Robert Ferguson v. State
This text of Robert Ferguson v. State (Robert Ferguson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Appellant
Appellee
Before QUINN and REAVIS, JJ., and BOYD, S.J. (1)
Appellant, Robert Ferguson, appeals his conviction for aggravated assault with a deadly weapon. His four issues concern whether 1) the trial court erred in failing to give a limiting instruction to the jury or alternatively declare a mistrial after the State allegedly engaged in improper jury argument, 2) trial counsel's failure to object to allegedly improper jury argument constituted ineffective assistance of counsel, 3) the trial court erred in overruling his objection to the introduction into evidence of a co-defendant's bloody clothing, and 4) the sentence and fine imposed were disproportionate to the crime and, therefore, cruel and unusual punishment. We affirm the judgment of the trial court.
Issue One - Jury Argument
Appellant initially argues that the trial court should have given a limiting instruction or declared a mistrial when the State improperly referred to the assault as being "premeditated." However, when the prosecutor made the comment, appellant did not object. Thus, he waived any complaint he had to it. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997) (holding that a defendant's failure to object to jury argument forfeits his right to complain on appeal); Andrews v. State, 106 S.W.3d 402, 405 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd) (holding that a defendant's failure to object to allegedly improper jury argument waives any complaint on appeal); Jones v. State, 900 S.W.2d 392, 397 (Tex. App.-San Antonio 1995, pet. ref'd) (holding that since the appellant did not object, ask for an instruction, or request a mistrial, nothing is preserved for review), and we overrule the issue.
Next, appellant asserts that the failure to object to the allegedly improper jury argument discussed under issue one constituted ineffective assistance of counsel. We overrule the issue for several reasons.
First, appellant provides us with no argument or analysis supporting the issue, as required by the rules of appellate procedure. Tex. R. App. P. 38.1(h) (stating that the brief must contain a clear and concise argument for the contentions made). He merely alludes to issue one and concludes that the failure to object evinced ineffective assistance of counsel. Thus, he again waived his complaint. See Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex. App.-Amarillo 1998, no pet.) (holding that the failure to provide the court with any discussion of the facts and authorities relied on results in the waiver of the complaint).
Second, the State may properly summarize evidence and draw reasonable inferences therefrom during its jury argument. Brown v. State, 692 S.W.2d 497, 502 (Tex. Crim. App. 1985) (holding that permissible areas of jury argument are a summation of the evidence, a reasonable deduction from the evidence, an answer to opposing counsel's argument, and a plea for law enforcement). Here, evidence appeared of record illustrating that 1) appellant had wanted to fight his victim earlier in the evening and 2) appellant's companion told appellant to wait and "we'll take care of it" when they arrived at their destination. This is some evidence indicative of premeditation, i.e. that appellant had planned to assault the victim. Because of that, it can be said that the prosecutor was simply making reasonable deductions from the evidence when he alluded to the fight as being premeditated.
So, conceivably, the potential validity of the argument may have swayed defense counsel to forego objecting. In other words, defense counsel's silence may have been intentional and related to trial strategy. Additionally, since the record neither illustrates counsel's motives for withholding objection nor dispels the notion that his silence was part of some trial strategy, appellant did not overcome the presumption that counsel acted effectively or pursuant to a sound strategy. Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001) (holding that because the record was silent as to why defense counsel failed to object, it was insufficient to overcome the presumption that his actions were part of a strategic plan); Rios v. State, 990 S.W.2d 382, 385 (Tex. App.-Amarillo 1999, no pet.) (stating that claims of ineffective assistance must be firmly founded in the record).
Appellant next complains of the trial court's decision to admit into evidence the bloody shirt and pants of Billy Joe DeBusk, appellant's companion. The clothing was allegedly inadmissible because it was irrelevant and its probative value was substantially outweighed by the danger of unfair prejudice. We overrule the issue.
Whether the trial court erred in admitting the evidence depends upon whether it abused its discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). Whether it abused its discretion depends upon whether the decision fell outside the zone of reasonable disagreement. Id.
Here, the evidence showed that during a fight, appellant used a knife to cut his victim in the face several times. Appellant insinuated that he acted in self-defense. However, one witness testified that while appellant and this victim fought, DeBusk placed a choke hold on the victim and so held him until the victim fell unconscious.
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Robert Ferguson v. State, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-ferguson-v-state-texapp-2004.