                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00092-CR
        ______________________________


       RANDY DALE BARNETT, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the Sixth Judicial District Court
               Lamar County, Texas
               Trial Court No. 23473




     Before Morriss, C.J., Carter and Moseley, JJ.
          Opinion by Chief Justice Morriss
                                           OPINION

       The turbulent scene in the Sunriser Diner began when a tearful, red-faced, Kitty Rowland

dashed into the Sunriser and immediately headed for the ladies‘ room. Soon thereafter, Randy

Dale Barnett strolled into the diner and entered the men‘s room. After both emerged back into the

dining area, Rowland and Barnett settled into a booth by the front door and ordered coffee from

waitress Lisa Dale Wagner. The ensuing argument between the pair was witnessed by Wagner

and by diner cook Sandy Flynn and regular customer James Bryan. The argument escalated into

more tears from Rowland and anger, threats, and verbal abuse from Barnett. When Bryan sought

to verbally defuse the argument and threatened to call police, Barnett reportedly pulled a knife and

threatened Bryan.

       As a result, Barnett was convicted for aggravated assault with a deadly weapon and

sentenced to fifty years‘ imprisonment. On appeal, Barnett urges a number of issues. We affirm

the trial court‘s judgment because (1) sufficient evidence supports Barnett‘s conviction,

(2) ineffective assistance of counsel has not been shown, (3) the officer‘s testimony that the knife

was a deadly weapon was lay testimony, (4) the appellate complaint of bolstering was not

preserved, (5) Barnett was not entitled to the appointment of a different attorney, (6) the mistrial

motion was properly denied, and (7) a definition of serious bodily injury was not required.

(1)    Sufficient Evidence Supports Barnett’s Conviction

       Barnett argues that the evidence is legally insufficient to prove that he used or exhibited a



                                                 2
deadly weapon when threatening Bryan. We disagree.

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to the

trial court‘s judgment to determine whether any rational jury could have found the essential

elements of aggravated assault with a deadly weapon beyond a reasonable doubt. Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref‘d). Our

rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323

S.W.3d at 917 (Cochran, J., concurring). We examine legal sufficiency under the direction of the

Brooks opinion, while giving deference to the responsibility of the jury ―to fairly resolve conflicts

in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

       Legal sufficiency of the evidence is measured 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); see Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); see also Vega v. State,

267 S.W.3d 912, 916 (Tex. Crim. App. 2008). Barnett‘s indictment alleges he ―did then and there

intentionally or knowingly threaten imminent bodily injury to James Bryan by threatening to cut

James Bryan and the defendant did use or exhibit a deadly weapon during the commission of the

assault, to-wit: a knife.‖



                                                 3
       Barnett committed the offense of aggravated assault if he, intentionally or knowingly

threatened Bryan with imminent bodily injury and used or exhibited a deadly weapon during the

threat. TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) (Vernon 2011). A deadly weapon is

anything that, in the manner of its use or intended use, is capable of causing death or serious bodily

injury. TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (Vernon 2011).

       As the confrontation developed, when Bryan reached for his cell phone, Barnett reportedly

shoved him, ―brought a pocketknife [sic] out of his pocket, put it up to [Bryan‘s] ribs and said, I‘ll

cut it from side to—I‘ll kill you too.‖ Bryan testified that he saw the two inch blade and ―very

well felt he would cut me.‖ Flynn saw that Barnett ―was standing in the doorway with his hand

down to his side‖ with what ―appeared to be a knife, the point blade of a knife‖ in his hands.

When Flynn picked up a telephone and dialed 9-1-1, Barnett fled, leaving Rowland behind.

       Although Flynn testified she saw a knife, she did not see Barnett attempt to cut or shove

Bryan. Instead, she testified Barnett was standing in the doorway when he brandished the knife.

Wagner also testified that, while the men were ―just kind of standing face-to-face,‖ she did not see

Barnett shove Bryan. Wagner also said she did not see a knife. Rowland, who was not at trial,

signed an affidavit that stated, ―other people there said that [Barnett] pulled out his pocket knife. I

never saw him and in the last 3 months [Barnett has] not carried one that I know of.‖

       Here, Bryan testified that Barnett shoved him, placed a two inch blade on the lower part of

his ribs, and said, ―I‘ll cut it from side to—I‘ll kill you too.‖ Bryan‘s testimony that he ―very well



                                                  4
felt [Barnett] would cut me,‖ demonstrates the immediacy and nature of the threat. A police

officer testified that the pocket knife was a deadly weapon capable of causing death or serious

bodily injury.

       Although there is evidence contradicting Bryan‘s testimony, the jury was the exclusive

judge of credibility of witnesses, the weight to be given their testimony, and reconciliation of

conflicts in the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). The jury

was free to find that Bryan was in the best position to observe Barnett‘s threats. We find the

evidence legally sufficient to establish that Barnett intentionally or knowingly threatened Bryan

that he would cut him while brandishing a knife. There was testimony that the knife could be

considered a deadly weapon capable of causing death or serious bodily injury. Therefore, we find

the evidence legally sufficient to sustain Barnett‘s conviction for aggravated assault with a deadly

weapon. Barnett‘s first point of error is overruled.

(2)    Ineffective Assistance of Counsel Has Not Been Shown

       Barnett claims that he received ineffective assistance of counsel in a number of ways.

       In order to ultimately prevail in an ineffective assistance of counsel claim, a defendant

seeking to challenge counsel‘s representation must establish that his or her counsel‘s performance

was deficient and prejudiced the defense. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App.

2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Mitchell v. State, 68 S.W.3d

640, 642 (Tex. Crim. App. 2002)). Any allegation of ineffectiveness of counsel must be firmly



                                                 5
founded in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576,

589 (Tex. App.—Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003). From the

record received by this Court, which includes the hearing on Barnett‘s motion for new trial,

Barnett bears the burden of proving by a preponderance of the evidence that his counsel was

ineffective. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668

S.W.2d 401, 403 (Tex. Crim. App. 1984).

