Missick, Phillip A. v. State

• Court: Court of Appeals of Texas
• Decided: July 12, 2005
• Docket: 14-03-01413-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 12, 2005

Affirmed and Memorandum Opinion filed July 12, 2005.

In The

Fourteenth Court of Appeals

____________

NOS. 14-03-01412-CR &

      14-03-01413-CR

PHILLIP A. MISSICK, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________

On Appeal from the County Court at Law

Walker County, Texas

Trial Court Cause Nos. 01-610 & 01-611

M E M O R A N D U M   O P I N I O N

Appellant, Phillip A. Missick, challenges his convictions for resisting arrest and criminal trespass, raising twelve issues on appeal.  With respect to his conviction for resisting arrest, appellant argues (1) the complaint is fatally defective; (2) the information is fatally defective because it is allegedly based on a fatally defective complaint; (3) jury charge error; (4) the judgment is void because it is allegedly based on a fundamentally defective information; (5) the evidence is legally and factually insufficient to sustain his conviction; and (6) appellant=s trial counsel rendered ineffective assistance of counsel.  With respect to his conviction for criminal trespass, appellant argues (7)B(9) the complaint is fatally defective; (10) the information is fatally defective because it is allegedly based on a fatally defective complaint; (11) the judgment is void because it is allegedly based on a fatally defective information; and (12) appellant=s trial counsel rendered ineffective assistance of counsel.  We affirm.

I.  Factual and Procedural Background

Appellant was arrested on March 5, 2001, while participating in a pro-life demonstration on the campus of Sam Houston State University in Huntsville, Texas.  Frank Parker, Dean of Students, asked appellant several times to move the demonstration to the free speech area of the university or to leave the campus.  Appellant refused to move.  Officer William Farmer of the Sam Houston State University Police Department asked appellant to leave campus and told appellant he would be arrested if he refused.  Appellant again refused to leave, and Officer Farmer placed appellant under arrest for criminal trespass.  Officer Farmer grabbed one of appellant=s arms to handcuff him, and appellant jerked away.  Officer Farmer advised appellant that he was under arrest for criminal trespass and grabbed his arm again.  Appellant pushed Officer Farmer in the chest and pulled his arm away.  Officer Farmer advised appellant he was resisting arrest, but appellant kept jerking his arm away each time Officer Farmer tried to handcuff him.  Finally, Officer Farmer placed appellant in a headlock and handcuffed him.

Appellant was charged by information with criminal trespass and resisting arrest.  See Tex. Pen. Code Ann. ' 30.05 (Vernon Supp. 2004B2005), ' 38.03 (Vernon 2003).  He pleaded not guilty to both offenses.  Appellant was tried on both charges together.  The jury found appellant guilty of both offenses as charged in the information.  The trial court assessed punishment at 180 days in the Walker County Jail for each offense, with the sentences to run concurrently.  The sentences were suspended, and appellant was placed on probation for two years.  The trial court also assessed an $800 fine for the criminal trespass conviction.

II.  Issues and Analysis

A.        Are the complaint and information charging appellant with resisting arrest fatally defective?

In his first issue, appellant contends that because the complaint charging him with resisting arrest alleges an additional culpable mental state, it is fatally defective because it does not charge appellant with an offense as defined by Texas law.  In his second issue, appellant argues the information charging him with resisting arrest is fatally defective because the complaint upon which it is based is fatally defective.

A person is guilty of resisting arrest if that person intentionally prevents or obstructs a person he knows is a peace officer from effecting an arrest of that person by using force against the peace officer.  Tex. Pen. Code Ann. ' 38.03(a).  The complaint and information in this case charge the culpable mental state as Aintentionally and knowingly@ instead of just Aintentionally@ as prescribed by the statute.  See id.

A complaint is an affidavit made before a magistrate or district or county attorney that charges the commission of the offense.  Tex. Code Crim. Proc. Ann. art. 15.04 (Vernon 2005).  Among other requirements, a complaint must show that the accused has committed an offense under Texas law.  Tex. Code Crim. Proc. Ann. art. 15.05(2) (Vernon 2005).  An information is a written statement filed and presented on behalf of the State by a district or county attorney, charging the defendant with an offense.  Tex. Code Crim. Proc. Ann. art. 21.20 (Vernon 1989).  An information must be accompanied by a complaint charging the defendant with an offense.  See Tex. Code Crim. Proc. Ann. art. 21.22 (Vernon 1989).

