at 204.

The question to which appellant objected--"So, it's just a coincidence that you just knew [Ellis] and he's the one that encouraged you to go to the police?"--was cumulative of other evidence already admitted. Martinez had already testified that she was currently married to Larry Ellis, that at the time of the offense he was a friend, and that he was the person who had encouraged her to go to the police after her altercation with appellant. The question appellant was prevented from asking would have added nothing more. When the possible bias and prejudice of the State's witness has been made patently obvious to the factfinder, and the defendant has otherwise been afforded an opportunity for a thorough and effective cross-examination, no violation of the defendant's confrontation rights occurs. Carmona v. State, 698 S.W.2d 100, 104 (Tex. Crim. App. 1985). Because the issue of Martinez's relationship with Ellis was already before the jury, and because any possible bias of Martinez as a result of that relationship was "patently obvious" to the jury, the trial court did not abuse its discretion in limiting cross-examination.

Furthermore, error if any, was harmless. See Tex. R. App. P. 44.2(a). As mentioned earlier, appellant was allowed to cross-examine Martinez about whether she was involved with Ellis at the time of the offense. Also, appellant testified that, on the night of the incident, he had tried to call Martinez several times, but the telephone was busy. When he got home, appellant and Martinez argued about whom she had been on the telephone with for so long. Appellant hit redial on the telephone and discovered that Martinez had been talking to Ellis on the telephone. Thus, the issue of Martinez's relationship with Ellis was thoroughly presented to the jury through the testimony of both Martinez and appellant. As such, the trial court's refusal to allow appellant to ask Martinez whether it was a coincidence that Ellis was the person who urged her to go to the police was harmless error, if error at all. See Clark v. State, 881 S.W.2d 682, 695-97 (Tex. Crim. App. 1994) (holding that denial of cross-examination was harmless when the same evidence defendant sought was admitted through testimony of another witness).

Accordingly, we overrule point of error two.

INEFFECTIVE ASSISTANCE OF COUNSEL

In point of error three, appellant contends he received ineffective assistance of counsel at the punishment hearing. Specifically, appellant argues that counsel was ineffective because, even though appellant filed an application for community supervision, counsel failed to elicit testimony at trial to show that appellant was eligible for community supervision, i.e., that appellant had not been previously convicted of a felony. See Tex. Code Crim. Proc. Ann. art. 42.12, § 4(e) (Vernon Supp. 2007).

The standard for reviewing claims of ineffective assistance is well-established. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 2068 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex. Crim. App. 1999). Appellant bears the burden of proving by a preponderance of the evidence that counsel was deficient. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). To prevail, appellant must show (1) trial counsel's assistance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thompson, 9 S.W.3d at 812. Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Thompson, 9 S.W.3d at 813; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). This standard applies to claims of ineffective assistance of counsel in both the guilt-innocence phase and in the punishment phase of noncapital trials. Hernandez, 988 S.W.2d at 770.
The assessment of whether a defendant received effective assistance of counsel is made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. [Panel Op.] 1979). Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland, 928 S.W.2d at 500. We look to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. See Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). When determining the validity of a defendant's claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Thus, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Appellant relies on Ware v. State, 875 S.W.2d 432 (Tex. App.--Waco 1994, pet. ref'd) to argue that counsel was ineffective because of his failure to elicit evidence that appellant had no prior felony convictions. In Ware, the defendant filed an application for probation, but defense counsel did not elicit testimony at the punishment hearing to show that appellant was eligible for probation. Id. at 433. Nevertheless, the jury charge included instructions on the law of probation. Id. During deliberations, the jury sent out several notes regarding the applicability of probation. Id. The jury also reached several illegal verdicts, including one indicating that it wished to sentence appellant to 11 years' confinement with 10 years' probation. Id. at 434. In a motion for new trial, the defendant introduced the affidavit of a juror who claimed that there were questions from several jurors regarding whether the defendant had ever before been convicted. Id. Two other jurors filed affidavits stating that they knew that probation was an option. Id. The appellate court held as follows:

Under the narrow circumstances of this case--counsel's failure to prove Ware's eligibility for probation, the jury's note asking for information on eligibility, its attempt to probate a portion of Ware's sentence, and the limited 'totality of the representation' that we have for review--we find counsel's performance at punishment did not meet the 'reasonably effective assistance' standard.

Id. at 437.

We find Ware to be distinguishable on several bases. First, counsel in this case elicited some information regarding appellant's eligibility for community supervision. Though counsel did not specifically question appellant about whether he had any prior convictions, counsel did ask appellant whether he was "eligible for probation," to which appellant replied, "Yes." Second, there was no jury note requesting information on appellant's eligibility for community supervision. The only jury note in this case questioned what would happen if the jury failed to reach a unanimous verdict. Third, the jury did not indicate any desire to probate appellant's sentence by attempting to enter a probated sentence. Finally, and most importantly, Ware was decided under the now-abandoned Duffy ⁽¹⁾ standard for ineffective assistance of counsel at punishment.

Under Duffy, the test for ineffective assistance of counsel at a noncapital punishment hearing was whether the defendant received reasonably effective assistance of counsel, i.e., whether counsel was likely to render effective assistance and whether counsel reasonably rendered effective assistance. Ex parte Duffy, 607 S.W.2d 507, 514 n.14 (Tex. Crim. App. 1980). The two-part Strickland test, however, requires not only (1) that counsel be reasonably effective, but (2), if ineffective, that there exist a reasonable probability that the outcome would have been different but for the ineffective assistance. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The Ware court acknowledged that "[i]f we were to apply Strickland, we perhaps would not reverse the judgment." Ware, 875 S.W.2d at 436.

As stated earlier, the present case is decided under the two-part Strickland test, and appellant cannot meet the second prong of Strickland. That is, appellant has not shown that, but for counsel's failure to elicit testimony regarding appellant's lack of prior felony convictions, the result of the punishment hearing would have been different. The jury was given the option of giving appellant community supervision, and there is nothing in the record to show that the jury had a question about appellant's eligibility for community supervision.

Accordingly, we overrule point of error three.

CONCLUSION

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Do not publish. Tex. R. App. P. 47.2(b).

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