       We apply the two-pronged Strickland test handed down by the United States Supreme

Court to determine whether Barnett received ineffective assistance of counsel. Strickland, 466

U.S. 668. Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195

S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006). Thus, we need not examine both Strickland

prongs if one cannot be met. Strickland, 466 U.S. at 697.

       First, Barnett must show that counsel‘s performance fell below an objective standard of

reasonableness in light of prevailing professional norms. Id. at 687–88. There is a strong

presumption that counsel‘s conduct fell within the wide range of reasonable professional

assistance and that the challenged action could be considered sound trial strategy. Id. at 689;

Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712

(Tex. Crim. App. 2000). Therefore, we will not second-guess the strategy of Barnett‘s counsel at

trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State,



                                                6
161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet. ref‘d).

       The second Strickland prejudice prong requires a showing that, but for counsel‘s

unprofessional error, there is a reasonable probability that the result of the proceeding would have

been different. Strickland, 466 U.S. at 687–88. A ―reasonable probability‖ is a probability

sufficient to undermine confidence in the outcome, meaning that counsel‘s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable. Smith, 286 S.W.3d at 340.

       Ineffective assistance of counsel has not been shown to have occurred in any way asserted

on appeal, because (a) failure to get Rowland‘s testimony may have been reasonable trial strategy,

(b) failure to seek a finding on lesser included offenses was not substandard, (c) failure to find and

submit mitigating evidence was not substandard, and (d) not objecting to particular evidence was

not substandard. We examine each complaint in turn.

       a.      Failure to Get Rowland’s Testimony May Have Been Reasonable Trial Strategy

       Barnett asserts, on appeal as he did in his motion for new trial, that his trial counsel

rendered ineffective assistance by failing to request a continuance to locate Rowland and in failing

to subpoena Rowland. A claim of ineffective assistance based on trial counsel‘s failure to call a

witness cannot succeed absent a showing that the witness was available to testify and that the

witness‘ testimony would have benefitted the defense. See Ex parte Ramirez, 280 S.W.3d 848,

853 (Tex. Crim. App. 2007).




                                                   7
       During the hearing on the motion for new trial, trial counsel, Jerry Coyle, testified that he

had not interviewed Rowland because he was unable to locate her. Although Rowland gave a

favorable written statement, Coyle believed ―that if she were to actually testify, it would be

harmful,‖ due to the volatile nature of their relationship. This opinion was developed after

Coyle‘s conversations with Barnett in which ―he and I pretty much came to the mutual decision

that it was a mistake to have her in the courtroom. In fact, he told me specifically, I don‘t want

you to call [Rowland].‖ Barnett had clarified to Coyle that ―he and Mrs. Rowland had gotten into

an argument and he had hit her, struck her. There was a misdemeanor charge to that effect, that he

essentially beat her up. He thought that she was not a reliable witness.‖

       Further information came from a private investigator hired by Coyle, providing perhaps the

most compelling reason why Rowland was not obtained as a witness. The investigator testified

that Rowland had given him the knife which was used in this case and that he had kept it in his

office. The investigator told Coyle about the knife, but its existence was not disclosed to the

State, and was instead kept unrevealed by the investigator after a conference with Coyle. After

the investigator‘s testimony, Coyle was recalled and explained he ―was happy that [Rowland]

went missing‖ because ―she was going to admit that she had the knife.‖

       We find that Coyle‘s conduct in choosing not to call a potentially damaging witness was

probably wise. It at least fell within the wide range of reasonable professional assistance and

constituted sound trial strategy, especially since he was aware Rowland had possessed the knife in



                                                 8
question at one point. Therefore, we find that Barnett cannot meet the first prong of the

Strickland test with respect to this ground of ineffective assistance.

       b.      Failure to Seek Finding on Lesser Included Offenses Was Not Substandard

       Coyle testified that, although Barnett believed he should be charged with a lesser included

offense, counsel‘s opinion was that he would likely be convicted of aggravated assault with a

deadly weapon. Counsel‘s response as to why he failed to request lesser included offenses was, ―I

didn‘t think of it,‖ and, ―I did not specifically look at the question of lesser offenses.‖ Coyle

testified that he would have requested lesser included offenses had he ―thought about it.‖

       However, Barnett filed a pro se motion mentioning terroristic threat as a lesser included

offense, which counsel read before trial. The clerk‘s record also included the police report from

the Sunriser incident, which listed the offense as terroristic threat and assault. When questioned

about the motion, counsel then stated that he ―did discuss‖ the lesser included offenses.

       Assuming that counsel‘s reasoning—that he did not consider lesser included

offenses—allows Barnett to meet the first Strickland prong, we examine whether Barnett would be

entitled to a lesser-included-offense instruction for terroristic threat and assault. To determine if a

defendant is entitled to a lesser-included-offense instruction, a two-prong test applies. Hall v.

State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). First, the lesser included offense must be

included within the proof necessary to establish the offense charged. Id.; Hampton v. State, 109

S.W.3d 437, 440 (Tex. Crim. App. 2003); Lofton v. State, 45 S.W.3d 649, 651 (Tex. Crim. App.



                                                  9
2001); Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994). If the person uses or exhibits

a deadly weapon while committing assault, he or she commits aggravated assault. TEX. PENAL

CODE ANN. § 22.02(a)(2).

        A person commits assault if he or she ―intentionally or knowingly threatens another with

imminent bodily injury.‖ TEX. PENAL CODE ANN. § 22.01(a)(2). Assault is a lesser included

offense of aggravated assault.