In his first issue, appellant argues the complaint underlying the information is fatally defective because it charges an additional culpable mental state.  Appellant raises this issue for the first time on appeal.  A defect in a complaint underlying an information must be raised before trial pursuant to article 27.03(1) of the Texas Code of Criminal Procedure.  Aguilar v. State, 846 S.W.2d 318, 320 (Tex. Crim. App. 1993); see Tex. Code Crim. Proc. Ann. art. 27.03(1) (Vernon 1989) (stating that a motion to set aside an information may be based on the grounds that the information was not based upon a valid complaint).  Even if the complaint underlying the information is invalid, appellant cannot raise this issue for the first time on appeal.  See Aguilar, 846 S.W.2d at 320.  Accordingly, we overrule appellant=s first issue.

In his second issue, appellant argues the information charging him with resisting arrest is fatally defective because the complaint upon which it is based is fatally defective.   Appellant raises this issue for the first time on appeal.  Because appellant did not object to the information prior to trial, he waived any contention that the information was defective for the reason it was based upon a defective underlying complaint.  See Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003).  Therefore, we overrule appellant=s second issue.

B.        Are the complaint and information charging appellant with criminal trespass fatally defective?

In his seventh, eighth, and ninth issues, appellant contends that because the complaint charging him with criminal trespass alleges the culpable mental state in the disjunctive, it is fatally defective because, appellant argues, it does not charge appellant with criminal trespass as defined by Texas law.  In his tenth issue, appellant argues the information charging him with criminal trespass is fatally defective because the complaint upon which it is based is fatally defective.

A person commits the offense of criminal trespass if that person remains on the property of another without effective consent and he received notice to depart but failed to do so.  Tex. Pen. Code Ann. ' 30.05(a)(2).  Even though the statutory language of section 30.05(a)(2) does not prescribe a culpable mental state, one is nevertheless required.  See Tex. Pen. Code Ann. ' 6.02(b) (Vernon 2003).  Intent, knowledge, or recklessness is sufficient to establish responsibility for criminal trespass.  Day v. State, 532 S.W.2d 302, 306 n.2 (Tex. Crim. App. 1976); see Tex. Pen. Code Ann. ' 6.02(c).  The complaint in this case charged that appellant intentionally or knowingly remained on the property without Dean Parker=s effective consent and appellant received notice to depart but failed to do so.

In his seventh issue, appellant asserts the complaint is fatally defective because the culpable mental state is charged in the disjunctive rather than in the conjunctive.  Appellant argues that the use of the disjunctive renders the allegation vague and uncertain.  In his reply brief, appellant recognizes that pleading the disjunctive is permissible, and abandons this issue on appeal.  See, e.g., Hunter v. State, 576 S.W.2d 395, 399 (Tex. Crim. App. 1979).  Accordingly, we overrule appellant=s seventh issue.

In his eighth issue, appellant contends the complaint fails to charge him with the offense of criminal trespass under Texas law because the complaint charges him with criminal trespass in two ways by charging the culpable mental state in the disjunctive.  Therefore, appellant argues, the complaint is fatally defective.  In his ninth issue, appellant argues the complaint fails to charge appellant with criminal trespass under Texas law because it charges two culpable mental states when section 6.02 of the Texas Penal Code only authorizes a single culpable mental state.  As noted above, a defect in a complaint underlying an information must be raised before trial pursuant to article 27.03(1) of the Texas Code of Criminal Procedure.  Aguilar, 846 S.W.2d at 320; see Tex. Code Crim. Proc. Ann. art. 27.03(1).  Presuming without deciding that the complaint underlying the information is invalid, appellant cannot raise this issue for the first time on appeal.  See Aguilar, 846 S.W.2d at 320.  Accordingly, we overrule appellant=s eighth and ninth issues.

In his tenth issue, appellant argues the information charging him with criminal trespass is fatally defective because the complaint upon which it is based is fatally defective.  As stated in the previous section, because appellant did not object to the information prior to trial, he waived any contention that the information was defective because it was based upon a defective underlying complaint.  See Ramirez, 105 S.W.3d at 630.  Therefore, we overrule appellant=s tenth issue.