        A person commits the offense of terroristic threat if ―he threatens to commit any offense

involving violence to any person or property with intent to: . . . (2) place any person in fear of

imminent serious bodily injury.‖           TEX. PENAL CODE ANN. § 22.07(a)(2) (Vernon 2011).

Terroristic threat is not a lesser included offense in this case, because terroristic threat requires

proof of the intent to place someone in fear of imminent serious bodily injury—proof that is not

required for the charge of aggravated assault in this case. See TEX. CODE CRIM. PROC. ANN.

art. 37.09 (Vernon 2006); see also Runnels v. State, No. 05-98-01590-CR, 2000 WL 1256305, at

*4 (Tex. App.—Dallas Sept. 6, 2000, pet. ref‘d) (mem. op., not designated for publication); Jones

v. State, No. 05-96-01415-CR, 1998 WL 91298, at *4–5 (Tex. App.—Dallas Feb. 26, 1998, no

pet.) (not designated for publication).1

        As to the asserted right to a lesser included offense instruction on assault, we move to

consider the second prong. To establish that second prong, some evidence must exist in the

1
 Although these unpublished cases have no precedential value, we may take guidance from them ―as an aid in
developing reasoning that may be employed.‖ Carillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet.
ref‘d).

                                                      10
record that would permit a jury rationally to find that, if the defendant is guilty, he or she is guilty

only of the lesser included offense. Hampton, 109 S.W.3d at 440. In other words, there must be

some evidence from which a rational jury could acquit Barnett of aggravated assault while

convicting him of the lesser included offense of assault. In making this decision, we evaluate the

evidence in the context of the entire record, and do not consider whether the evidence is credible,

controverted, or in conflict with other evidence. Id.

        We have already found the evidence sufficient to convict Barnett of aggravated assault.

We note that one element distinguishing aggravated assault from assault is the use or exhibition of

a deadly weapon. In his brief, Barnett argues that: no evidence was offered as to the knife‘s

sharpness; Flynn2 did not see ―the Appellant hold the pocket knife near the complainant but rather

saw the tip of the knife in Appellant‘s hand which he held at his side‖; although Flynn was a few

feet away, ―she never saw the Appellant try to cut Bryan nor did she see Appellant shove him‖; and

Wagner did not see anything in Barnett‘s hands and testified he did not shove Bryan. Even

assuming these statements were true, they do not constitute evidence that Barnett did not hold a

knife to Bryan‘s person or otherwise threaten him with it. The statements made by Flynn and

Wagner address only their observations from their respective locations in the Sunriser and did not

negate the allegation that Barnett held a pocket knife to Bryan‘s ribs or threatened him while

displaying it. In other words, the brief does not reference evidence from which a rational jury

2
 Flynn testified she saw Barnett ―standing in the doorway with his hand down to his side‖ after she ―turned back
around,‖ meaning that she did not witness the entire altercation. Wagner also testified that she did not witness the
entire altercation.

                                                        11
could acquit Barnett of aggravated assault while convicting him of the lesser included offense of

assault.

           We conclude that, because Barnett cannot meet the Strickland second prong, Coyle‘s

failure to request an instruction on the lesser included offense of assault did not deny Barnett

effective assistance of counsel.

           c.     Failure to Find and Submit Mitigating Evidence Was Not Substandard

           Next, Barnett‘s motion and affidavit alleged that counsel failed to offer any mitigating

evidence at punishment, including evidence that Barnett had been diagnosed as having various

mental illnesses, was bipolar, and ―had treatment at MHMR.‖ Barnett‘s affidavit additionally

stated, ―In fact, my attorney just asked me if I wanted to tell the jury anything. I did not know

what to say. He just did not ask me any questions.‖

           We interpret Barnett‘s motion and affidavit as alleging that counsel generally failed to

investigate the possibility of mitigating evidence, including Barnett‘s mental condition. ―The

sentencing stage of any case, regardless of the potential punishment, is ‗the time at which for many

defendants the most important services of the entire proceeding can be performed.‘‖ Milburn v.

State, 15 S.W.3d 267, 269 (Tex. App.—Houston [1st Dist.] 2000, pet. ref‘d) (quoting Vela v.

Estelle, 708 F.2d 954, 964 (5th Cir.1983)).            ―Where the potential punishment is life

imprisonment, as in the instant matter, the sentencing proceeding takes on added importance.‖ Id.

(citing Vela, 708 F.2d at 964). In a case where the issue is ―whether trial counsel conducted an



                                                  12
adequate investigation for potential mitigating evidence, ‗we focus on whether the investigation

supporting counsel‘s decision not to introduce mitigating evidence of [Barnett‘s] background was

itself reasonable.‘‖ Freeman v. State, 167 S.W.3d 114, 117 (Tex. App.—Waco 2005, no pet.)

(quoting Wiggins v. Smith, 539 U.S. 510, 523 (2003)). While ―Strickland does not require

counsel to investigate every conceivable line of mitigating evidence,‖ ―counsel can . . . make a

reasonable decision to forego presentation of mitigating evidence [only] after evaluating available

testimony and determining that it would not be helpful.‖ Wiggins, 539 U.S. at 533; Milburn, 15

S.W.3d at 270; see also Williams v. Taylor, 529 U.S. 362 (2000). Counsel‘s representation will

be deficient, however, if a sufficient pretrial investigation is not performed. Wiggins, 539 U.S. at

521; Freeman, 167 S.W.3d at 117.

       Barnett‘s medical records from Lakes Regional MHMR Center demonstrate he was

diagnosed with bipolar disorder May 22, 2009, a few months before the incident at the Sunriser.

Barnett, who had been recently released from prison after twelve years and could not find

employment, also experienced depression, sleep disorder, ―problems not eating (reports has lost 45

lbs in 4 months.) isolation, agitation, anger, anxiety, crying spells, racing thoughts, feelings of

hopelessness/worthlessness.‖ Coyle stated that had he known Barnett‘s medical records revealed

such conditions, he would have placed that evidence in front of the jury during punishment.

However, Coyle did investigate and inquire into the possibility of mitigating evidence.

       At the hearing on the motion for new trial, Coyle testified:



                                                13
         Mr. Barnett was a difficult client. I talked to him at length as long as I could
         because he was really hard to talk to about what I could find to try to mitigate
         potential punishment. I didn‘t find anything. I finally hit on the only possibility
         was to talk to his mother who lives here in Lamar County, Paris[,] I believe, as I
         recall. I talked to his mother. I talked to her on the phone. I tried to persuade
         her to come down and testify on his behalf. She wouldn‘t come.

         Coyle admitted that he did not specifically inquire about Barnett‘s past medical treatment.

Counsel is not required, however, to always investigate a defendant‘s psychiatric history to meet

the effective-assistance-of-counsel standard.3 See Purchase v. State, 84 S.W.3d 696, 700–01

(Tex. App.—Houston [14th Dist.] 2002, pet. ref‘d). Coyle stated that, although Barnett was

difficult, counsel was not put on notice of any potential mental issues. The investigator hired by

counsel also did not discover any mitigating evidence. When assessing the reasonableness of

counsel‘s investigation, we ―must consider the quantum of evidence already known to counsel and

whether the known evidence would lead a reasonable attorney to investigate further.‖ Martinez,

195 S.W.3d at 721 (citing Wiggins, 539 U.S. at 527). Barnett‘s briefing does not suggest any

facts which would lead a reasonable attorney to investigate further, and the record reveals that,

although counsel spoke with Barnett and his mother regarding the possibility of mitigating

evidence, none was uncovered.

         An investigation into every defendant‘s mental health history is not required. Because


3
 During the hearing on the motion for new trial, the investigator hired by Coyle stated that Rowland had informed him
―they were both extremely opposite of each other. She said they were—I don‘t know if she used the term bipolar.
She said she was bipolar. She says, when I‘m up, he‘s got to be down—when he‘s down, I‘ve got to be up, and when
I‘m down, he‘s got to be up, to protect each other.‖ We do not know whether this specific communication was
relayed to counsel.

                                                         14
counsel conducted an investigation, but no evidence of mental illness was revealed, Barnett cannot

meet the first Strickland prong of showing counsel‘s substandard actions. We overrule this issue.

       d.      Not Objecting to Particular Evidence Was Not Substandard

       Barnett complains of a few pieces of evidence, the failure to object to which is alleged to be

ineffective on the part of his trial counsel. Failing to object to the testimony specified by

Barnett‘s appellate brief was not substandard, because (i) prison disciplinary records may have

been admissible, (ii) the undisclosed ―expert‖ witness did not testify as an expert, (iii) failing to

object to evidence of prior arrests may have been reasonable trial strategy, (iv) the voir dire

statement on community supervision was not objectionable, (v) not objecting to Bryan‘s testimony

may have been reasonable trial strategy, (vi) not objecting to photographs of Rowland‘s injuries

may have been reasonable trial strategy, and (vii) Poole‘s victim-impact testimony was

admissible.

               (i)     Prison Disciplinary Records May Have Been Admissible

       Barnett complains that counsel failed to object to testimony the State elicited from Barnett,

during the punishment phase, regarding his prison and jail disciplinary violations. The brief

suggests that Coyle should have objected to the testimony on the basis that this evidence was not

timely disclosed. The Texas Code of Criminal Procedure provides:

       evidence may be offered by the state and the defendant as to any matter the court
       deems relevant to sentencing, including but not limited to the prior criminal record
       of the defendant, his general reputation, his character, an opinion regarding his
       character, the circumstances of the offense for which he is being tried, and,


                                                 15
           notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence
           of an extraneous crime or bad act that is shown beyond a reasonable doubt by
           evidence to have been committed by the defendant or for which he could be held
           criminally responsible, regardless of whether he has previously been charged with
           or finally convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2010). Notice of intent to

introduce such evidence must be given by the State if ―the defendant makes a timely request to the

attorney representing the state for the notice.‖ TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g)

(Vernon Supp. 2010).

           The record is silent on why counsel failed to object, and we will not speculate on counsel‘s

trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The State‘s

notice of intent to introduce extraneous offenses stated, ―The State intends to introduce each and

every extraneous offense, crime, wrong and act of the Defendant noted below as well as those

identified in offense reports or other documents and recording presented in the State‘s file.‖ The

trial court‘s discovery order directed the State to disclose ―[t]he criminal history of the Defendant

as recorded in the TCIC4 records together with all other crimes, wrongs and acts of which the

prosecution has actual knowledge.‖ Therefore, it is quite possible that counsel failed to object to

these extraneous offenses on the basis of notice under Article 37.07 of the Texas Code of Criminal

Procedure because he had knowledge of such offenses.

           We find Barnett has failed to meet the first Strickland prong as to this evidence.

                    (ii)    The Undisclosed “Expert” Witness Did Not Testify as an Expert
4
    TCIC may refer to the Texas Crime Information Center.

                                                            16
       Barnett also complains that, although the testifying officer was designated as an expert on

fingerprint identification, he was not disclosed as an expert witness on the issue of whether the

pocket knife constituted a deadly weapon. Thus, Barnett argues his counsel‘s failure to object to

the officer‘s testimony as an expert witness on the issue of the deadly-weapon finding constituted

ineffective assistance of counsel.