C.        Did the trial court incorrectly charge the jury on resisting arrest?

In his third issue, appellant claims the trial court incorrectly charged the jury on resisting arrest because the culpable mental state in the application paragraph of the charge conflicted with the culpable mental state in (1) the statutory definition of the offense; (2) the abstract instruction in the jury charge; and (3) the trial court=s oral instructions to the jury.  Therefore, appellant argues, the charge was fundamentally erroneous because it misstated the applicable law and confused the jury. 

Section 38.03(a) of the Texas Penal Code states that a person is guilty of resisting arrest if that person intentionally prevents or obstructs a person he knows is a peace officer from effecting his arrest by using force against the peace officer.  Tex. Pen. Code Ann. ' 38.03(a).  The abstract instruction on resisting arrest tracked this language.  The application paragraph, however, authorized the jury to convict appellant if he intentionally and knowingly prevented and obstructed Officer Farmer from arresting him.^[1]  The trial court orally instructed the jury that it could find appellant guilty if he intentionally or knowingly prevented and obstructed Officer Farmer from arresting him.  No objection to the jury charge was made regarding the culpable mental state required to convict appellant of resisting arrest.

When defense counsel does not object to a jury charge, the error, if any, does not require reversal unless it was so egregious and created such harm that appellant was denied a fair trial.  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  Appellant argues that the application paragraph was erroneous and this error was prejudicial to him because the conflicting instructions confused the jury and reduced the State=s burden of proof.  The jury charge limited the jury to the law contained in the charge, stating that the jury was Abound to receive the law from the Court which is herein given to you and governed thereby.@ We presume the jury followed the instructions in the jury charge.  See Will v. State, 794 S.W.2d 948, 951 (Tex. App.CHouston [1st Dist.] 1990, pet. ref=d).  This presumption is rebuttable, but appellant has pointed to no evidence that the jury was confused by the discrepancy between these instructions and the jury charge or that it followed the trial court=s oral instruction instead of the jury charge.  We conclude that appellant has not shown egregious error.

Even if the inclusion of a lesser culpable mental state in the application paragraph of the jury charge was error, it was not harmful.  Because Aintentionally@ is a greater culpable mental state than Aknowingly,@ intent includes knowledge.  See Tex. Pen. Code Ann. ' 6.02(d), (e).  The application paragraph authorized the jury to convict appellant only if it found that he intentionally and knowingly prevented and obstructed Officer Farmer from arresting him.  The State=s burden of proof was not reduced because it was still required to prove that appellant acted intentionally.  Therefore, we overrule appellant=s third issue.

D.        Are the judgments convicting appellant of resisting arrest and criminal trespass valid?

In his fourth and eleventh issues, appellant asserts the judgments convicting appellant of resisting arrest and criminal trespass are invalid because (1) each judgment was based on a defective information and (2) the trial court lacked jurisdiction to hear either cause.

A substantive defect in a charging instrument does not automatically render a judgment void.  Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998).  Under the Texas Constitution, an information must charge a person with the commission of an offense. Tex. Const. art. V, ' 12(b).  An information that is flawed by a substantive defect but which purports to charge an offense is not fundamentally defective.  Ex parte Patterson, 969 S.W.2d at 19.  Such an information will support a conviction in the absence of a timely, pretrial objection.  Id.  As previously discussed, appellant did not object to either information before trial, and he raises this argument for the first time on appeal.  Presuming without deciding that each information is flawed by a substantive defect, appellant cannot challenge the validity of either judgment on appeal.  See id. 

Appellant also contends the judgments are void because the trial court lacked jurisdiction in both causes.  Appellant argues the trial court lacked jurisdiction because each information was predicated on a defective complaint.  Presentment of an information to a trial court invests the court with jurisdiction over the defendant regardless of any defect that might exist in the underlying complaint.  Aguilar, 846 S.W.2d at 318; see Tex. Const. art. V, ' 12(b).

Accordingly, we overrule appellant=s fourth and eleventh issues. 