       Before the police officer testified to his opinion that the knife was a deadly weapon, Coyle

lodged the objection that, ―Your Honor, I object. I don‘t think this witness is qualified as an

expert under the law.‖ After Coyle elicited testimony from the officer that no special training or

expertise is required to draw a conclusion that an object is a deadly weapon, the trial court

sustained the objection and instructed the prosecution, ―You‘ll not designate him as an expert.‖

However, the court allowed testimony ―to the fact that a knife can be a deadly weapon.‖

       Although the record does not state why Coyle did not object that the officer was not

designated as an expert on the deadly-weapon issue, we assume it was because the officer testified

as just a lay witness on the deadly-weapon issue per the trial court‘s ruling. We may also assume

that Coyle did not object because the law allows the fact-finder to determine whether an object was

a deadly weapon based on lay witness testimony alone. Cruz v. State, 576 S.W.2d 841, 842 (Tex.

Crim. App. 1979); Bailey v. State, 46 S.W.3d 487, 492 (Tex. App.—Corpus Christi 2001, pet.

ref‘d); Bui v. State, 964 S.W.2d 335, 345 (Tex. App.—Texarkana 1998, pet. ref‘d).

       Barnett has failed to meet the first Strickland prong as to this evidence.


                                                17
               (iii)   Failing to Object to Evidence of Prior Arrest May Have Been Reasonable
                       Trial Strategy

       Barnett argues that counsel should have objected to the following direct testimony by

Bryan on the basis that it introduced an extraneous offense:

       A.      . . . I told him I was going to call the law if he didn‘t settle down.

       Q.      What was [Barnett‘s] response to that?

       A.      He—call the law, I‘ve been arrested before.

       Because the record is silent as to why counsel failed to object, we employ the strong

presumption that Coyle‘s conduct, in possibly refusing to draw the jury‘s attention to the

extraneous offense through an objection, could be considered sound trial strategy. Also, the

constitutional right to counsel does not mean Barnett‘s counsel was required to be errorless.

Alberts v. State, 302 S.W.3d 495, 507 (Tex. App.—Texarkana 2009, no pet.) (citing Ingham v.

State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). For this reason, an isolated failure to object

to improper evidence does not constitute ineffective assistance of counsel. Id. Therefore, we

find Barnett cannot meet the first Strickland prong.

               (iv)    The Voir Dire Statement on Community Supervision Was Not
                       Objectionable

       Barnett‘s brief complains of the following:

       During her voir dire, the prosecutor informed the jury that the range of punishment
       for an aggravated assault with a deadly weapon is a second degree felony. She
       then informed the jury that if the State proved a defendant had a prior conviction the


                                                 18
       punishment range increased from five to 99 years or life. The prosecutor went on
       to ask the jurors if they could consider the full range of punishment from 2 years to
       life in prison. The prosecutor went on to make the following comment:

       Q.     Is there anyone here who cannot consider the full range of punishment?
       This is really important? Probation is not an option in this case, we‘re talking
       about TDC time. Okay?

(References to record omitted.) Barnett argues ―the prosecutor specifically implied to the jury

that Appellant had been convicted of a crime,‖ because ―[h]ad the State been unable to prove a

prior felony conviction, then the range of punishment would have included the possibility of

probation.‖

       We do not agree with Barnett‘s premise that the State necessarily implied Barnett‘s prior

conviction when stating community supervision was not an option. The option of community

supervision, even if otherwise available, may become unavailable under other circumstances, such

as a defendant‘s failure to file an application for community supervision or his or her decision to

forego that option.

       In any event, both sides have the right to discuss range of punishment.

       The Texas Court of Criminal Appeals has stated repeatedly that both the state and
       the accused have the right to inform the jury of the range of punishment applicable
       to an offense, including a range that is enhanced, and to qualify the panel on the full
       range of punishment. Martinez v. State, 588 S.W.2d 954, 956 (Tex. Crim. App.
       [Panel Op.] 1979); Bevill v. State, 573 S.W.2d 781, 783 (Tex. Crim. App. 1978).
       Under this formulation, the state may inform the jury panel of the range of
       punishment applicable if the state was to prove a prior conviction for enhancement
       purposes, but the state may not inform the jury of any specific allegations contained
       in an enhancement paragraph of a particular defendant‘s indictment. Frausto v.
       State, 642 S.W.2d 506, 509 (Tex. Crim. App. [Panel Op.] 1982); Estes v. State, 873


                                                 19
       S.W.2d 771, 773 (Tex. App.—Fort Worth 1994, pet. ref‘d).

Jackson v. State, 285 S.W.3d 181, 183–84 (Tex. App.—Texarkana 2009, no pet.). Because we do

not have counsel‘s reasons for failing to object, we may presume that it was due to a sound trial

strategy. Coyle may have believed, as do we, that the State‘s statements did not inform the jury

that Barnett was a felon, but simply discuss range of punishment. Therefore, we find Barnett

cannot meet the first Strickland prong on this issue.

               (v)       Not Objecting to Bryan’s Testimony May Have Been Reasonable Trial
                         Strategy

       Bryan testified that Barnett ―shoved me away, I guess to prevent me from getting my cell

phone out.‖ Bryan also testified, ―I very well felt he would cut me.‖ Barnett argues that

counsel‘s failure to object to these allegedly speculative statements constituted ineffective

assistance of counsel.

       A witness can testify in the form of an opinion if that opinion is rationally based on their

perception and is helpful to the determination of a fact issue. TEX. R. EVID. 701; White, 160

S.W.3d at 53 (counsel not deficient in failing to object to statement by witness of her belief

defendant intentionally drove over victim). Here, Bryan‘s statement that Barnett shoved him to

prevent Bryan from calling the authorities came after his testimony that he ―told [Barnett he] was

going to call the law‖ and that Bryan ―reached for my cell phone.‖ It appears that Bryan was

testifying based on his perception and that such testimony was relevant to rebut Barnett‘s claim of

self-defense, specifically that he shoved Bryan because he believed Bryan was reaching for a


                                                20
knife. Counsel may have also felt Bryan‘s opinion that Barnett ―would cut me‖ was based on

perception and helpful to the determination of whether Bryan felt threatened by Barnett‘s actions.