E.        Is the evidence legally and factually sufficient to support appellant=s conviction  for resisting arrest?

In his fifth issue, appellant complains the evidence is legally and factually insufficient to support his conviction for resisting arrest.  A person is guilty of resisting arrest if that person intentionally prevents or obstructs a person he knows is a peace officer from effecting an arrest of that person by using force against the peace officer.  Tex. Pen. Code Ann. ' 38.03(a).  The application paragraph of the jury charge changed the Aprevents or obstructs@ element to Aprevents and obstructs,@authorizing the jury to find appellant guilty only if it found appellant intentionally and knowingly prevented and obstructed Officer Farmer from arresting appellant by using force against Officer Farmer by pushing him.  Appellant argues the evidence is legally and factually insufficient to support his conviction because there is no evidence appellant both prevented and obstructed his arrest.

We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically-correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  A hypothetically correct jury charge accurately sets out the law, is authorized by the charging instrument, and adequately describes the particular offense for which appellant was tried.  Id.  The hypothetically correct application paragraph in this case would have authorized the jury to convict appellant of resisting arrest if he intentionally prevented or obstructed Officer Farmer from effecting the arrest of appellant by using force against Officer Farmer by pushing him.  See Tex. Pen. Code Ann. ' 38.03(a).  Recognizing the holding in Malik as applied to this case, appellant, in his reply brief, abandons his contention that the evidence is insufficient to support his conviction because there is no evidence appellant prevented his arrest.  We now discuss whether there was sufficient evidence for a jury to find that appellant obstructed his arrest.

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellants= evidence outweighs the State=s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).  The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  The jury may choose to believe or disbelieve any portion of the witnesses= testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party.  Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.  McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

Appellant argues the evidence is legally insufficient because the evidence indicates he was evading, not resisting, arrest.  Appellant points to his testimony and that of Rose Wrider as evidence that he was merely evading arrest.  Wrider, a fellow protestor, testified that she saw appellant step away from Officer Farmer right before appellant was placed in a headlock. Appellant also testified that he pulled away from Officer Farmer, but did not push him.  Evidence offered by the State, however, showed appellant=s actions went beyond merely evading arrest.  Officer Farmer testified that appellant continually jerked away from him and pushed him once or twice in the chest while he was trying to arrest appellant.  Officer Farmer also testified that appellant=s actions obstructed Officer Farmer from arresting appellant.

Appellant also argues the evidence is legally insufficient because pushing Officer Farmer in the chest and jerking away from him is not sufficient to establish that appellant used force against an officer.  Appellant asserts that, while Officer Farmer testified appellant=s actions obstructed appellant=s arrest, Officer Farmer did not testify as to the forcefulness of appellant=s pushing or that he was obstructed from making the arrest by appellant=s pushing.  Pushing and pulling away from an officer=s detaining grip is legally sufficient to establish that appellant used force against an officer.  See Bryant v. State, 923 S.W.2d 199, 207B08 (Tex. App.CWaco 1996, pet. ref=d).  After evaluating the evidence in a light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant=s conviction for resisting arrest.

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  A reviewing court may find the evidence factually insufficient in two ways.  Id.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Id. at 484B85.  In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Id. at 481B82.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant argues the evidence is factually insufficient to support his conviction for resisting arrest because the evidence was insufficient to show appellant obstructed his arrest by pushing Officer Farmer.  Officer Farmer testified at trial that appellant pushed him once or twice in the chest while he was trying to arrest appellant.  In contrast, appellant testified that he never pushed Officer Farmer but may have pulled away from him once.  Because the jury is the sole judge of the credibility of witnesses and the weight to be given their testimony, we defer to its decision.  When faced with conflicting testimony from appellant and Officer Farmer, the jury chose to believe Officer Farmer=s version of events.  After viewing all of the evidence in a neutral light, we find (1) the evidence supporting the verdict is strong enough to support the finding of guilt beyond a reasonable doubt, and (2) that the contrary evidence is not strong enough to prevent the beyond-a-reasonable-doubt standard from being met.  Therefore, we conclude the jury was rationally justified in finding appellant guilty beyond a reasonable doubt.  Accordingly, we find the evidence factually sufficient to support appellant=s conviction.

Having found the evidence both legally and factually sufficient to support appellant=s conviction for resisting arrest, we overrule appellant=s fifth issue.

F.        Did appellant receive ineffective assistance of counsel?

In his sixth and twelfth issues, appellant asserts he was denied reasonably effective assistance of counsel.  Appellant argues his counsel was ineffective because his counsel allegedly failed to (1) quash the information and underlying complaint in each cause; (2) question prospective jurors about any possible bias or prejudice; (3) object to unresponsive, conclusory, and narrative answers by Dean Parker; (4) argue his motion for directed verdict at the close of the State=s case; (5) make a motion for directed verdict at the close of the evidentiary phase of the trial; (6) make an opening statement; (7) inquire further into the existence of a videotape of the protest; and (8) object to the jury charge.  Appellant also claims that the accumulation of these alleged errors amounted to ineffective assistance of counsel.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 688B92.  Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). 

In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim.  Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).

Although the Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy, our high court has been inconsistent in describing the legal standard by which we should determine whether a particular case constitutes such a rarity.  See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) (stating that facts at hand presented a Arare case@ in which ineffective assistance can be found on direct appeal based on a record silent as to counsel=s trial strategy); Andrews, 159 S.W.3d at 104 (Keller, P.J., dissenting) (stating that the Court of Criminal Appeals has been inconsistent in its approaches to ineffective assistance claims on direct appeal based on a silent record and indicating that the court=s approach in Andrews is inconsistent with its approach in Freeman v. State, 125 S.W.3d 505 (Tex. Crim. App. 2003)); see also Storr v. State, 126 S.W.3d 647, 655B58 (Tex. App.CHouston [14th Dist.] 2004, pet ref=d) (Frost, J., dissenting) (stating that court should follow latest guidance from the Court of Criminal Appeals in Freeman).  The Court of Criminal Appeals recently indicated that appellate courts should find ineffective assistance as a matter of law if no reasonable trial strategy could justify trial counsel=s conduct, regardless of whether the record adequately reflects trial counsel=s subjective reasons for acting as she did.  See Andrews, 159 S.W.3d at 102.  Shortly thereafter, the Court of Criminal Appeals returned to an earlier formulation and stated that, absent an opportunity for trial counsel to explain her actions, appellate courts should not find ineffective assistance unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@  Goodspeed v. State, __ S.W.3d __, __, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).  Accordingly, we follow the legal standard from Goodspeed.

In this case, there was no motion for new trial.  The record is silent as to trial counsel=s strategy.  With respect to sub-issues two and six, trial counsel=s representation was not deficient.  Appellant asserts he was denied effective assistance because trial counsel failed to question prospective jurors about any bias or prejudice they might have had concerning abortion, abortion protestors, and outsiders= rights to free speech on university campuses.  He also contends trial counsel should have asked prospective jurors about any connection they or their relatives may have had with Sam Houston State University or Dean Parker.  Appellant argues that because of trial counsel=s allegedly inadequate voir dire, neither trial counsel nor the State made a motion to strike a juror for cause.  As a result, appellant claims, his right to a fair trial was impaired.

Both trial counsel and the State questioned the prospective jurors about bias and prejudice in general.  The State also asked prospective jurors if they could be fair and were able to listen to the evidence and make a decision based on the law.  Based on the record before us, we cannot say that appellant=s trial counsel=s performance was so outrageous that no competent attorney would have engaged in it.  See Armstrong v. State, 897 S.W.2d 361, 364 n.1 (Tex. Crim. App. 1995) (stating defense counsel is entitled to rely on the voir dire examination of the State); Weaver v. State, 999 S.W.2d 913, 912B20 (Tex. App.CWaco 1999, no pet.) (finding defendant=s claim that counsel was ineffective for failing to question potential jurors about involvement with law enforcement was not substantiated by record where counsel=s questions were aimed at jurors= prejudices and their ability to follow the law).

Appellant also complains he received ineffective assistance because trial counsel did not make an opening statement.  Appellant claims he was prejudiced because the jury was not presented with an outline of the defenses trial counsel intended to present and develop during the defensive phase of trial.  Trial counsel=s decision not to make an opening statement could be a matter of plausible trial strategy.  See Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.CFort Worth 1997, pet ref=d).  Therefore, we conclude that trial counsel=s conduct in opting not to present an opening argument was not so outrageous that no competent attorney would have engaged in it.