Again, we do not speculate to find trial counsel ineffective when the record is silent on counsel‘s

reasoning or strategy. See Wood v. State, 260 S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.]

2008, no pet.).

       Also, Barnett complains that Coyle failed to ask for a mistrial after his objection to the

following statement was sustained: ―I believe that—if 911 hadn‘t been called and the other

patrons of the restaurant and employees come to my aid, I would‘ve been cut.‖ After Coyle‘s

objection was sustained, the court instructed the jury to disregard the statement. It is possible that

counsel failed to seek a mistrial because (1) he did not believe Bryan‘s statement was so

emotionally inflammatory that the curative instruction was insufficient to remove prejudice, (2) he

did not want to risk any negative impression which may have been held by the jury if the motion

for mistrial was denied, or (3) he presumed the jury would follow the court‘s instructions. See

Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987).

       We find that Barnett failed to meet the first Strickland prong on this issue.




                                                 21
               (vi)    Not Objecting to Photographs of Rowland’s Injuries May Have Been
                       Reasonable Trial Strategy

       Barnett complains that Coyle failed to object during punishment to photographs of

Rowland‘s injuries, which a police officer, from her personal knowledge, testified appeared on

Rowland on the day of the Sunriser incident. Barnett argues that, because Rowland was not

available to testify, ―the State had no evidence that Appellant had inflicted any injuries on

Rowland. Therefore, the evidence was irrelevant and constituted hearsay.‖ Barnett agrees that

the State can introduce evidence of extraneous offenses ―regardless of whether [Barnett] was

previously charged‖ if the act was committed by him.



       Again, we are not provided with counsel‘s reasons for failing to object. Counsel was

aware, however, that Barnett planned to testify during punishment.            Barnett did not deny

becoming involved in a physical altercation with Rowland. He stated that they started ―arguing

about . . . whether we should go to the casino‖ and that Rowland ―was driving real fast talking

about she was going to kill me and her both. She was going to commit suicide. I reached over

and killed the truck.‖ Barnett claimed they began fighting over car keys. To describe the

altercation, he used the following words and phrases: ―we were wrestling,‖ ―[w]e struggled,‖ ―I

tried to hold her in the truck,‖ ―I finally pushed her off,‖ and ―I‘m just trying to hold her, really.

That‘s how the red marks got on her face and her nose.‖ Barnett admitted that the injuries




                                                 22
depicted on Rowland were caused by him, but attempted to justify the actions causing the injuries

as innocent ―struggle[s] over the key.‖

       Therefore, it is possible that counsel decided not to object to the photographs because he

was aware Barnett was going to testify and that, if any objection to the photographs were sustained

during the officer‘s testimony, they could be reintroduced during Barnett‘s testimony. We find

Barnett has failed to meet the first prong of Strickland on this issue.

               (vii)    Poole’s Victim-Impact Testimony Was Admissible

       Shelia Poole was a victim of an earlier assault by Barnett. She testified, ―[Barnett] carried

me out to the woods and started beating . . . [a]nd he beat me over and over and over.‖ Poole said

Barnett beat her with

       [e]verything he could find, fly swatters, toy guns, his fists. He put rocks in a
       shirt—he says, it was a shirt—beat me with that. Drug me back and forth. . . .
       [f]rom one spot to the other in the woods. He would jump up and down on my
       back. I would pass out. Whenever I would come to, he would still be beating me.
       Finally he got tired. After about 36 hours or something like that, he got tired and
       laid down and I got away. . . . He beat me between my legs with a toy gun. . . . [and
       said] he would make it where no other man would ever want to touch me.

       Barnett takes exception to Poole‘s testimony recalling, ―I was bruised from head to toe, all

over my body. I did get a head injury out of it. That‘s why I‘m on disability.‖ He also

complains that Poole testified that she was not able to work and lives on disability as a result of the

incident. Barnett argues that counsel was ineffective in failing to object to Poole‘s statements as

impermissible victim-impact testimony. He cites authority that, although the trial court has wide



                                                  23
discretion to admit relevant evidence during the punishment phase of trial, victim-impact

testimony regarding a victim not named in the indictment is inadmissible. Haley v. State, 173

S.W.3d 510, 518 (Tex. Crim. App. 2005) (evidence from mother of extraneous murder victim

disallowed); Cantu v. State, 939 S.W.2d 627, 637 (Tex. Crim. App. 1997) (same).                                 Note,

however, the scope of the definition. Victim-impact evidence is that which shows the collateral

effect of an offense—that is, the effect on people other than the victim of the offense—whether the

offense being referenced by the evidence is the charged offense or an extraneous one. Roberts v.

State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007). Thus, evidence from victims of extraneous

offenses is admissible; it is not victim-impact evidence. Smith v. State, 238 S.W.3d 512, 515

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Roberts, 220 S.W.3d at 531) (testimony in

sentencing phase of trial by victim of extraneous robbery who described how robbery emotionally

affected her not victim-impact evidence).                Because Poole‘s testimony was admissible, we

conclude Coyle was not required to object to it. Barnett cannot meet the first Strickland prong as

to this evidence.5



5
 Had we found that Barnett was able to meet the first prong of Strickland on any claim of ineffective assistance of
counsel during punishment, he would also be required to demonstrate that there was a reasonable probability that the
result of the proceeding would have been different absent counsel‘s error. Strickland, 466 U.S. at 687–88. We
would look to the sentence to begin the analysis. We note that, after finding Barnett had previously been convicted of
two felonies, the jury was instructed that the punishment range was ―not less than twenty five (25) years nor more than
ninety-nine (99) years or Life.‖ The jury assessed punishment of fifty years‘ imprisonment. We would also look to
the evidence presented during punishment. The jury‘s punishment assessment followed proof of prior convictions
including one charge of aggravated assault with a deadly weapon, one charge of injury to a child, one charge of theft,
two charges of possession of marihuana, one charge of criminal mischief, one charge of proof of financial
responsibility, one charge of driving while intoxicated, and one charge of failure to maintain insurance.