As to the remaining sub-issues, even if appellant were able to satisfy the first prong of the Strickland analysis, his ineffective-assistance claims would fail because he cannot demonstrate that there is a reasonable probability that the outcome of his trial would have been different had trial counsel not acted the way he did.  Appellant cannot show he was harmed by trial counsel=s failure to file a motion to quash the information and underlying complaint in each cause.  See Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995).  The State is authorized to amend a defective information after it is quashed.  Tex. Code Crim. Proc. Ann. Art. 28.10 (Vernon 1989).  Had trial counsel filed a motion to quash, the State could have amended the charging instrument to allege the correct culpable mental state.  See id.

Appellant contends he was harmed by trial counsel=s failure to object to unresponsive answers, improper conclusory answers, and narrative answers by Dean Parker.  Specifically, appellant points to statements in which Dean Parker stated he believed in a person=s right of free speech; he wanted appellant to be on campus because he wanted to be there; he had concern about the protestors= safety on campus; his policies concerning people coming on campus to exercise their freedom of speech were more lenient than those in the student handbook; he received complaints about free speech activities disrupting classes; he was a Baptist deacon; another protestor arrested that day left the scene calmly, as if he Aknew the drill@; and he had no interest in seeing anyone arrested that day.  Appellant also complains that Dean Parker=s testimony concerning the university=s free speech policy was improper because his explanation of the policy was incorrect and contained personal opinions.  Appellant does not articulate, nor do we see, how the admission of these portions of Dean Parker=s testimony were prejudicial to appellant.

At the conclusion of the State=s case, appellant made a motion for directed verdict on the grounds the State failed to prove all elements of each offense.  The trial court denied the motion.  Appellant argues the motion appeared to be perfunctory and trial counsel should have argued the motion.  Trial counsel also did not move for directed verdict at the conclusion of the evidentiary phase of the trial.  Appellant argues trial counsel should have done so because he raised several defenses during the defensive phase of the trial and failure to move for a directed verdict was prejudicial.  The possibility that a directed verdict may have been granted is not sufficient to show that counsel=s failure to make the motion constituted deficient performance that prejudiced appellant.  See McGarity v. State, 5 S.W.3d 223, 229 (Tex. App.CSan Antonio 1999, no pet.).  If failure to make a motion for directed verdict is not prejudicial, we cannot conclude appellant was harmed by trial counsel=s failure to argue the motion he made at the conclusion of the State=s case.

Appellant argues trial counsel was ineffective because he failed to ask appellant whether he had been filming during the protest and, if so, where the videotape was.  A videotape was not presented at trial.  Dean Parker testified appellant was filming the protest.  The State questioned Wrider about the videotape; she agreed that there was a videotape of the protest and stated that appellant=s trial counsel had the videotape.  Appellant claims he was harmed because in its closing argument, the State questioned why the videotape was not offered into evidence and played for the jury and suggested that the absence of the videotape implied that the event transpired the way that Dean Parker and Officer Farmer described and not as appellant and Wrider recounted.  Neither the trial record nor appellant=s brief on appeal indicate if the videotape actually exists or what is on it.   Therefore, appellant has not shown if or how he was harmed by his trial counsel=s failure to inquire about and produce the videotape.

Appellant asserts trial counsel was ineffective because he did not object to the jury-charge application paragraph on resisting arrest, which charged the culpable mental state as Aintentionally and knowing@ instead of just Aintentionally@ as prescribed by the statute.  See Tex. Pen. Code Ann. ' 38.03(a).  As discussed in issue three, error in the jury charge, if any, was not harmful to appellant.  Therefore, appellant cannot show that the result of the trial would have been different had trial counsel objected to the charge.

Finally, appellant claims the accumulation of trial counsel=s error amounted to a denial of effective assistance of counsel.  Though multiple errors might be found harmful in their cumulative effect, the cumulative effect of issues not found to be error cannot constitute error.  Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).  We conclude appellant was not denied reasonably effective assistance of counsel.  Accordingly, we overrule appellant=s sixth and twelfth issues.

Having overruled appellant=s twelve issues on appeal, we affirm the judgment of the trial court.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed July 12, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

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

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^[1]  In this issue, appellant does not challenge the Aprevent and obstruct@ language in the application paragraph, which also conflicts with the statutory language and the abstract instruction.