                                                         24
       Because Barnett cannot meet the requirements of Strickland for any of his

ineffective-assistance-of-counsel claims omitted from the discussion during the trial court‘s

hearing on the motion for new trial, we overrule these ineffective assistance points of error.

(3)    Officer’s Testimony that the Knife Was a Deadly Weapon Was Lay Testimony

       Barnett complains that the trial court erred in allowing a police officer to testify as an

expert concerning the deadly weapon issue.           This point is without merit.       The record

demonstrates that, after an objection by Coyle, and argument that an expert is not required for

testimony on the deadly weapon issue, the trial court ruled, ―You‘ll not designate him as an

expert.‖ The trial court allowed the officer to testify ―to the fact that a knife can be a deadly

weapon‖ as a lay witness. See Cruz, 576 S.W.2d at 842–43; Bui, 964 S.W.2d at 345 (expert

testimony not required for deadly weapon finding). We overrule this point of error.

(4)    Appellate Complaint of Bolstering Was Not Preserved

       Barnett next argues that the trial court erred in allowing the police officer‘s testimony over

objections that the testimony constituted improper bolstering. The complained-of exchange is set

forth below:

               [State‘s Attorney]:   Your Honor, I think we‘ve laid pretty good predicate
       for Sergeant Springer‘s qualifications. He is qualified to render an expert opinion
       on whether or not a weapon was used in a manner that it was capable of causing
       death or serious bodily injury. He is capable of describing and giving opinion
       testimony of the usage of a deadly weapon, sir. We move that he be designated as
       an expert.

               [Defense Attorney]: Your Honor, I object. The witness has testified that


                                                25
         it doesn‘t require special training, but this is something within the ordinary body of
         knowledge of any ordinary person. It depends entirely on the circumstance. It
         doesn‘t require an expert. What they‘re trying to do is bolster their testimony by
         putting on an expert witness to testify to something that‘s within the ordinary
         province of the jury. I object to using expert testimony just to bolster their case.

Coyle‘s objection to the court regarding bolstering complained only of the officer‘s testimony as

an expert witness. The trial court sustained counsel‘s objection. Because Barnett received the

relief requested, this point of error is not preserved for our review. TEX. R. APP. P. 33.1.6

(5)      Barnett Was Not Entitled to the Appointment of a Different Attorney

         After two previous attorneys had withdrawn from their representation of Barnett, the trial

court appointed Coyle to the case. Barnett filed a pro se motion ―for the Court to appoint either

new counsel or allow him to proceed pro se.‖ ―After the court made it clear that [Barnett] would

be allowed to represent himself but would be held to the standards of a lawyer, [Barnett] asked to

allow trial counsel to remain.‖ Prior to voir dire, the following exchange occurred:

                 [Defendant]: I have been forced to keep this lawyer, yes. . . . I agreed not
         to represent myself.

                  THE COURT:                 I‘m denying all your motions.

                 [State‘s Attorney]:    Mr. Barnett, we‘re not going to be back here on
         ineffective assistance of counsel. You have an absolute right to represent yourself.

                  [Defendant]: He is ineffective.

6
 Moreover, improper bolstering occurs ―when one item of evidence is improperly used by a party to add credence or
weight to some earlier unimpeached piece of evidence offered by the same party.‖ Guerra v. State, 771 S.W.2d 453,
474 (Tex. Crim. App. 1988). Barnett‘s brief fails to address what ―earlier unimpeached piece of evidence‖ would be
bolstered by the officer‘s testimony. Thus, Barnett‘s briefing would also be inadequate to preserve this error for our
review.

                                                         26
              [State‘s Attorney]:     You have an absolute right to represent yourself, and
       we brought that to your attention.

              [Defendant]: I don‘t want to represent myself, but this guy is ineffective.
       He says so in that motion that he filed to withdraw, and I filed a motion to terminate
       him….

              [Defense Attorney]: . . . Your Honor, I renew my motion to withdraw. If
       Mr. Barnett wants me off the case, that‘s fine with me.

The trial court denied the motion to withdraw.

       We review a trial court‘s denial of a motion to withdraw for abuse of discretion. King v.

State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). A trial judge is under no duty to search until

he finds an attorney agreeable to the defendant. Lyles v. State, 582 S.W.2d 138, 141 (Tex. Crim.

App. [Panel Op.] 1979); Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976). Once the

court has appointed an attorney to represent the indigent defendant, the defendant has been

accorded the protections provided under the Sixth and Fourteenth Amendments and Article 26.04

of the Texas Code of Criminal Procedure, and the defendant then carries the burden of proving

entitlement to a change of counsel. Webb, 533 S.W.2d at 784. Barnett argues that the trial court

erred in continuing Coyle‘s representation because ―[t]he relationship between Appellant and trial

counsel was so adverse as to render counsel ineffective in representing the Appellant.‖ The

record demonstrates that Barnett was a difficult client, which resulted in the trial court granting

two motions to withdraw from attorneys previously appointed to represent Barnett. However,

because ―personality conflicts and disagreements concerning trial strategy are typically not valid


                                                 27
grounds for withdrawal,‖ we find that the trial court did not abuse its discretion in declining

appointment of new counsel on the day of trial. King, 29 S.W.3d at 566. This point of error is

overruled.

(6)       The Mistrial Motion Was Properly Denied

          The trial court had granted a motion in limine to prevent introduction of evidence that

Barnett had given Rowland a bullet with her name on it after the incident, and had determined that

such evidence was irrelevant. While questioning a witness, the State asked, ―Did you see that

bullet that [Rowland] had?‖ The question drew an immediate objection and counsel ―request[ed]

an instruction of the jury and mov[ed] for a mistrial.‖ The trial court instructed the jury, ―You

disregard anything she said about a bullet or whatever.‖

          We review a trial court‘s denial of a motion for mistrial under an abuse-of-discretion

standard and must uphold the trial court‘s ruling if it was within the zone of reasonable

disagreement. Towery v. State, 262 S.W.3d 586, 598 (Tex. App.—Texarkana 2008, pet. ref‘d)

(citing Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007)). Mistrial is an appropriate

remedy only when objectionable events ―are so emotionally inflammatory that curative

instructions are not likely to prevent the jury from becoming unfairly prejudiced against the

defendant.‖ Hines v. State, 269 S.W.3d 209, 215 (Tex. App.—Texarkana 2008, pet. ref‘d,

untimely filed; pet. ref‘d [2 pets.]) (quoting Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App.

2004)).



                                                28
       Here, the trial court instructed the jury to disregard the question about the bullet, an

instruction we presume the jury followed. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.

1999). When evaluating the effectiveness of a curative instruction to disregard, we look to ―the

nature of the [improper comment]; the persistence of the prosecutor; the flagrancy of the violation;

the particular instruction given; the weight of the incriminating evidence; and the harm to the

accused as measured by the severity of the sentence.‖ Searcy v. State, 231 S.W.3d 539, 549 n.10

(Tex. App.—Texarkana 2007, pet. ref‘d) (quoting Roberson v. State, 100 S.W.3d 36, 41 (Tex.

App.—Waco 2002, pet. ref‘d)).

       The witness did not respond to the State‘s question. No reference was made in the

question that Barnett had provided Rowland with the bullet, or that the bullet had her name on it.

The State apologized for the mistake and did not mention the bullet thereafter. The jury was

instructed to disregard anything said about the bullet, which the court had ruled previously was

irrelevant. Because the question asked, by itself, did not indicate any bad act by Barnett, we find

that the instruction cured any improper comment. Because the curative instruction was sufficient,

we conclude the trial court did not err in denying the motion for mistrial.

       This point of error is overruled.

(7)    A Definition of Serious Bodily Injury Was Not Required

       Barnett also asserts that the trial court erred by failing to include the statutory definition of

―serious bodily injury‖ in the jury charge. A jury charge should set forth the law applicable to the



                                                  29
case. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). When alleged jury charge errors

are brought forward on appeal, we must first determine whether they are error. Abdnor v. State,

871 S.W.2d 726, 731 (Tex. Crim. App. 1994); Remsburg v. State, 219 S.W.3d 541, 547 (Tex.

App.—Texarkana 2007, pet. ref‘d). We then determine whether the appellant preserved the

alleged error at trial. Remsburg, 219 S.W.3d at 547. Because Barnett did not object during trial,

―the ‗appropriate standard [of review] is the one for fundamental error in the charge.‘‖ Id. (citing

Jimenez v. State, 32 S.W.3d 233, 239 (Tex. Crim. App. 2000)); see also Stokes v. State, 74 S.W.3d

48, 50 (Tex. App.—Texarkana, pet. ref‘d). This standard means we should not reverse the trial

court‘s judgment ―unless the error appearing from the record was calculated to injure the rights of

the defendant, or unless it appears from the record that the defendant has not had a fair and

impartial trial.‖ Id. (citing TEX. CODE CRIM. PROC. ANN. art. 36.19 (Vernon 2006); Abdnor, 871

S.W.2d at 732)). The degree of harm demonstrated must be actual, not merely theoretical.

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984) (op. on reh‘g); Taylor v. State, 146

S.W.3d 801, 804 (Tex. App.—Texarkana 2004, pet. ref‘d).

       Barnett‘s claim is analogous to the facts of Remsburg. Remsburg was charged with

aggravated assault on a public servant. Remsburg, 219 S.W.3d at 547. The indictment alleged

that Remsburg ―did intentionally or knowingly cause bodily injury to Greg Wilson, a public

servant . . . and the defendant did use or exhibit a deadly weapon during the commission of the

assault.‖ Id. Because the State was not required to prove Wilson suffered serious bodily injury,



                                                30
and the term did not appear in the indictment, we held that submission of a separate definition of

serious bodily injury ―would be relevant only to further explain the definition given by the trial

court for the term ‗deadly weapon.‘‖ Id. at 547–48. We further found the briefing in Remsburg

insufficient as it failed to ―show what evidence in the record demonstrate[d] actual harm.‖ Id. at

548.

       Similarly, in this case the State alleged Barnett ―did then and there intentionally and

knowingly threaten imminent bodily injury to James Bryan by threatening to cut James Bryan and

the defendant did use or exhibit a deadly weapon during the commission of the assault, to-wit: a

knife.‖ As in Remsburg, the State was not required to prove that Bryan suffered serious bodily

injury, the term serious bodily injury did not appear in the indictment, and the trial court defined

deadly weapon as one ―capable of causing death or serious bodily injury.‖ Also as in Remsburg,

Barnett‘s briefing has failed to demonstrate actual harm in light of the trial court‘s deadly weapon

definition. Therefore, we overrule this point of error.

       For the reasons given, we affirm the trial court‘s judgment.



                                                     Josh R. Morriss, III
                                                     Chief Justice

Date Submitted:        June 8, 2011
Date Decided:          June 14, 2011

Publish



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